
    In the Matter of the Application of Frank W. Shapter, Appellant, v. Thomas Carroll, Town Clerk of Flushing, Respondent.
    
      Residents of milages in Queens county, taxable for bonds issued to improve highways lying beyond the milage limits, may vote at a town election held to determine whether bonds shall be issued.
    
    The provisions of chapter 262 of the Laws of 1895, amending section 38 of the Town Law (Chap. 569, Laws of 1890), and enacting that “when any town has within its limits an incorporated village constituting a separate road district, exempt from the supervision and control of the commissioners of highways of the town, and from payment of any tax for the salary or fees of said commissioners, and from payment of any tax for the opening, erection, maintenance and repay of any highway, * * * no residents of such village shall vote- * * * for or against any appropriation for the opening, laying out, maintenance, erection or repair of any highway or bridge in said town without the limits of-said village,” apply only to residents of a village which is exempt from liability for such appropriations; and when construed in connection with section 69 of chapter 686 of the Laws of 1892, as amended by chapter 178 of the Laws of 1896, providing that, "in the county of Queens, a vote of a majority of the electors of any such town or towns * * * must first be obtained before the board can authorize such town or towns to borrow any money ” for constructing and repairing highways or bridges, permit electors, resident in the villages of Flushing, College Point and Whitestone, of the town of Flushing, county of Queens, to vote at an election held to determine whether the town shall issue bonds for the improvement of highways lying outside of those villages.
    Appeal by the applicant, Frank W. Shapter, from an order of the Supreme Court, made at the Kings County Special Term and. entered in the office of the clerk of the county of Queens on the 6th day of April, 1897, denying his motion to require the defendant to furnish separate ballots for the use of electors within the villages of College Point, Flushing and Whitestone, which separate ballots' should omit the proposition, contained in the ballots furnished to the other electors of the town, relative .to the issue of bonds of the town for the improvement of highways within the town but outside of the villages mentioned.
    The effect of the use of the separate ballot would be to deprive the electors in the village named of the right to vote upon the proposition in question.
    
      Howard A. Sperry, for the appellant.
    
      William J. Rasquin, Jr., for the respondent.
   Cullen, J.:

The villages of Flushing, College Point and Whitestone are situate in the town of Flushing. By the respective charters for the incorporation of those villages they are exempted from the superintendence and control of the highway commissioners of the town and constitute separate road districts. An election was to be held in the town to determine the question whether the town should issue bonds for the improvement of certain highways lying outside of those villages. The sole question presented on this appeal is the right of the electors of those villages to vote on that proposition.

The denial of the right of such electors is based on the provisions of section 38 of chapter 569 of the Laws of 1890, as amended by chapter 262 of the Laws of 1895: “ When any town shall have within its limits an incorporated village, constituting .a separate road district, exempt from the supervision and control of the commissioners of highways of the town, and from payment of any tax for the salary or fees of said commissioners, and from payment of any tax for the opening, erection, maintenance and repair of any highway or bridge of said town, without the limits of said village, no residents of such village shall vote at any annual or special election in such town for any commissioner of highways for said town, nor for or against any appropriation for the opening, laying out, maintenance, erection or repair of any highway or bridge in-said town without the limits of said village.”

Giving this statute the construction contended for by the appellant, we think it is not decisive of the question, for subsequent legislation has been had upon the subject. By chapter 178 of the Laws of 1896, section- 69 of the County Law (Laws of 1892, chap. 686), as to the proceedings to be taken to authorize a town to incur indebtedness for. Constructing and repairing highways or bridges, was- amended by "adding this limitation: But in the county of Queens a vote of a majority of the electors of any such town or towns, voting at an .annual town meeting or special town meeting called ' for that purpose, must first be obtained before the board can authorize such town or towns to borrow any money for or on the faith and credit of such town or towns for the purposes above mentioned.” It is entirely a sufficient answer to the claim of the appellant that the amendment quoted authorizes the issue of bonds only upon the vote of a majority of the voting electors of the whole town, and if the statute of 1895 prescribes any different rule,-that statute is pro tanto repealed by the later act. But both these statutory provisions can be construed in pari materia, and there is no .necessary conflict between them. By the provisions of the charters of those villages and by section 53 of the Highway Law (Laws of 1890, chap. 568, as amended by chap. 412 of the Laws of 1893), villages are exempt from any taxes imposed for the maintenance and repair of the highways lying outsid.e of the villages. But this does not relieve them from assessments made for damages and charges for laying out .or altering any road or creating and repairing a bridge in the town. Section 53 is. general, and applies to 'every case where an incorporated village within a town may be a separate road district. Thus from a certain class of pub-lie charges or expenses connected with the highways the villages are exempt, while to another class they are subject. In the present case the bonds which, if the election resulted favorably to the proposition, were to be issued, would be a charge on the whole town, including the villages within it. The proper interpretation of chapter 262 of the Laws of 1895, I think, is clear. It provides that when the village is “exempt from the supervision and control of the commissioners of highways of the town * * * and from payment of 'a/ny tax for the opening, erection,■ maintenance and repair of any highwa/y or bridge of said town without the limit's of said village, no residents of -such village shall vote * * * • for or against any appropriation,” etc. The meaning of this is that no residents of the village shall vote on the subject of an appropriation when the village is exempt from liability ■ for such appropriation. But it is only in case the village is so exempt that the • residents of the village are not to vote. Here the property within the villages being chargeable with any appropriation that might be authorized' at the election, the residents were entitled to vote on the subject.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  