205 A.D. 691 | N.Y. App. Div. | 1923
Williamsville is a small village in Erie county with a population by the census of 1920 of 1,753. It owns a system of water works controlled by a board of water commissioners.
There was evidently some dissatisfaction with the water supply, the nature of which does not fully appear in the record. As a result of some agitation, a proposition was submitted to the voters in September, 1920, as to whether or not the village would contract with the Western New York Water Company for a different supply.
At this election it appears that the election officers first announced that the proposition was defeated by one vote; they then announced that the vote was a tie, and finally declared that it had been carried by one vote. An attempt to review the election was defeated on t he ground that the law furnishes no remedy in such a case. (Matter of Tamney v. Atkins, 209 N. Y. 202.)
The commissioners were then required to submit their plans for an additional water supply to the former State Water Power Commission which pending the proceedings therein was changed to the State Water Control Commission. (Conservation Law, §§ 521, 522, as amd. by Laws of 1921, chap. 499, and Laws of 1922, chap. 413.) After hearing all parties interested, the Water Control Commission on April 26, 1922, made a decision “ modifying ” the application and imposing certain conditions, which in brief were, that the existing system should be maintained until such time as an adequate fire protection could be given by the Western New York Water Company, the pumps should be equipped with suitable electric motors, devices for sterilizing should be maintained and used, complete plans and specifications should be submitted to the Commission and approved by it, and the project completely carried out within two years.
It is claimed on the part of the appellants that this modification to a large extent changed the plans submitted to the electors, and entailed an expense double in amount for operation for which no money had been specifically appropriated, and that in the judgment and discretion of said water commissioners it was not advisable to proceed further; and that that position was approved by a majority of the citizens of the village.
The respondent does not fully dispute these facts. He admits the cost would be increased and disagrees with the appellants only in the amount. He says that a large item of expense was due to a mistake in the decision of the Water Control Commission, and
The petitioner, who gives no further reason for his interest in the matter than that he is a resident of the village and the owner of real estate taxed therein, made a prior application for a peremptory mandamus order at Special Term, asking the same relief as is asked here. When the matter came on to be heard the same questions were raised and counsel disagreed as to the attitude of the voters in the village relative to the proposition as modified by the Water Control Commission. The board of water commissioners had already petitioned to resubmit the question but the board of trustees had declined. The court at Special Term suggested that the proposition be resubmitted to ascertain the will of the inhabitants of the village on the modified plan, and that action was taken. Both sides engaged in an active campaign by advertisements and circulars, calling attention of the voters to arguments for and against the proposition. The proposition was defeated by a majority of eleven. The court then on September 18, 1922, denied the application for the writ. The new proceeding was instituted by an order to show cause, dated November twenty-second following. The appellants allege, and it is not denied, that the voters have given further evidence of their disapproval of the plan by defeating candidates in the village election who were favorable to the proposition.
I have not discovered any new material facts shown on this application which were not before the Special Term on the prior application. An application for a mandamus order is a special proceeding. (Civ. Prac. Act, §§ 4, 5, 218, 1315, 1317, 1319; People ex rel. Curtis v. Kidney, 225 N. Y. 299; Fiero Spec. Proc. [3d ed.] 1351.) A final order determines the rights of the parties. An appeal must be taken from a peremptory mandamus order as from a final order made in a special proceeding. (Civ. Prac. Act, § 1337.) Unless the application is denied without prejudice or leave is granted, or the application is made on a new state of facts, a former determination in a special proceeding is res judicata, the same as a judgment. (23 Cyc. 1119, 1223; Matter of Roberts, 10 Hun, 253; revd., on other grounds, 70 N. Y. 5; Wilcox v. Gilchrist, 85 Him, 1; Matter
While a village is a municipal corporation (Gen. Corp. Law, § 3, subd. 1) it differs materially from a municipal corporation like a city, because it is only a small collection of houses in the country (Bouv. L. Dict. [Rawle’s 3d rev.] 3401; 40 Cyc. 208), and is a subordinate branch of the civil government. (Weismer v. Village of Douglas, 6 T. & C. 514, 519; affd., 64 N. Y. 91.) Unlike a city, the legislative power of its officers is limited and the sovereign right of legislation lies in the inhabitants. In this respect it greatly resembles a town, and its elections are in some respects similar to town meetings where legislation may be initiated by a certain number of taxpayers. (Village Law, § 56, as amd. by Laws of 1910, chap. 4, and Laws of 1922, chap. 237; Town Law, § 48, as amd. by Laws of 1916, chap. 79.) This system does not ordinarily prevail in populous cities. (Mills v. Sweeney, 219 N. Y. 213.) The Village Law permitted the board of water commissioners to contract with an individual or corporation for supplying water to the village for extinguishing fires, or other public purpose for a period of not longer than five years at a limited expense. (Village Law, § 220.) But if they desired to extend the mains, if the expense exceeded $1,000 in a village of the third class, as is tins village (Id. §■ 40), such extension could only be made when authorized by a proposition adopted at an election (Id. § 224, as amd. by Laws of 1913, chap. 557); or if money was to be borrowed upon bonds for such work, the proposition must be submitted to the voters (Id. § 128, subd. 6, as amd. by Laws of 1911, chap. 738); and only those who were owners of property assessed upon the last preceding assessment roll were entitled to vote. (Id. § 41, as amd. by Laws of 1919, chap. 33.) It is evident, therefore, that the governance of the village and the decision of all important questions were vested primarily in the taxpaying inhabitants.
Where a proposition has been defeated by a vote of the electors, it cannot again be submitted until the expiration of one year, or until the next annual election. (Id. § 56-a, as added by Laws of 1917, chap. 541.) The statute is silent on the subject of submitting a proposition for reconsideration or rescission. Such silence does not, in my opinion, forbid it. It should not be impossible to remedy hasty and ill-advised action by those who took that action but later discovered their mistake. It
The board of water commissioners when confronted by a new situation entailing additional expense, might well hesitate to proceed further, particularly where a bond issue had been voted for a definite and specific purpose. It was a question which called for the exercise of judgment and discretion in carrying out the public will. The law had provided a method by which they might seek the advice and mandatory direction of the fundamental legislative power of the village. When that advice and direction were obtained, I see no reason why the court should interfere to set aside the decision of the electors. It rests with the inhabitants of small villages to determine how far they shall be taxed to provide public improvements. They may or may not, as they please, have pavements, fire protection, sewers, water works or other improvements now common in larger municipalities. Their system of government is their own and may not be unduly interfered with.
The petitioner has failed to show that he has any vested right or any special interest in this matter whereby he suffers greater detriment than any other citizen. The Western New York Water • Company, so far as it appears, is not a party to this proceeding. The contract with it was purely prospective, and it has lost no rights. An order of peremptory mandamus will issue only to compel performance of an official duty clearly imposed by law, where there is no other adequate, specific remedy. The duty must be positive, not discretionary, and the right to its performance must be so clear
The petitioner has failed to show a clear legal right to invoke the assistance of the court; and for the reasons stated the order should be reversed, with costs, and the petition dismissed, with fifty dollars costs.
All concur; Clark and Sears, JJ., upon the first ground only.
Order reversed, with costs, and petition dismissed, with fifty dollars costs and disbursements.
