The village of Watkins Glen was incorporated under a special charter (Chapter 125 of the Laws of 1861, and chapter 36 of the Laws of 1918). The charter provided the qualifications for voters at village elections. Section 12 of title 3 (L. 1918, ch. 36) reads as follows:
"Legal voters. Every inhabitant actually residing in said village, who shall have been such actual resident of said village for thirty days next prior to the time of offering his vote and who shall at the time of offering his vote be qualified to vote for member of assembly, shall be entitled to vote for all officers to be elected by virtue of this act; and also every person residing in the towns of Dix and Reading, who owns real estate in the said village to the value of one hundred dollars and over and whose place for the transaction of his ordinary business is in said village if otherwise qualified as hereinbefore specified, shall in like manner be entitled to vote for said officers."
This special charter also provided the qualifications of electors to vote on propositions. Section 75 of title 8 (L. 1918, ch. 36) of the special charter reads as follows:
"Qualifications of electors for voting on certain propositions. No elector shall be entitled to vote upon any question, resolution or direction relating to the raising of money by tax or the disposition of any funds or property of the corporation unless at the time of offering to vote upon such question, resolution or direction he shall be liable to be assessed and taxed for personal estate possessed by him in said village or for real estate therein owned or occupied by him."
The Village Law (Cons. Laws, ch. 64, § 41, subd. 2) is a general law governing by its provisions all those villages which are created under it or have been reincorporated according to article 13 of the law. The village of Watkins Glen, acting under its original charter, determined to reincorporate under the Village Law. The *Page 187 question arising in this case is whether it has succeeded in so doing by a compliance with the provisions of law providing for such reincorporation. The appellant claims that the village has failed in its purpose because the proposition to reincorporate was not carried by a sufficient number of legal voters; that there is no way in which the village can reincorporate under the Village Law except in the method provided by article 13 of that law. Section 300 of that article reads:
"A village incorporated by special law and subject to its provisions may be reincorporated under this chapter by adopting a proposition therefor. Such a proposition may be submitted at an annual election or at a special election to be called for that purpose.
"The board of trustees of such village may, upon its own motion, and shall, upon the petition of twenty-five electors assessed upon the last assessment-roll of the village, cause to be submitted at a village election a proposition for such reincorporation. * * *"
Notice will be taken that the proposition is to be submitted at an annual election or at a special election, but nothing is said regarding the qualification of the voters upon such a proposition. This, however, is found in other portions of the Village Law, under the proper heading, "Qualifications of voters," being section 41 of article 3. It reads:
"A voter at a village election, other than the first, must possess the following qualifications:
"1. To entitle him or her to vote for an officer, he or she must be qualified to vote at a town meeting of the town in which he or she resides, and must have resided in the village thirty days next preceding such election.
"2. To entitle him or her to vote upon a proposition he or she must be entitled to vote for an officer, and he or she must also be the owner of property in the village assessed upon the last preceding assessment-roll thereof."
The difference between the special charter and the *Page 188 Village Law regarding qualifications for voters when voting on propositions, as distinguished from voting for officers, is this: That under the former, the elector must be assessed and taxed for personal or real estate when the proposition relates to raising money by tax, or the disposition of any funds or property of the corporation; while under the latter he must be such a taxpayer to vote on any proposition.
A special election was held in the village of Watkins Glen on the 28th day of November, 1933, to vote upon the proposition, reading as follows:
"PROPOSITION NO. 1.
"Shall the Village of Watkins Glen, N.Y., be reincorporated under the Village Law of the State of New York, being Chapter 64 of the Laws of the State of New York for 1909, and the acts amendatory thereof?"
The election was not confined to those who owned personal or real property within the village, but all those were permitted to vote who could vote for village officers under the special charter, to wit, those qualified to vote for members of the assembly. It is conceded, for the purpose of this motion, that if the property qualification was required, the proposition was lost.
We are of the opinion that the general Village Law applies, and that only those voters who were qualified, pursuant to section 41 of that act, could vote at this election. The special charter, as before stated, gives no power by reason of any of its provisions to reincorporate under the Village Law. The propositions to be submitted to the People under the special act are those to be voted for in accordance with the provisions of that act. Only by reason of the general Village Law, and not the special charter, can a proposition to reincorporate be submitted to the villagers. No such proposition could be submitted under the special charter. Therefore, it seems quite reasonable, when the proposition is one which could only *Page 189 be submitted under the general Village Law, that the voters should be those qualified under that law. This reasoning is further supported by the fact that only property owners can vote on the original incorporation of a village. (Village Law, art. 2, § 12.)
This being our decision, it perhaps is unnecessary to call attention to the fact that even under the special charter of the village of Watkins Glen, it is very doubtful whether non-property owners could vote to reincorporate. Passing the village from the control of the authorities known as the village of Watkins Glen, incorporated under a special charter, to a reincorporated village, a new village of Watkins Glen, incorporated under the Village Law, is in one sense the disposition of the funds and the property of the corporation by transferring it from the control of one corporate body to that of another. Even under the special charter it is doubtful whether any but voters assessed and taxed for personal estate or for real estate were qualified to vote.
Some objection has been raised to the form of this action, which is in the nature of a declaratory judgment establishing the rights of the parties and seeking to have the courts determine that the election was illegal or that the proposition to be voted upon was lost. We have had these questions before and determined that, when the question as to the validity of the incorporation of a village or the right of officers thereunder to act was raised as soon as possible, resort to quo warranto was unnecessary. Where, however, the long-established usage had developed into a government de facto, other forms of remedy could not be resorted to. (Jarl Co. v. Village ofCroton-on-Hudson, 258 N.Y. 303; Gwynne v. Board ofEducation, 259 N.Y. 191.)
The complaint, with its exhibits, is the only pleading which can be considered in this case. A motion was made to dismiss it on the ground that it failed to state a cause of action, and on the further ground that the court had *Page 190 no power to determine the validity of the incorporation of the defendant under the general Village Law. The Special Term granted the motion, and dismissed the complaint, and the Appellate Division has affirmed the order. We reverse both these orders, and deny the motion, with costs in all courts.
The judgment and order should be reversed and the motion denied, with costs in all courts.