
    The Potsdam Electric Light and Power Company, Plaintiff, v. The Village of Potsdam, et al., Defendants.
    (Supreme Court, St. Lawrence Special Term,
    December, 1905.)
    Municipal corporations — Remedies of taxpayers and corporators — Action by taxpayers: Power to issue bonds.
    Commission of gas and electricity—1. 1905, chap. 737.
    A corporation, a taxpayer in a village upon an assessment greater than $1,000, which gives a bond in the required penalty, justifies in $5,000 but no sureties are required of it by the court and its bond is duly approved, is entitled to maintain an action under the act (L. 1881, ch. 531 as amd.) for the protection of taxpayers.
    Where a statute (L. 1905, ch. 737, § 11) prohibits lighting systems in municipalities, “ for other than municipal purposes,” without a certificate of authority granted by the state commission of gas and electricity, a lighting system, voted for by the electors of a village, for supplying it and its inhabitants with electric lights may not be built without the prescribed certificate; and, where, under the resolution adopted prior to the enactment of the statute, authorizing such lighting system to be built, no irrevocable steps have been taken, nor money expended, a taxpayer’s action will lie to restrain the village trustees from issuing bonds for the establishment of the lighting system voted for by the electors.
    Action to restrain defendants from issuing $40,000 of bonds of the village of Potsdam to. establish a municipal electric lighting plant, for other than municipal purposes, without the certificate of the commission of gas and electricity.
    
      Lowen E. Ginn and Ledyard P. Hale, for plaintiff.
    A. X. Parker, Theodore H. Swift and Thomas D. Watkins, for defendants.
   Kellogg, H. T., J.

This is a taxpayer’s action to restrain the trustees of the village of Potsdam from selling bonds or taking other steps towards the establishment of a municipal lighting system, pursuant to a resolution adopted by the village electors on March 21, 1905, on the ground that no certificate of authority granting permission therefor has been granted by the state gas commission, as provided in chapter 737 of the Laws of 1905, and that consequently any such action will be illegal and constitute waste.

Chapter 531 of the Laws of 1881, and its amendments, require that in such an action the plaintiff or plaintiffs must furnish to the defendants a bond in the penalty of not less than two hundred and fifty dollars, conditioned to pay costs' in the event of non-success. The bond is “ to be executed by any two of the plaintiffs, if there be more than one party plaintiff, provided said two parties plaintiff shall severally justify in the sum of five thousand dollars.” Evidently there is here no provision applicable to a single plaintiff, fixing the amount of justification in such case. The quoted clause is immediately followed in the statute by a sentence specifying the nature of the bond’s condition merely. This sentence is succeeded by the following: “ The court shall require when the plaintiffs shall not justify as above mentioned, and in any case may require two more sufficient sureties to execute the bond above provided for.” Evidently the first part of this sentence deals with a case of at least-two plaintiffs, and two justifications; requiring in such case, and of such plaintiffs who have failed to justify as permitted, two additional sureties. In the case of a single plaintiff there is no time or occasion when the plaintiffs shall not ” have justified, because there being no plaintiffs there can be no default by them; no default in a double justification, none being possible. Clearly then only the latter part of the sentence, where it provides that in any case ” the court may ” require sureties, applies to a single plaintiff. This plaintiff has given a bond in the required penalty, has justified in the sum of $5,000; sureties have not been required of it by any court, and its bond has been duly approved. Being, a taxpayer upon an assessment greater than $1,000, it is entitled to maintain this suit.

It is conceded that the village of Potsdam has not complied with the following provision: “ Ho municipality shall build, maintain and operate for other than municipal purposes any works or systems for the manufacture and supplying, of gas or electricity for lighting purposes without a certificate of authority granted by the commission ” (Laws of 1905, chap. 737, § 11) by obtaining, for the establishment of its proposed lighting plant, the certificate therein mentioned from the gas commission. Does that provision apply to the village of Potsdam and its lighting system as resolved upon by its electors prior to the adoption of this law ?

Prior to the passage of this act, it was permissible for any village, upon the adoption by its people of a resolution therefor, to establish “ a system for supplying the village and its inhabitants with light.by any approved method.” Village Law, chap. 241. The system contemplated by the statutory permission given included both a street lighting system and a system for the lighting of the private buildings of its inhabitants. Village Law, § 245. Whether or not a village could legitimately engage in private lighting outside of its municipal territory, did this statute so provide, it is not necessary to inquire; for this statute plainly confines the power of private lighting which it bestows to lighting within a village, a village being authorized to supply lights to “ its inhabitants ” only.

