262 A.D. 556 | N.Y. App. Div. | 1941
The litigation in both of these actions arises from an endeavor to establish a municipally owned electric plant in the village of East Rochester. The plant would furnish power to the village for its own purposes, and for compensation would provide power to private customers within the village. In order to carry out such plan the village of East Rochester, through its board of trustees, has presented to the voters by means of a mandatory referendum a proposition as to the establishment of such a project by the village, and at the election a majority of voters approved such project. Unless there is valid objection to such project, the village is now in a position to proceed with the same.
The first-entitled action is one in which the village seeks a declaratory judgment as to its right to use its streets for the purposes of such project.
In the second-entitled action a taxpayer has brought the action on behalf of himself 'and other taxpayers similarly situated, with the object of having declared invalid the election and to restrain the defendant village from proceeding with the project.
In such second action, the plaintiff Frank Flierl has intervened as another interested taxpayer, and the plaintiffs Rochester Gas and Electric Corporation and Despatch Shops, Inc., have intervened as parties interested both as taxpayers and as owners of substantial rights which, if the project is carried out, they claim will be taken away in violation of their constitutional rights. The plaintiff Despatch Shops, Inc., owner of one of the largest industrial pieces of property in the village of East Rochester, and one of the largest taxpayers therein, claims that in planning the project the village of East Rochester deliberately intends to exclude Despatch Shops, Inc., from being a possible customer for the power to be provided by the project.
Whether the village of East Rochester should have a judgment favorable to itself in the first action, depends largely on the question as to whether or not Rochester Gas and Electric Corporation
Although these are two separate actions and brought to this court on two separate appeals, the history of the corporate parties involved, and that of their predecessors, contains a set of facts which goes largely to the determination of the merits of both actions and of both appeals.
Prior to and in 1897 there came into existence Despatch Heat, Light & Power Company (predecessor of Rochester Gas and Electric Corporation), the Vanderbilt Improvement Company and Despatch Building Company. These latter named two companies controlled large tracts of land that are now the territory included in the village of East Rochester. In June, 1897, and December, 1897, and later, these companies filed subdivision maps which showed the territory laid out in such village and including building lots and streets. Lots from the subdivisions were sold as laid out on these maps for many years prior to the incorporation of the village. All lots were sold by lot numbers and by reference to the filed maps. From June 14, 1897, to July 31,1905, there were conveyed some 360 lots without reservation of title in the streets. From April 27, 1901, down to July 31,1905, there were also approximately 361 conveyances of lots which contained the following clause: “ Excepting and reserving therefrom the street or streets abutting upon said premises, the fee of which subject to the use of said street or streets as a highway or highways, is retained in the Vanderbilt Improvement Company.” During this period from April, 1901, to July, 1905, certain lots were sold without such reservation and some with such reservation. The town authorities put up a schoolhouse in 1898, and Methodist and Catholic churches were built within the period from 1901 to 1906. Many houses were built during that period. It is significant of the intention of the grantors as to the purposes for which the lands were laid out on the maps that in at least one case (a deed dated August 4, 1897, from Vanderbilt Improvement Company to one Fryatt, recorded September 27, 1897, in liber 589 of Deeds at page 298), in restricting the uses of the premises as against the sale of liquor, the restrictions contained the following: “ until said lot shall be included in a duly incorporated village,” and equally significant of the viewpoint of the town of Perinton as to such intention in reference to that portion of these lands lying in that town, an assessment roll of the town of Perinton bears the heading
The village of East Rochester was incoiporated October 18, 1906, pursuant to the Village Law of the State of New York, and now has a population of some 7,000 persons. Rochester Gas and Electric Corporation owns real estate in the village of East Rochester. The interest of the Bankers’ Trust Company, which is a party to the first-entitled action, is that of mortgagee holding as collateral security a mortgage for the payment of the bonds of the Rochester Gas and Electric Coiporation. The mortgage was executed September 1, 1918. Rochester Gas and Electric Corporation served the village and its inhabitants with power for many years until, due to fault found by the village with the charges for lighting the streets, negotiations arose to reduce the charges, the result of which negotiations decidedly did not benefit the village and its residents, and as a consequence of such result the village endeavored
As Rochester Gas and Electric Corporation claims that it has exclusive easements to the use of the streets in the village for the transmission of power, the village of East Rochester feels itself unsafe in carrying out the project until it first has obtained a declaration of judgment from the Supreme Court as to whether or not such claim of Rochester Gas and Electric Corporation to exclusive easements in the streets for similar purposes is valid, and so action No. 1 was brought.
In action No. 2, the plaintiffs, both original and intervening, attack the project as invalid due to what they claim to be defects in necessary procedure in presenting the proposition for a vote, and a further objection is made by Despatch Shops, Inc., and one of the individual taxpayers, to the effect that the project if carried out would be discriminatory against certain taxpayers and, therefore, a violation of constitutional rights of the individual taxpayers.
