May v. Bermel

Gaynor, J. I think the issuing of the bonds was duly authorized at the town meeting. Prior to 1896, section 69 of the County Law empowered the hoard of supervisors of any county to authorize the issuing of bonds by any town to construct, build or repair highways and bridges, “ pursuant to a vote of a majority of the electors of any such town at an annual town meeting, or special town meeting called for that purpose, or upon the written request of the commissioners of highways and town board.” In 1896 this was amended by the addition of the following, viz.: “ But in the county of Queens a vote of a majority of the electors of any such town or towns, voting at an annual town meeting,, or special town meeting called for that purpose, must first be obtained,” etc. It is not questioned but that the general provision of the statute contemplates only a majority of the electors who vote upon the proposition. It does not seem to me that by the amendment of 1896 the intention was to do more than withdraw the towns of Queens county from the alternative part of the general provision allowing the hoard of supervisors to act upon the written request of the commissioners of highways and town hoard, and subject them absolutely to the requirement of a town-meeting vote. There was no intention to change the method of determining a vote of a majority of the electors. It is too much to suppose that the legislature intended to introduce two such methods into the same section, or to apply a particular method to the towns of Queens county. The phrase, “ a vote of a majority of the electors of any such town or towns,” in the amendment, is copied from the section as it was, and the words following, “Voting at an annual town meeting, or special town meeting called for that purpose,” mean who shall vote at such town meeting, etc. Thus read, the amend [517] ment is that a vote of a majority of the electors who shall vote, must first he obtained, etc.; and this means a majority of those who shall vote upon the proposition, according to the better interpretation in respect of ascertaining election majorities. Every elector was obliged, under the Election Law, to deposit a separate ballot upon the proposition, as well as for the election of town officers, and did so. The 903 who cast blank ballots upon the proposition did not vote thereon. The 1,650 affirmative votes were a majority over the 947 negative; and that is the majority meant by the statute. I see nothing to be gained from a review of the decisions of the several states upon the interpretation of similar statutes. They are not harmonious. I have been referred to only two in this state, viz.: People ex rel. Hetfield v. Trustees, 70 N. Y. 28, and Smith v. Proctor, 130 id. 319. In the former, the statute construed required that a special election by the “ taxable inhabitants ” be held, and provided that they might “ at such meeting, by a majority vote,” decide to raise a specified sum to aid in the construction of a railroad, and that “ in case a majority of said taxable inhabitants shall vote to raise such sum,” bonds should be issued. This was held to require a majority of the taxable inhabitants of the village and not merely a majority of those who should vote. This decision may not seem to be in accordance with the language of the statute, but all of the other statutes of the state allowing towns and villages to bond themselves to aid railroads, in terms required the consent of a majority of the taxable inhabitants, and the court interpreted the statute to conform to the general policy thus manifested upon the subject by the legislature. In the latter, the school statute, providing that “ a majority of all the inhabitants of any school district entitled to vote, to be ascertained by taking and recording the ayes and noes ” at a school district meeting, could authorize the building of a schoolhouse, was construed. It would seem that the thing directed to be ascertained by taking and recording the ayes and noes, was whether those voting in the affirmative were a majority of all the inhabitants of the district, but it was held that the purpose was to ascertain a majority of those voting only, and that such an affirmative was sufficient. In the light of these two decisions, and of settled principles applicable to the ascertainment of majorities at elections, it seems to me that the construction of the ¡statute in question contended for by the plaintiffs is not the true one. The motion for an injunction is denied.