
    The Richmond County Gas-light Company, Appellant, v. The Town of Middletown, Respondent.
    (Argued November 25, 1874;
    decided December 8, 1874.)
    The act of 1865 (chap. 300, Laws of 1865), authorizing defendant’s board of town auditors, to cause the streets of the town to be lighted with gas and to enter into a contract with plaintiff for that purpose, did not confer a power to make an absolute binding contract for a term of years, but only subject toa termination thereof by a modification or repeal by subsequent legislation of the provision giving the power.
    Accordingly held, that a contract made under said act was terminated upon the repeal thereof by the act of 1866 (chap. 730, Laws of 1866).
    Also, held (Folgbr, Batallo and Andrews, JJ.), that plaintiff's remedy to enforce the contract, if valid, was not by action against the town, but -by mandamus to the supervisor of the town and the board of supervisors of the county.
    The board of auditors was only authorized, under said act of 1865, to contract during its pleasure. It could not divest itself of the power, in case a majority at any time deemed it best so to do, to discontinue the lighting of any or all of the streets. (Grover, J.)
    
      Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of defendant entered upon an order dismissing plaintiff’s complaint. (Reported below, 1 N. Y. S. C. [T. & C.], 143.)
    This action was brought to recover moneys alleged to be due plaintiff under a contract made June 7, 1865, between plaintiff and defendant’s board of town auditors, for the. laying of pipes and the supplying of certain streets of the town with gas. The contract was made part of the complaint; it was- for the term of five years and was alleged to have been made under the act (chap. 300, Laws of 1865) authorizing the town' auditors of said town to cause its streets to be lighted with gas, and to make a contract with plaintiff for that purpose. The complaint alleged the performance of the contract, on the part of plaintiff, that for the contract-price of the gas furnished after January 1st, 1870, to the termination of the contract by its terms, the board of auditors refused to audit and allow plaintiff’s claim, which contract-price the plaintiff sought to recover. The complaint further alleged the repeal of said act, after the making of the contract by the act chapter 730, Laws of 1866; and that thereby the provisions thereof (§ 4) requiring the town supervisor to lay before the board of supervisors a statement of the amount due, and directing the board to audit it and levy and assess the amount thereof lipón the town, became inoperative. 0
    Upon the trial, before the giving of any evidence, defendant moved that the complaint be dismissed upon the ground .that it did not state facts sufficient to constitute a cause of action.
    The court granted the motion and plaintiff’s counsel excepted.
    
      Tompkins Westervelt for the appellant.
    The contract being lawful and plaintiff having acquired, by performing its part, an absolute vested right to have its terms carried out, its right would not be affected by the repealing act of 1866. ( Von Hoffman v. City of Quincy, 4 Wall., 535 ; 3 id., 294, 327; 32 Barb., 358 ; 4 id., 64; 10 id., 223; Lassley v. Phillips, Am. L. J. or Reg. Phil., Apl., Nov., 1874; Olcott v. Suprs., 16 Wall., 678 ; Gelpcke v. Dubuque, 1 id., 175 ; Ohio L. and T. Co. v. Deholt, 16 How. [U. S.], 432; People v. Platt, 17 J. R., 195 ; Beum v. Mayor, 10 Barb., 223 ; People v. Suprs., 4 id., 64.) The act of 1866, having repealed the mode of collecting the moneys due under the contract provided by the act of 1865, plaintiff was left to any legal remedy open to him. (Stocking v. Hunt, 3 Den., 274; McLaren v. Bennington, 1 Paige, 102; Litchfield v. Macomber, 42 Barb., 288.) When the last payment became due and was not paid, plaintiff had a right' of action therefor. (1 R. S., 357, §§1, 2; Morey v. Town of Newfane, 8 Barb., 645 ; Lorillard v. Town of Monroe, 1 Kern., 392 ; Ex parte Lynch, 2 Hill, 45 ; Marsh v. Town of Little Valley, 1 Hun, 555; Brown v. Town of Canton, 4 Lans., 418; Hathaway v. Town of Homer, 5 id., 273; Northrup v. Town of Pittsfield, 2 N. Y. S. C., 108.) A majority of the board of town auditors had a right to make this contract. (Ex parte Rogers, 7 Cow., 530 ; Gridley v. Baker, 1 B. & P., 236; Green v. Miller, 6 J. R., 41; People v. Suprs, 1 Hill, 200; Conger v. H. R. R. R. Co., 12 N. Y., 197; 2 R. S., 555, § 27 ; Yates v. Russell, 17 J. R., 468 ; McCoy v. Curtice, 9 Wend., 14; Woolsey v. Tompkins, 23 id., 326.) The act of 1865 was not in violation of sectioned of article 3 of the State Constitution. (Mosier v. Hilton, 15 Barb., 661; Decamp v. Eviland, 19 id., 84; People v. Lawrence, 36 id., 189, 190; Conner v. Mayor, etc., 5 N. Y., 292 ; Sun M. Ins. Co. v. Mayor, etc., 8 id., 252; Brewster v. Syracuse, 19 id., 117.)
    
