24 N.E.2d 139 | NY | 1939
This action was brought to procure a declaratory judgment decreeing that chapter
Section 204 of the act provides that it shall become effective on January 1, 1940, provided that "this act shall be adopted and approved as follows: At the general election of the inhabitants of the territory within the proposed city of Peekskill, as in this act described, which shall be held on the twelfth day of April, nineteen hundred thirty-eight, at which [there shall be submitted to the qualified voters the following proposition: Shall the legislative act of nineteen hundred thirty-eight approved by the governor, entitled `An act to incorporate the city of Peekskill' be approved? Unless a majority of the votes cast at such election shall be in the affirmative, this act shall thereupon become ineffective. All said inhabitants possessing the qualifications to vote under the present charter of the village of Peekskill shall be entitled to vote at said election."
At the outset it is asserted that the charter did not go into effect because the question was not submitted to the voters in accordance with law and appellant specifies, as grounds for this challenge, that legal notice of the submission of the question was not given and notice of right to vote on the question was limited to taxable inhabitants only.
There is no provision in the act as to what notice shall be given to those entitled to vote on the submission of the act. The date for submission is fixed, i.e., April 12, 1938. It is agreed that April twelfth was the date duly fixed for *494
the annual election of village officers. Between the date when the act became a law and the date of submission was an intervening period of thirteen days. Counting March 29, 1938, there was fourteen days' time for notice of submission prior to the day when the event occurred from which reckoning was required to be made (General Construction Law [Cons. Laws, ch. 22], § 20; cf. People v. Burgess,
Section 4 of title II of the charter of the village of Peekskill then in force (Laws of 1883, ch.
The notice of the annual election was published in the EveningStar, a daily newspaper, on March 25 and April 1, 1938, in thePress Union, a daily newspaper, on March 25, March 31 and April 4, 1938, and in the Highland Democrat, a weekly newspaper, on March 24, March 31 and April 7, 1938. That publication substantially complied with the requirements of the statute with respect to the notice of the annual election of village officers to be published in newspapers (Salducco v. Etkin,
The notice of submission of the proposition was not a part of the notice of annual election as required by section 52 of the Village Law. A separate notice was printed whereby the budget for the village was detailed and was submitted to the taxableinhabitants of the village and in this notice near the end thereof was printed the proposition with reference to the submission of the charter. That notice reads: "Notice is hereby given, that the following estimates for the objects and purposes herein set forth will be submitted to a vote of the taxable inhabitants of the Village of Peekskill at the annual election to be held Tuesday, April 12, 1938, pursuant to the Charter of said Village, being the estimated expenses for the ensuing year, to-wit:" Then follows a detailed list of estimates for the different village departments and, serially, thirteen resolutions for the raising of the amounts specified in the budget and for other purposes. Following that long and detailed notice and at the end thereof is set out "Proposition No. 1," being the question specified in section 204 of the City Charter Act. That notice was published as follows: In *496
the Evening Star on March 29, April 5 and April 12, 1938, in the Press Union on March 29, April 4 and April 11, 1938, and in the Highland Democrat on March 31 and April 7, 1938. We think that the publication of that notice so far as publication in the newspapers was concerned possibly might be held to be a substantial compliance with the requirements of the statute (Salducco v. Etkin, supra). However, this notice was not posted as required by the provisions of section 52 of the Village Law and the proposition was not submitted to all of the inhabitants of the village of Peekskill who were entitled to vote thereon under the Village Charter (See L. 1883, ch.
It is urged by respondents that actual notice of the submission of the proposition was received by all of those entitled to vote at the election regardless of whether they were taxable inhabitants or otherwise by virtue of meetings that were held, discussion of the merits of the proposition and general publicity and that the submission of the proposition should not be set aside because the statutory requirements were not complied with. Attention is also called to the fact that 5,722 votes were cast at the general election, of which number 4,356 voted on the charter proposition, that 3,100 votes were cast in favor of the charter proposition and that the proposition would have carried even though every person entitled to vote who presented himself at a voting booth had voted upon the proposition. The opinion inSalducco v. Etkin (
The boundaries of the city of Peekskill as outlined in said act are asserted to be generally the same as those of the village of Peekskill and the same is a governmental unit within the town of Cortlandt in Westchester county. The charter of the village of Peekskill and acts amendatory thereof were amended, consolidated and revised by chapter
This action was commenced on October 5, 1939. This was about one year and six months after the act was submitted to the voters and on the eve of the 1939 general election. On the record and briefs submitted, it cannot be held that plaintiff was guilty of laches in commencing the action. The authorities of the town of Cortlandt and of the village of Peekskill were attempting, during a large portion of the time intervening between the submission, on April 12, 1938, of the act creating the city and the date of the commencement of the action, to correct the alleged defects in the charter through legislation without resort to the courts.
The judgments should be reversed and the matter remitted to Special Term to enter judgment declaring that *499
chapter
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN and FINCH, JJ., concur; O'BRIEN, J., taking no part.
Judgment accordingly.