
    Norman J. Gould and Others, Respondents, v. The Village of Seneca Falls and Others, Appellants.
    Fourth Department,
    March 9, 1910.
    Elections — village water works — women may vote — court — Stare decisis — affirmance without opinion.
    Where a proposition to establish village water works and issue bonds to be refunded by the proceeds of an annual tax on property within the village is submitted to voters at a special election under section 6 of the General Municipal Law, women owning taxable property who, excep t for sex would be entitled to vote for village officers, are entitled to vote on the issue submitted. This right is specifically given by subdivision 3 of section 41 of the Village Law.
    Where the Appellate Division affirms without opinion it does not necessarily adopt the opinion of the court below so as to make it a binding precedent.
    McLennan, P. J., dissented.
    Appeal by the defendants, The Village of Seneca Falls and others, from an order of the Supreme Court, made at the Monroe Special Term arid entered in the office of the clerk of the county of Seneca on the 23d day of September, 1909, granting a temporary injunction.
    
      Olajrence A. MacDonald and William H. Hurley, for the appellants.
    
      J. N. Hammond, for the respondents.
   Williams, J.:

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

The action was brought for a permanent injunction on the ground that the special election, at which the proposition to establish water works and to issue bonds was voted upon, was illegally conducted and void, and, therefore, such bonds would be invalid; The real question involved is the right of women to vote at such election. We think it must be said that there were hundreds of women in the village who were possessed of the qualification to vote, except on account of their sex. None of them were permitted to vote though some of them attempted to. They were systematically and by design excluded as a class, and only men were allowed to vote. Some question is made as to whether technically these facts were established upon the motion, but w© think for the purposes of this appeal they sufficiently appear. Upon the trial the facts can he made to appear more fully. The motion was decided mainly upon the one question of-the right of women as a class to vote at the election.

The bonds when issued would become a “ funded debt.” Section 6 of the present General Municipal Law (Consol. Laws, chap. 24; Laws of 1909,.chap. 29) is a re-enactment of section 5 of the former General Municipal Law (Gen. Laws, chap. 17; Laws of 1892, chap. 685). Under the former statute it was held that the words “ funded debt” include “all municipal indebtedness embraced within or evidenced by a bond, the principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest, and where provision is made for payment by the-raising of the necessary funds by future taxation and the quasi pledging, in advance, of the municipal revenue.” (People ex rel. Peene v. Carpenter, 31 App. Div. 603, 608.) Section 6 of the-present General Municipal Law provides that “A funded debt shall not be contracted by a municipal corporation.except for a specific object expressly stated in the ordinance or resolution proposing it; nor unless such resolution or ordinance shall be- passed by a two-third vote of all the members elected to the board or council adopting it or submitted to and approved by the electors of the town pr county or taxpayers of the village or city when required by law. Such ordinance or resolution shall provide for raising annually, by tax, a sum sufficient to pay the interest and the principal as the same shall become due.”

The proposition submitted at this special election was in form fully complying with this provision of the General Municipal Law. It provided, among other things, “.and shall there be raised annually, by the .levy and collection of a tax upon the taxable property in said village a sum, which with the net revenue derived from the said water works system, shall be sufficient to pay the.principal and the interest on the said several bonds, as such principal and interest shall mature and become due and payable ? ”

There is no doubt but that it was necessary to submit the question to the taxpayers at a special election, before the bonds could be issued. (See Village Law [Consol. Laws, chap.. 64; Laws of 1909, chap. "64], § 128, subd. 6.) Subdivision 2 of section 41 of that law provides among other things: “ A woman who possesses the qualifications to vote for village officers, except the qualifications of sex, who is the owner of property in the village assessed upon the last preceding assessment-roll thereof, is entitled to vote upon a proposition to raise money by tax or assessment, or for the dissolution of the village.” There is no controversy over the other qualifications of women to vote, except their sex. There seems to be no doubt as to the statute above quoted. Its language is plain and unambiguous and effect must be given to its provisions.

The case of People ex rel. Dillon v. Moir (129 App. Div. 938) is not an authority for the proposition that the right of women to vote under this statute does not exist. Ho opinion was written when that case was affirmed in this court. It was held at Special Term (62 Misc. Rep. 35) that the proposition or resolution there submitted did not entitle women to vote in that it provided only for the issue of bonds and not for the raising of money by tax or assessment to pay the principal or interest as it matured. We affirmed, not upon the opinion at Special Term, but without any opinion at all. The bonds then would clearly have been void, because the resolution failed to comply with the provisions of section 5 of the former General Municipal Law above referred to. That section expressly required the resolution to provide for the raising annually by tax an amount sufficient to pay the principal and interest of the bonds as the same should become due, and nothing of this kind was contained in the resolution. Moreover, we held in Village of Canandaigua v. Hayes (90 App. Div. 336, 347) that a resolution under the former statute was insufficient to validate bonds which merely provided for the raising by annual tax of a sum sufficient to pay the interest and principal as the same became due, but failed to indicate in what installments the bonds were to be made payable and which were to be paid each year.

The resolution in the Dillon case was defective in this respect also. It was manifestly insufficient in form when adopted to authorize the issue of any bonds.

There was abundant reason, therefore, for affirming the order restraining such issue of bonds regardless of the question as to the right of women to vote.

We did not adopt the language of the opinion of the Special ' Term in affirming that order.

We think there should be no issue or sale of bonds here until a new election is had at which women are permitted to vote if qualified in other respects aside from sex, or at least until a trial of this case is had and a decision on the merits is made.

All concurred, except McLennan, P. J., who dissented on the ground that it does not appear that the votes rejected would have changed the result of the election.

Order affirmed, with ten dollars costs and disbursements.  