
    In the Matter of the Application of Thomas O’Connor, Respondent, for a Writ of Mandamus against the Village of Waterford and Others, Appellants, Impleaded with George Curtin and Others, Defendants.
    Third Department,
    January 5, 1916.
    Villages — section 131 of the Village Law, as to submission of proposition to electors, not applicable to village of Waterford.
    Section 131 of the Village Law, prohibiting the submission of a proposition involving the expenditure of money to the electors before the lapse of ninety days after a previous rejection thereof, is inconsistent with chapter 243 of .the Laws of 1859, a special act incorporating the village of Waterford, and under section 380 of the Village Law does not apply to the submission of propositions to the electors of said village. Under the charter the trustees have discretionary power to call special meetings of electors.
    A proposition which does not specify the “ object or objects, stating the sum proposed to be raised for each object," as required by sections 15 and 18 of the charter of said village, should not be submitted to the electors.
    Appeal by the defendant, the Village of Waterford, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 7th day of June, 1915, granting respondent’s motion for a peremptory writ of mandamus requiring the board of trustees of the village of Waterford to cancel and
    
      annul a resolution calling for the submission of six propositions to the voters of the said village at a special election to be held on the 7th day of June, 1915, and requiring them to refrain from holding such special election. Appeal by the defendants, Charles H. Carter and others, from so much of said order as directs that they personally pay to the relator herein the sum of twenty-five dollars as the costs of his motion.
    
      J. W. Atkinson, for the appellants.
    
      Thomas O'Connor, for the respondent.
   Cochrane, J.:

The village of Waterford is incorporated under a special act, chapter 243 of the Laws of 1859. At the annual village election on April 27, 1915, six propositions involving the expenditure of money were submitted to the voters. Five of these propositions were defeated and one accepted. On May 3,1915; the village trustees again adopted a resolution for the submission of six propositions to the voters at a special meeting to be held on Jtine seventh following. Of these six propositions five embraced the same objects as had been submitted to the voters and rejected by them on April twenty-seventh, although differing in some of their details.

The order appealed from restrained the appellants from submitting any of such propositions to the voters on June 7, 1915. Such order was based on section 131 of the Village Law (Consol. Laws, chap. 64 [Laws of 1909, chap. 64], as amd. by Laws of 1910, chap. 598), which reads as follows: “If the vote at an election upon a proposition to purchase property or to raise a tax or to incur a debt shall be against such proposition, no proposition embracing the same object shall be again submitted before the elapse [lapse] of ninety days thereafter.”

As five of the six propositions which the village trustees were attempting to submit to the voters of the village cn June 7, 1915, had been rejected at a village election within ninety days prior thereto, one of the questions in the case as to such five propositions is whether said section 131 of the Village Law, as amended, applies to the village of Waterford. Section 380 of the Village Law is as follows: “A village incorporated under and subject to a special law, and each officer thereof, possesses all the powers and is subject to all the liabilities and responsibilities conferred or imposed upon a village incorporated under this chapter, or upon an officer thereof, not inconsistent with such special law.”

In my opinion section 131 of the Village Law, prohibiting the submission of a proposition to the electors before the lapse of ninety days after its rejection, is “ inconsistent with such special law ” (Laws of 1859, chap. 243, as amd.), constituting the charter of the village of Waterford. The provisions of said special law bearing on this question are as follows:

“ Section 18. A resolution to raise money for a special purpose, or to increase the fund to defray the ordinary expenses of the village for the current year, may be adopted at a special meeting called by the trustees, on a notice subscribed by the president or clerk, specifying the object and amount in the same manner, and published as required in section fifteen, but no such meeting shall be called within three months next preceding the annual meeting.”
“Section 28. It shall be the duty of the trustees, and they shall have the power: * * *
“5. To call special meetings of the electors, when, in their judgment, the interests of the village shall require it, and to give notice in the manner provided for by law for the annual and special meetings.”

These provisions of the special law under which the village of Waterford was incorporated clearly made it the duty of the trustees and gave to them the power to call special meetings of the electors at any time “when, in their judgment, the interests of the village shall require it,” except only that a special meeting for the purposes indicated in section 18 may not be cAiled “within three months next preceding the annual meeting. ” To read into this special act the provisions from the General Village Law that such a meeting shall not be held “ before the elapse [lapse] of ninety days ” after a previous meeting is inconsistent with the express duty imposed on the trustees and the power conferred on them to call special meetings whenever in their judgment the interests of the village so require. The village charter makes it their duty to exercise their judgment at all times save only that certain meetings cannot be called within three months next preceding the annual meeting. Section 131 of the Village Law, if it prevents any meeting of the electors within ninety days after a previous meeting, destroys section 28 of the charter to the extent that such last-mentioned section empowers the trustees and makes it their duty to call special meetings of the electors within ninety days of a former meeting when, in their judgment, the interests of the village shall require it.” The general law would suspend the exercise of the judgment of the trustees for ninety days, whereas the charter affirmatively casts on them the positive duty of exercising their judgment at all times save as restrained by section 18 thereof. The provisions of the general law are, therefore, inconsistent with those of the village charter and under section 380 of the former do not apply.

The respondent further urges that the propositions in question are not such as could at any time be submitted to the electors under the village charter. This is clearly so as to the first proposition, viz., “Shall the sum of $500.00 be raised for general taxes in addition to the amount allowed by law ? ” for the reason that it does not specify the object or objects, stating the sum proposed to be raised for each object,” as required by sections 15 and 18 of the village charter. The propositions, however, relating to the purchase of fire hose and repairing the fire engine and engine house were in proper form and might have been submitted to the voters under sections 13, 14 and 18 of the charter.

The time fixed for the special election, viz., June 1,1915, having expired, this appeal is academic except as to the costs imposed by the order from which the appeal is taken, which costs should be eliminated from said order inasmuch as neither party was entirely right at the Special Term.

The order should be modified in accordance with this opinion, and as so modified affirmed, without costs.

All concurred.

Order modified in accordance with opinion, and as so modified affirmed, without costs.  