New York & R. Cement Co. v. Davis
| Decision Date | 13 January 1903 |
| Parties | NEW YORK & R. CEMENT CO. v. DAVIS et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Third department.
Action by the New York & Rosendale Cement Company against W. Jerome Davis and others. From a judgment of the appelalte division (71 N. Y. Supp. 185) affirming a judgment for defendants, plaintiff appeals. Affirmed.
This is a taxpayers' action, brought to restrain the trustees of the village of Rosendale from issuing bonds to purchase the waterworks plant in that village, in pursuance of a contract between the village and the water company for a supply of water, which reserved and option to the village to purchase the waterworks at any time within five years for the sum of $40,000. In March, 1900, the trustees of the village submitted at the annual election the following proposition for vote: ‘Resolved, shall there be raised upon the village of Rosendale the sum of $40,000 for the purchase of the waterworks system from the Rosendale Waterworks Company?’ The election officers certified that the number of votes cast on this proposition was 91, of which 52 were in favor of the proposition, and 39 against it. Subsequently the board of trustees adopted a resolution to purchase the waterworks for $40,000, and to issue bonds therefor. The bonds were prepared, but are still in the hands of the village treasurer, unissued. It is claimed, among other things, that the resolution was insufficient to authorize the issue of the bonds, and authorized by its terms only the raising of the $40,000 by taxation.Howard Chipp and Amos Van Etten, for appellant.
John J. Linson, for respondent taxpayers.
John G. Van Etten, for respondent Rosendale Waterworks Co.
John E. Hardenbergh, for respondent board of trustees of village of Rosendale.
PARKER, C. J. (after stating the facts).
That a village, the total annual expenses of which were but $5,000, and which could only muster 91 taxpaying inhabitants to vote upon the question whether the municipality should buy the waterworks from which it was obtaining its supply for village purposes, may have expected, from the form of that resolution, that it was voting to pay $40,000 in the next annual tax levy, does not seem to us either probable or possible. And we are quite prepared to assert that there was no such understanding on their part, since we have read the resolution upon which they voted and which, with a notice that it was to be voted upon, had been duly posted for quite a period of time and published in the local newspapers, together with the statement by the village authorities, likewise posted and published, of the expenses for the ensuing year, as passed by the board of trustees of the village at the same meeting at which it was resolved to submit the question whether the option with the waterworks company should be taken advantage of. This statement contained the following items:
+------------------------+
¦Highway fund ¦$2,075 00¦
+--------------+---------¦
¦Ordinary fund ¦2,000 00 ¦
+--------------+---------¦
¦Water fund ¦925 00 ¦
+------------------------+
Certainly the taxpayers were not led to expect that any portion of the moneys thus to be raised was to constitute the fund for the purchase of the waterworks. They knew that they were voting under a statute which would permit them, in the event that a majority should vote in favor of purchasing the waterworks, to buy and pay for them by the proceeds of bonds covering the property of the village; and, logically and necessarily, their vote in favor of the resolution would seem to command that action on the part of the village trustees, who were authorized to act for the village under the statute.
The action taken under the statute was regular in all respects, unless it be true that the form of the resolution was so far a mistake as to invalidate all action. The resolution upon which the people voted read as follows: ‘Resolved, shall there be raised upon the village of Rosendale the sum of $40,000 for the purchase of the waterworks system from the Rosendale Waterworks Company?’ Now, it is said that we should hold that the vote of the people that there shall ‘be raised upon the village of Rosendale’ did not mean that the $40,000 should be borrowed by the issue of its bonds. The statute permitted the people to provide for the payment by borrowing upon bonds, but it is urged that the people did not authorize it. This suggestion is so aptly...
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