It is best first to discuss the question of whether or not Rochestei Gas and Electric Corporation, through its accession to the rights of Despatch Heat, Light and Power Company, has exclusively the right to the use of the streets and highways in the village of East Rochester for such purposes. If it has such a right, then either the village of East Rochester must drop its proposed project, or seek to dispose of such right by means of compensation to the holder of the right.
Rochester Gas and Electric Corporation claims under the deeds above referred to, which endeavored to grant such an exclusive right and which, as has been indicated, were given and recorded shortly before the incorporation of the village of East Rochester. The village claims that such deeds were invalid to convey exclusive rights, and such claim is based on an alleged dedication of the streets at the time that the plots were originally laid out in 1896, the later granting of title to lots to hundreds of persons, including individuals, churches and the village for school purposes, of lots with no reservation of street rights by the grantors, and that the granting of such a right would be a monopoly in derogation of the rights of the village and individual property owners in the village.
A study of the record herein, and the history as given above, lead to the conclusion that, in laying out the plots of land which
In action No. 2, that brought against the village of East Rochester to have declared invalid the election by referendum and to restrain the village from proceeding with the project of a municipal electric plant, the appellants base their claim for judgment on the following contentions: (1) That the village officers failed to comply with the methods prescribed by statute for the submission of the proposition to the voters. If the appellants are correct in this contention, then certainly they are entitled to judgment. (Matter
The third ground above stated goes to the question of the contents of the proposition submitted to the voters on election day, and an examination of the same shows that there was substantial compliance with the provisions of the law, and that full information was thus given to the voters as intended by the statute.
The first basis of the appellants’ claim depends on the construction to be given subdivisions 3, 4 and 5 of section 360 (Art. 14-A) of the General Municipal Law. Such subdivisions 3, 4 and 5 have to do with the manner of the submission of the question to the voters, and in so far as pertinent, are quoted:
“ 3. The proposed method of constructing, * * * furnishing such service shall be fixed * * * by a village ordinance in the case bf a village, * * *.
4. * * * Authority to enact such an ordinance for a village is hereby conferred upon the board of trustees of the village * * *.
“5. Any such action by the board of trustees of a village, before taking effect, shall be submitted for the approval of the electors of the village at the next general election in such village to be held not less than ninety days after the adoption thereof; or at a special election called in the same manner as provided in the village law for the submission of a proposition at a special village election. Such submission shall be in the manner provided by, and in accordance with the provisions of the village law for the submission of any other question by referendum or petition, except that the referendum on the proposition provided for in this section shall be mandatory. * * * ”
The appellants claim that section 90 of the Village Law and section 139 of the Village Law were both provisions that should have been followed in adopting the ordinances and submitting the question to the voters. In substance, section 90 of the Village Law provides that ordinances may be enacted “ not inconsistent with existing law, for the government of the village, the management of its business, the preservation of good order, peace, health, safety and welfare of its inhabitants and the protection and security of their property * * Provision is made in such section for giving notice of such public hearing by publication and posting.
Section 139 of the Village Law has to do with the submission for permissive referendum of actions of the board of trustees,
It has been conceded that there was no public hearing in reference to the ordinance providing for the mandatory referendum for the municipal lighting system project and there was no posting and publication of the notice of adoption by the board of trustees of the ordinance -providing for the mandatory referendum in. reference to the municipal fighting project. The answer to this contention of the appellants as to the necessity of observing the provisions of sections 90 and 139 of the Village Law is as follows: It is apparent that, although the Legislature in article 14-A of the General Municipal Law used the term “ ordinance ” in referring to the preliminary action necessary on the part of the board of trustees prior to the holding of the mandatory referendum, it intended to use such word “ ordinance ” as an equivalent of “ resolution.” Further, the context of article 14-A, especially as contained in section 360 thereof, provided a complete method for the passage of the ordinance, giving publicity thereto and permitting the voters to express their opinion and pass thereon. This being so, it must be held that neither section 90, nor section 139, of the Village Law is applicable to the matters now under consideration. The third ground advanced by the appellants, to wit, that the village in the project has made provision that there be no benefit service or power available to the appellant, Despatch Shops, Inc., would be sufficient ground to nullify the action of the village so far taken in reference to the project, if the facts squared with such contention.
Subdivision 3 of section 65 of article 4 of the Public Service Law provides, So far as pertinent, as follows: “No * * * municipality shall make or grant any undue or unreasonable preference or advantage to any person, corporation or locality, or to any particular description of service in any respect whatsoever, or subject any particular person, corporation or locality or any particular description of service to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.”
Some attention must now be given to the question as to whether or not there is any undue or unreasonable preference or unreasonable prejudice or disadvantage to the appellant, Despatch Shops, Jnc., or any other taxpayer. The facts as set forth in the record
In action No. 1: All concur, except Dowling, J., who dissents and votes for reversal and for dismissal of the complaint. Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.
Judgment affirmed, without costs of this appeal to any party.
In action No. 2: All concur. Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.
Judgment affirmed, without costs of this appeal to any party.