When the act of 1905 was adopted, therefore, there were but two purposes for which a village might build a lighting system: First, That of lighting the village generally, viz., its streets; and, Second, That of lighting buildings within its limits. The prohibition of the statute is against lighting systems built “ for other than municipal purposes.” ITnless this prohibition is meaningless, it must be directed against either one or the other of the two types of permitted lighting systems above mentioned. That it is a prohibition which does prohibit, is a concession to legislative mentality, which the current of judicial authority commends. Which, then, is a lighting system “ not built for municipal purposes ”— the system which lights the village streets, or that which for hire lights private houses? Since, under this statute, one or the other does not satisfy a municipal purpose, it is entirely clear, that that one is the system of private lighting, and that without the certificate prescribed no such system may be built.

The lighting system voted for by the electors of Potsdam was one for supplying the village of Potsdam, D. Y., and its inhabitants with electric lights.” A private lighting system is comprehended therein and it is conceded that the system intended to be built is one which will include private lighting. It is a'system, then, which, if the law applies, may not be built without the prescribed certificate.

The resolution authorizing a lighting system to be built was adopted on March 21, 1905. The act under discussion did not go into effect until June third following. The utmost effect of the resolution was to vest in the board of trustees the power to establish a lighting plant. That power came from the legislature, which had bestowed it conditionally. Upon the performance of the condition, the power acquired was no greater or more effective than would have been the case had absolute power originally been conferred. Unless rights had already vested under its partial exercise, it was still a delegated legislative power which could be withdrawn by the legislature at will. The act of 1905 is universal in its terms: “ Do municipality shall build, maintain and operate a non-municipal system without a certificate.” This is not a retroactive provision. It speaks from the present. It withdraws power from all municipalities, however that power may have been acquired, whether by a statute absolute in terms, or a conditional statute which has been complied with. And that power is in praesenti withdrawn. This construction does not give the statute retroactive force.

Doubtless the statute does not apply to any case where the power has been partially exercised, as by the expenditure of money or property, or the incurring of any obligation, properly and lawfully done in the carrying out of a then existing power to establish a lighting system. If the statute had such an effect, it would plainly he retroactive; and the law does not favor such construction.

¡No money or property had been spent by the village of Potsdam, prior to the passage of this act, in the establishment of a lighting plant. ; It had paid out no value. It had acquired no property. It had incurred no obligation, unless it be an obligation to furnish light to four individuals mentioned in the testimony. Between May seventeenth and May twenty-third four letters were addressed to the village board, by individuals who expressed themselves as desirous of placing contracts with the village for an uncertain number of lights for a term of five years, and who thereby made application therefor. The amount of light is unnamed, the price is unnamed; even the term of the contract is not given, for no one expresses the time from which the five-year period is to run. The board of trustees, on May 23, 1905, resolved that the applications were accepted subject to the provisions of a resolution adopted May twenty-second. This resolution authorized the making of contracts for house lighting at not less than fifty cents or more than three dollars a light per annum, and business lighting at from one dollar to five dollars, for a period of five years “ beginning when the municipal system is completed or not later than January 1, 1906V The offers which the applicants made were incomplete and uncertain as to number of lights, price and period. They were, in fact, no offers upon which minds could meet without further offers expressed. They were accepted ” with the qualification that it was subject to the provisions of a resolution of May twenty-second. If the offers had been complete, the “ acceptance was no acceptance, because qualified and containing new terms not contained in the offers. The acceptance was, in fact, a new offer which is not shown to have been accepted. There has been no meeting of minds, and so no contract. Gan any one doubt that if the plant were built and the applicants refused to take light the village would fail in any suit on contract against them ? Thus we find that no obligation whatever had been incurred by Potsdam village prior to June third; no irrevocable steps had been taken or money spent to create a lighting system, which was for Potsdam in all respects still in futuro, and, therefore, the act that day passed, construed as prospective in its effect only, withdrew from the village authorities the still unexercised and then absolute power to establish a lighting system, until a further condition, confessedly unfulfilled, had been complied with. For this reason, it would constitute an illegal official act for the defendant officials to take any step toward the establishment of a lighting system heretofore voted upon by the electors of Potsdam.

The plaintiff is, therefore, entitled to a decree enjoining the defendants from proceeding further under the resolution adopted March 21, 1905.

Ordered accordingly.  