My dissent from the decision about to be made has as its basis the fact to which the Appellate Division opinion refers — that "There is no doubt that the project as passed on by the voters provides for a plant which will be sufficient to generate only power enough to furnish the same to those users in the village,other than Despatch Shops, Inc." (262 App. Div. 556, 566.) (Emphasis supplied.) The ordinance adopted by the Village of East Rochester to erect a municipal plant for the generation of electricity for light, heat and power, pledges the faith and credit of the village "* * * for the payment of the principal of and interest on * * * bonds" to be issued to meet the cost of the project. The ordinance also provides that — "A sufficient tax shall be levied each year to pay the principal of and interest on said bonds as the same shall become due to the extent, if any, that funds are not available for the purpose from revenues of the project." As I view the problem, the fact that the proposed municipal plant will "generate only power enough to furnish the same to those users in the village, other than Despatch Shops,Inc.", when considered with the further conceded fact that Despatch Shops, Inc. — a local taxpayer *Page 167 — will be called upon to pay its pro rata share of principal and interest on the bonded debt thus to be incurred, subjects that corporate taxpayer to an "unreasonable prejudice or disadvantage" in violation of section 65 subdivision 3 of thePublic Service Law. (See Gaynor v. Marohn, 268 N.Y. 417,430.)
In that connection it is to be noted that the statute (GeneralMunicipal Law, § 360, subd. 2), under which the respondent Village claims its power to undertake the project here involved, authorizes it to construct and operate the proposed public utility as an agency to furnish service "to its inhabitants," not to a portion thereof. The decision in effect construes the statutory phrase "to its inhabitants" as meaning that the service to be furnished may be "to its inhabitants" except a single taxpayer. In this instance that single taxpayer — although denied special benefits to be afforded other inhabitants — concededly may be called upon to pay a large portion of the principal and interest of the bonded debt to be incurred. Insofar as the project will afford to other inhabitants of the Village special benefits which are denied to Despatch Shops, Inc. — although that corporation may be called upon as a taxpayer to meet its share of the cost and maintenance of the plant — I believe the plan as now formulated will result in an unconstitutional taking of property through illegal taxation. (See Myles Salt Co. v. IberiaDrainage Dist., 239 U.S. 478, 485.)
LEHMAN, Ch. J., LOUGHRAN, RIPPEY and DESMOND, JJ., concur with THACHER, J.; LEWIS, J., dissents in memorandum in which CONWAY, J., concurs.
*Page 168Judgment affirmed.