      S. F. Rawson for the respondent.
    Towns can only be sued in cases where a right of action is given by law. (Lorillard v. Town of Monroe, 1 Kern., 394.) When an audit of a claim is required, no action can be maintained for its recovery. (Brady's Case, 10 N. Y., 260 ; affirming 2 Sandf., 460; Martin v. Suprs. of Greene, 29 N. Y., 645 ; People v. Suprs. of Columbia, 10 Wend., 363; Boyce v. 
      Suprs. of Cayuga, 20 Barb., 294.) The contract, so far as it extends beyond the terms of office of the members of the board of audit, is void. (Britton v. Mayor, etc., 12 Abb., 367; S. C., 21 How., 251; 31 N. Y., 201; 27 id., 622; 32 id., 271; 34 id., 668.) The contract being originally void, no act of the board of audit could make it valid. (Brady v. Mayor, etc., 20 N. Y., 319.) The repeal of the act of 1865 rendered the contract void. (McLaren v. Pennington, 1 Paige, 102; Bklyn. Cent. R. R. Co. v. Bklyn. City R. Co., 32 Barb., 358.)
   Grover, J.

Section 1, chapter 300, Laws of 1865 (page 483), conferred power upon the board of town auditors of the town of Middletown (the defendant) to cause to be lighted with gas any and all the streets of the town, whenever they deemed the same necessary. Section 2 required such board, whenever they deemed it necessary to have any of the streets so lighted, to contract with the plaintiff for furnishing and laying down the necessary gas pipes, and for the furnishing and erection of lamp posts and all the appliances for burning gas in the streets, and for furnishing gas for the same. Under this authority the contract sued upon was entered into, ivhich, among other things, provided for the furnishing of gas by the plaintiff, for the lighting of certain streets of the defendant, for the term of five years. This act was unconditionally repealed by chapter 730, Laws 1866.(vol. 2, 1564), which took effect April twentieth of that year. The action was brought by the plaintiff to recover for gas furnished in 1870, as claimed in the complaint, under the contract made with the board of town auditors in 1865. The first inquiry obviously is, whether this contract was valid for the five years. If it was, neither the legislature nor the board of town auditors of the defendant could do any thing to impair its obligation, as that would come within the prohibition of the Constitution of the United States. (Van Hoffman v. The City of Quincy, 4 Wall., 535; also cases cited in opinion of Strong, J., in Olcott v. Supervisors, 16 id., 678.)

The defendant was a municipal corporation, created by law for certain local governmental purposes, authorized to exercise such powers only as were conferred upon it by law. Prior to the passage of the act of 1865, it had no power to cause any of the streets of the town to be lighted with gas, or in any other way. By that act such power was conferred upon the defendant. For what term? The learned counsel for the appellant insists for the term of five years at least, for which the contract was entered into by the plaintiff with the town auditors to furnish the gas, and that during this time the legislature had no power to relieve the town, or any part of it, from the expense of lighting all the streets embraced in the contract, whatever the necessity for such relief might be. If the board of town auditors could deprive the legislature of this power for five years, by entering into a contract with the plaintiff for that time, it might for 100 years, by contracting for that period. I think it entirely clear that no such power was conferred by the act upon the town auditors. The power so conferred was like the other powers conferred upon the officers of this and the other towns of the State, subject to modification or repeal by 'subsequent legislation, and that the town auditors could not, by any contract, prevent or at all control the action of the legislature in this respect. It follows that the town auditors could only contract for a supply of gas for lighting the streets, or any of them, for such time only as the power so to light them was conferred upon them by law ; and having no authority to contract beyond this, the contract entered into with the plaintiff for five years was not authorized by the act, and became void when the power to light the streets was taken, away by the repeal of the act of 1865 by that of 1866.

There is another ground upon which I think it equally clear that the plaintiff cannot recover upon the contract. Under the act of 1865, the existing board of town auditors had no power, once for all, to determine that certain streets should be lighted for a great number of years, and deprive those who should succeed to their places of all control over the subject, by entering into a contract with the plaintiff for this long term. An examination of the act shows that it was intended to vest a discretion at all times in the board, whether any and which of the streets should be lighted with gas. The board could, therefore, contract for a supply only during its pleasure. When a majority, either from a change of views of its existing members or the opinion of some of their successors, thought it best to discontinue the light in some or all the streets, they could not be divested of the power so to do by a previous contract entered into for a supply of gas.

It appears that in 1866, shortly after the passage of the act repealing that of 1865, the legislature, by a special act, ineorporated the village of Edgewater, including therein a portion of the territory of the defendant, with other territory, and made provision for lighting the streets of the village. Unless this is held void, which we have seen cannot be, it furnishes another insuperable obstacle to the plaintiff’s recovery upon the contract.

The plaintiff’s complaint was properly dismissed, and the judgment of the General Term, affirming the judgment entered thereon, must be affirmed, with costs.

Church, Ch. J., Allen and Johnson,. JJ., concur in result on first ground taken in the opinion. Folger, Rapallo and Andrews, JJ., concur in the result, on the ground that the remedy of the plaintiff was by mandamus to the supervisor of the town and the board of supervisors of the county, and do not pass upon the questions discussed in the opinion.

Judgment affirmed.  