(dissenting). The appellants attack a proposition which established a water improvement district passed by the resppndent Town Board and approved, by the voters at a refer*297endum. A petition under subdivision 3 of section 209-e of the Town Law wás filed, thereby requiring that the proposition be submitted to the referendum for approval by “ the affirmative vote of a majority of the owners of taxable real property situate in the proposed district. ’ ’ Contrary to the clear mandate of this statute, the Town Board resolved that not only property owners but all qualified electors of the town were eligible to vote at the election. The proposition was adopted.
The majority of this court has approved the creation of the district in this manner, determining that subdivision 3 of section 209-e of the Town Law unconstitutionally restricts the franchise. I disagree. The .statute is constitutional and the Town Board illegally exceeded the powers delegated to it by the State Legislature when it allowed nonproperty owners to vote. Its action should be declared void.
The district created had the limited purpose of obtaining and maintaining the supply of water throughout the town. It had no other function and performed no other service. The estimated cost was $1,600,000 which was to be raised by general obligation bonds of the district to be paid for entirely by assessments against the real property benefited. The cost of maintaining the system was to be paid partly by benefit assessments and partly by use charges. Properties not actually using the service, but declared benefited, nevertheless were required to pay the assessment. Any unpaid debts of the district would be liens upon the realty in the district.
In districts such as this, formed for a special limited purpose and in which a disproportionate effect of the districts’ activities fall upon the landowners as a group as opposed to residents qua residents, the right to vote may be limited to landowners. (Salyer Land Co. v. Tulare Water Dist., 410 U. S. 719; Associated Enterprises v. Toltec Dist., 410 U. S. 743.)
Exercising its legislative powers, the Town Board created this district coterminous with the town lines because it assumed that all property in the town was benefited. Those developed properties adjacent to the water main are to be assessed $110 per year for the capital cost and in addition, an estimated charge of $75 per year if they use the water. Fully benefited undeveloped property is to be assessed $10 per year for capital cost. There are 1,163 properties in these two categories. The board also declared that the other 774 properties in the town, those not adjacent to the water main, are indirectly benefited. They are to be assessed only $1 per year. These payments are not real property taxes, as the majority suggests. They are additional *298benefit assessments charged against real estate each year to retire the debt. Finally, there are an estimated 750 nonproperty owner residents in the town who were permitted to vote.1 As property owners within the district these incidentally benefited property owners were entitled to vote on the proposition, and patently the 774 indirectly benefited property owners and the nonproperty owners had an important effect on the outcome of this election in which a total of 1,348 votes were cast, only 713 of them in favor of the proposition. But more pertinently, these voters, property owner and nonowner residents alike, did not live in areas , intended to be served by the water main. If the board found the indirect benefit to the property owners not adjacent to the water main was only $1 per year, the benefit or interest of the nonowner resident living in these areas necessarily must have approached nil.
It is argued that residents generally are affected by this improvement even though they are not users themselves (nor are many of them ever likely to be, because they live miles remote from the line). The residents’ interest must consist of some financial responsibility and more than a broad general civic interest in fire prevention or such things. In the absence of such involvement, the State may properly limit their participation in the vote and it is unrealistic to say that nonowner residents under these circumstances are affected in a “ substantial way ”, that their interests are not “ disproportionately less ” than the property owners in the district who must pay for the improvement. (Salyer Land Co. v. Tulare Water Dist., supra; and cf. Phoenix v. Kolodzieiski, 399 U. S. 204, 209-210; Cipriano v. City of Houma, 395 U. S. 701, 705-706.) These residents have no significant or measurable stake in the project. Their interest in it is not even roughly equivalent to that of the property owners who must bear its cost. Including them in the vote served only to dilute the voting strength of those who did have a substantial interest in the improvement. The limited franchise of the statute had a discernible valid basis. It should not be declared unconstitutional by searching for some illusory interest that is not represented at the ballot box.
If the case involved a problem of representational democracy calling for the election of officeholders to serve a governmental unit in a broad spectrum of public activities, the principle of *299Reynolds v. Sims (377 U. S. 533) most assuredly would apply. But this legislation established a proprietary service, in effect, a public owned company to supply a limited service used and paid for by a limited group.
To the extent that there is some fallout benefit to residents of the town generally, this case is not different from the incidental benefit to nonproperty owners in the flood control and soil conservation project performed by the district in Associated Enterprises v. Toltec Watershed Improvement Dist. (supra). Furthermore, even this limited interest is represented. It is the Town Board, chosen at a general election, which prepares and administers the proposal through its formative stages, determining the size, cost and detail of the district. Indeed, the Town Board may finally establish the district in the absence of a permissive referendum sought by the property owners.
The majority relies upon the rulings stated in Phoenix v. Kolodziejski (supra); Cipriano v. City of Houma (supra) and Kramer v. Union Free School Dist. (395 U. S. 621). They are distinguishable. Kramer relates to school district elections and its facts are not applicable to this case. In Phoenix v. Kolodziejslci, the proposition voted upon sought to finance multiple civic improvements including sewers, playgrounds, a library, a police station and parks. The improvements were to be paid for by general obligation bonds backed by the credit of the municipality and to be retired by the proceeds of property taxes and any other municipal revenues. In Cipriano v. City of Houma, the legislation sought to authorize extension of a city-owned gas, electric and water utility service to be paid for by revenue bonds backed by the city’s general credit. The bonds were retired from use revenues paid by utility customers. In each case, the object contemplated was a multiple public service available to all residents within the city. The financial burden of the improvements fell upon property owners and nonproperty owners alike and their interests in the improvements were not substantially different. In this case, quite the opposite is true. The property owner is solely responsible for the cost of building the project and for its fiscal integrity.
Courts should not lightly upset legislative acts. In Salyer Land Co. v. Tulare Water Dist. (supra, p. 725) the court quoted with approval from Williams v. Rhodes (393 U. S. 23, 30): “ ‘ In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protect*300ing, and the interests of those who are disadvantaged by the classification.’ ”
Subdivision 3 of section 209-e of the Town Law contains a valid voting restriction in favor of property owners who pay for the improvement as opposed to those whose only connection with it is that they happen to reside within the district. The economic burden of the improvement cannot fall upon them as residents and unless they are property owners they are affected minimally, if at all, by the project’s development. The Legislature has not infringed on any Federal constitutional right of equal protection when it declared that in cases such as this, if there is an objection to the Town Board’s plan, a majority of the taxable landowners must willingly assume the financial burden before the enterprise may be undertaken.
Goldman, P. J., Marsh and Henry, JJ., concur with Cardamons, J.; Simons, J., dissents and votes to reverse the judgment and grant the petition in an opinion.
Judgment modified on the law and facts in accordance with opinion by Cardamons, J., and as so modified affirmed, without costs.
. It is claimed, and not denied that residents were qualified as electors up to the day before the election.