
    Charles Mead and John Lundy, Plaintiffs, v. Isaac W. Turner, as President of the Village of Mt. Kisco, et al., Defendants.
    (Supreme Court, Westchester Special Term,
    July, 1908.)
    Villages: Sewerage system — Power to construct not abridged by Public Health Law; Sufficiency of map or plan; Construction of proposition adopted at public election: Taxes in villages — Power of trustees — Tax for sewer system.
    The provisions of section 72 of the Public Health Law were not intended to alter or abridge the power of a village under the General Village Law to construct a sewer at its own expense.
    The provisions oE section 260 of the Village Law relating to the construction of a sewer system do not require the map or plan therein mentioned to embrace every lateral sewer which may become necessary with the growth and development of the village.
    A proposition submitted to and adopted at a public election, which authorizes the construction of a sewer system at the expense of the village at large at a maximum cost of $100,000, and further, authorizes the board of trustees to raise $59,800 by the sale of bonds, must be construed as by necessary implication authorizing the board of trustees to raise the balance of such cost by taxation.
    Motion for a temporary injunction.
    A. J. Adams, for plaintiffs and for motion.
    Francis X. Pendleton, Corporation Counsel, for defendant City of New York, opposed.
    Charles H. Banks, for other defendants, opposed.
   Mills, J.

This is a taxpayers’ action, brought to enjoin the village authorities of the village of Mount Kisco, Westchester county, from issuing a warrant for the collection of a tax of $40,200, which the village authorities have attempted to levy to pay part of the expenses of constructing a system of sewers in said village, and to enjoin them from entering into any contract for the construction of such sewers or issuing any bonds therefor. The plaintiffs now move for a temporary injunction to the above stated effect.

It is elementary law governing such actions that the same can be maintained only upon clear proof that the municipal authorities sought to be enjoined are about to act or have acted illegally or fraudulently. There is nothing. in the papers here presented to indicate that the village trustees have acted or propose to act in any manner in bad faith. Therefore the sole question presented is whether or not their action, already in part taken and further contemplated, is without legal authority.

The plaintiffs claim that such action is unwarranted by law, and base their contention upon three grounds, each of which is hereinafter discussed.

The first ground.— This is that, under section 72 of the Health Law, the city of Hew York should pay the entire expense of furnishing the village of Mount Kisco with a system of sewers.

It appears that two small brooks pass through the territory of said village and empty into the Croton river, or rather at the present time the Croton reservoir, which constitutes a large part of the water supply system of New York city. Under statutory authority the city some years ago acquired land along those brooks for the protection of its water supply, with the particular purpose of keeping out of the brooks sewage and waste from the houses within the village. Thereupon negotiations ensued between the city authorities on the one hand and the village authorities on the other, lasting some years, respecting what should be done to take care of the sewage of the village, inasmuch as those brooks constituted the natural drainage of the village territory.

Finally, at the solicitation of both the .city and village authorities, the Legislature of 1907, on the fifth of June, of that year, passed an act, known as chapter 428 of the Laws of 1907, which authorized such authorities to enter into an agreement to provide the village with a proper system of sewage. Under the authority thus conferred the representatives of the city and village agreed upon a plan, the gist of which was that the city should provide for the disposal of the sewage of the village by the construction of proper outlet and disposal works, and the village itself should construct, within its limits, the system of sewers necessary to receive the sewage and deliver it to the outlet works to be constructed by the city. The proposition of authorizing the village trustees to construct the village part of the plan was submitted to a special election held within the said village on the 16th of November, 1907. The proposition was, at such election, adopted by a majority vote; and the following January a written agreement to the general tenor above stated was entered into between the city and the village.

I do not think that the plaintiffs’ objection here is well taken. It does not appear from the proofs before the court that the State Board of Health ever took action, that is, made any order or regulation under section 72 of the Health Law. Therefore, it does not appear that the provisions of that section ever became applicable to this situation. In the next place, if the State Board of Health had issued an order or regulation under said section 72, I do not perceive that that fact would alter or abridge the power of the village under the General Village Law to construct a sewer system at its own expense. With the question of the wisdom of the action of the majority of the voters at the special election, or of the trustees in exercising the power thereby conferred, the court here in this action has nothing to do.

The second ground.— This is to the effect that the village trustees have failed to comply with the provisions of section 260 of the Village Law, in that the map or plan of the sewer system for such village is not sufficiently detailed.

This claim rests solely upon allegations made in the eighth division of the complaint, solely upon information, and belief and without specification of detail as to the alleged defects. The opposing papers deny these allegations. The court cannot here find that this objection is well taken. I do not think that the provisions of section 260 of the Village Law should be construed to require the map and plan to embrace every ‘lateral sewer which may become necessary with the growth and development of the village. It would, indeed, be almost impossible or at least well nigh impracticable to prepare a plan,with that degree of absolute completeness.

The third ground.— This is that, while the proposition submitted to and adopted at the special election held in November, 1907, authorized the issuing of bonds to the amount of $59,800, it did not authorize the levying of any direct tax of the sum of $40,200, which the village trustees have undertaken to levy and collect in a single year.

It seems to me that the contention of the plaintiffs’ counsel here, to the effect that the provisions of the General Village Law as to the raising of money by tax levy are applicable to the matter of constructing these sewers within the limits of the village, is sound and-should be sustained. The provisions of the special act of 19'07, above referred to, are quite general and do not provide at all how the village authorities shall proceed to carry out the village’s part of the agreement to be made with the city; and I think the provisions of the' General Village Law are applicable; that, in other words, before levying any tax or issuing any bonds for the purpose of carrying out such agreement on the part of the village thereunder, it was incumbent upon the board of trustees to obtain special authority so to do froin the voters of the village in accordance with the provisions of the General Village Law.

The proposition submitted to and adopted -at the special election held on the 16th of ¡November, 1907, in express terms authorized the board of trustees of the village to construct the proposed sewer system at the expense of the Village at large ” at a maximum cost of $100,000, and further authorized that board to raise the sum of $59,800, to be used toward the cost of constructing such trunk and lateral sewers, by the issue and sale of the bonds of said Village,” etc. The proposition contained no direct authority to the board of trustees to raise the balance of the total cost by direct tax or to raise any sum in that manner. It seems to me, however, that the proposition must be construed as by necessary implication authorizing the board of trustees to raise the balance of such cost in the ordinary manner, that is by taxation. The proposition empowered the board of trustees to build the system of sewers at a cost of not to exceed $100,000, of which $59,800 was to be raised by the issuing of bonds, necessarily, as it seems to me, leaving the balance of $40,200 to be raised by taxation.

It is my opinion, therefore, that the proposition as submitted and adopted must be regarded as an authority to the board of trustees to make the tax levy here questioned.

It follows, from the views above expressed, that the motion for a temporary injunction must be denied and the injunction granted in the order to show cause dissolved.

Motion denied.  