
    John J. Hopper, Appellant, v. William R. Willcox and Others, Constituting the Public Service Commission for the First District, Respondents.
    Second Department,
    May 17, 1912.
    Municipal corporations — construction of subway, city of Mew York — taxpayer’s action to restrain construction — submission of question to vote of electors — pleading — complaint not showing failure to comply with statute.
    
      Quxre, as to whether section 12 of chapter 752 of the Laws of 1894, requiring, the rapid transit commissioners of the city of New York to submit the question as to whether subways'shall be constructed to the qualified electors of the city and providing fori the canvass, etc., of the votes cast, is still in force.
    However, in a taxpayer’s action to enjoin the letting of contracts for the construction of subways it will be assumed that the rapid transit commissioners .complied with the provisions of said section, if still in force, where the complaint does not show that the vote was not taken, but, on the contrary, alleges that the proceedings for the construction were “ duly taken” in accordance with said act and acts amendatory . ■ thereof; that the commission was duly authorized to advertise for the construction, and that, in pursuance of resolutions, negotiations, acts, etc., and “ insubstantial conformity with the resolutions, negotiations, acts and proceedings hereinbefore set forth,” the city has expended large sums of money, etc.
    Appeal by the plaintiff, John J. Hopper, from a judgment of the Supreme Court in favor of the defendants, entered in in the office of the clerk of the county of Kings on the 25th day of April, 1912, upon the decision of the court rendered after a trial at Special Term.
    
      Clarence J. Shearn, for the appellant.
    
      George S. Coleman [Oliver C. Semple and Le Roy T. Harhness .with him on the brief], for the respondents.
   Per Curiam:

In this ease a point was made upon the oral argument and in the brief of counsel for the appellant, which seems not to have been- presented to the court at Special Term, and is -not considered by Mr. Justice Blackmar in his opinion (Hopper v. Willcox, 76 Misc. Rep. 345), which we have, adopted.

It is provided in section 12 of chapter 152 of the Laws of 1894, which amended the Rapid Transit Act (Laws of 1891, chap. 4), that “The said board of rapid transit railway commissioners shall cause the question, whether such railway or railways shall be constructed by the • city and at the public expense, to be submitted to. the vote of the qualified electors of the city within which such railway or railways is or are to be constructed.” The act further provides for a canvass Of the ballots cast, and makes it the duty of said board upon the canvass of such votes by them “ tó file with the county clerk of said county a statement which shall declare the total number of votes cast in said city ‘for municipal construction of rapid transit road,’ and the total number so cast therein ‘ against municipal construction of rapid transit road.’' And the said railway or railways shall be constructed by the said city and at the public expense, if it shall be found from such statements so filed that there is a' majority of the votes so cast in favor of such municipal construction.” Appellant contends that notwithstanding the amendments to the Eapid Transit Act passed since 1894, some of which definitely authorize subway construction, either at public cost or at the joint cost of the municipality and the contractor, the provision of the act of 1894, above referred to> relating to popular vote, stands unrepealed, and that these later amendments apply only where a “referendum vote ” has gone against construction at the public expense.

We express no opinion as to whether the provisions of the act of 1894 are still in force and applicable to the present situation. We think that the point is not properly before the court. If the provisions of section 12 of the act of 1894 are still in force and applicable, and if a “referendum vote” is a condition precedent to the power of the rapid transit commissioners to award contracts to construct subways at the joint expense of the municipality and the contractor, there is no allegation in this complaint, nor anything from which it must be necessarily implied that such vote was not taken and was against construction at the public expense. In addition to the presumption that public officers do their duty, the complaint alleges in express terms “that prior to September 1, 1910, proceedings had been duly taken under and in accordance with the provisions of chapter 4 of the Laws of 1891 and the acts amendaatory thereof, known and hereinafter referred to as the Eapid Transit Act, whereby the Commission was duly authorized and did on that day advertise for proposals in the alternative; ” that is, for- construction, equipment and operation with private capital, and for construction at municipal expense.

Again it is alleged “Upon information and belief, that in pursuance of said last mentioned resolution of July 21, 1911, and the act's and proceedings hereinbefore set forth, said Commission has prepared a tentative contract or contracts.” And again “that in pursuance of the resolutions, negotiations, acts and proceedings hereinbefore referred to in addition to preparing forms of contracts under which proposals could be received which would be in substantial conformity with the resolutions, negotiations, acts and proceedings hereinbefore set forth, the City has expended and will continue to expend large sums of money in the preparation of detailed plans and specifications.” And again that in pursuance of the resolutions, negotiations, acts and proceedings as hereinbefore referred to, the Commission through the preparation of forms of contracts and plans and. specifications, are taking steps to consummate in substantial conformity with the resolutions, negotiations, acts and proceedings hereinbefore set forth, arrangements embodying the following fundamental provisions.” Then at length are set forth the fundamental provisions which it is alleged make the contracts illegal contracts, and nowhere therein or in any other portion of the complaint is any reference made to the absence of a popular vote upon the question.

Jenks, P. J., Hirschberg, Burr, Woodward and Rich, JJ., concurred.

Judgment affirmed, with costs, on the opinion of Mr. Justice Blackmar at Special Term (Reported in 76 Misc. Rep. 345), with concurring memorandum.  