This decision overturns what has been the accepted law and practice since 1870.
The original provisions relating to reincorporation of villages will be found in section 30 of title 8 of chapter 291 of the Laws of 1870. That act appears to have been the first general act relating to the incorporation of villages. Section 30 of title 8 provided that, "All persons before qualified to vote at an election in such village may vote at such election," that is, at an election upon a proposition to reincorporate. That was plain enough; and the statute continued in that form down to the enactment of the Village Law of 1897 (Laws of 1897, ch. 414). By that act the provisions in the older statute relating to reincorporation were cast into substantially their present form and constituted a separate article, as at present. The specific provision quoted above relating to the qualification of voters did not appear. It was, however, provided, as it now is, that if the proposition were submitted at a special election, that election should be conducted in the same manner as provided by law for an annual election in such village. The fair inference is that no change in what had been the qualifications of voters on the proposition to reincorporate was intended to be made. That, indeed, seems to have been the view of the Commissioners of Statutory Revision who drafted the act of 1897. In their note they say:
"A special village is made subject to such of its provisions as do not conflict with its charter. A special village is authorized either to continue under its charter *Page 191 in connection with the proposed general law, or to abandon its charter and adopt the provisions of the new law by reincorporation thereunder." (Report of Commissioners of Statutory Revision [1897], p. 86.)
"It is a rule of construction that a special statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application unless the intention of the legislature to repeal or alter the special law is manifest, although the terms of the general act would, taken strictly and but for the special law, include the case or cases provided for by it." (Buffalo Cemetery Assn. v.City of Buffalo, 118 N.Y. 61, 66; Van Denburgh v. Village ofGreenbush, 66 N.Y. 1.)
"Laws, special and local in their application, are not deemed repealed by general legislation, except upon the clearest manifestation of an intent by the legislature to effect such repeal, and ordinarily an express repeal by some intelligible reference to the special act is necessary to accomplish that end." (People v. Quigg, 59 N.Y. 83, 88; Jamestown v. HomeTel. Co., 125 App. Div. 6; Aldinger v. Pugh, 57 Hun, 188.)
Shortly after the revision of 1897 inquiry was made of the Attorney-General as to the qualifications of voters upon the question of reincorporation. The opinion rendered was to the effect that any person having the qualifications prescribed by a special village charter was entitled to vote upon the proposition to reincorporate under the general Village Act. (Report of Atty.-Gen. 1897, p. 332.) The same conclusion was reached in the only adjudicated case on the question. (Matter of Sag Harbor,32 Misc. Rep. 624 [1900].)
When the Special Term and the Appellate Division decided the present case, they applied what had always been understood to be settled law.
Apart from the desirability of uniformity, I can see no reason for the rule now announced. But that is a legislative *Page 192 and not a judicial consideration. Moreover, it seems clear that the Legislature considered the point and found it either impractical or undesirable upon other grounds. The undoubted rule of construction and the clear intent of the draftsmen of the Village Law was known to the Legislature from the report of the Statutory Commissioners. As stated, the intent was that "a special village is made subject to such of its [general Village Law] provisions as do not conflict with its charter." Knowing that special village charters defined variously the qualifications of voters at village elections, the Legislature in article 13, relating to reincorporation, deliberately omitted any specific provision on the subject. On the other hand, in article 3, relating to original incorporation, where a prescribed area was to be taken from a town and made into a village, the qualifications of those who could vote on the proposition were clearly defined. There is good reason for the distinction. The change from town to village government ordinarily entails an increase in taxes. The increased burden falls on property owners. Their vote alone should control. Hence to the qualifications of a voter at a general town meeting was added the qualification that he should be a property owner. No such consideration is involved in a change from village government under a special charter to village government under general law. The differences are largely matters of form and detail.
Upon every principle of statutory construction, it seems to me that the Legislature intended the provisions of special charters defining the qualifications of voters to apply at an election for reincorporation.
The judgment should be affirmed, with costs.
O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur with CRANE, Ch. J.; CROUCH, J., dissents in opinion in which LEHMAN, J., concurs.
Judgment and order reversed, etc. *Page 193