The People of the State of New York ex rel. John Fleming and Others, Respondents, v. Michael Daley and Others, as President and Board of Trustees of the Village of Lewiston, Appellants

The People of the State of New York ex rel. John Fleming and Others, Respondents, v. Michael Daley and Others, as President and Board of Trustees of the Village of Lewiston, Appellants. Submission of the question as to the reincorporation of a milage—when a petition is made therefor the submission must be made within a reasonable time. Section 300 of the Village Law (Laws of 1897, chap. 414) provides as follows “ A village incorporated by special law and subje.ct 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 a 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. * * *. A proposition for the reincorporation of a village under this article shall not be submitted at an election either annual or special during -the months of February or March.” Held, that while the section confers upon the trustees of a village, to whom such a petition is presented, a discretion as to the time when the proposition shall be submitted to the electors, such discretion is not arbitrary, but must be reasonably exercised; That the trustees are bound to submit the question within a reasonable time, and are not entitled to delay such submission for a period of eight months in order that the question may be submitted at a general election. Williams, J,, dissented. Appeal by the defendants, Michael Daley and others, as president and board of trustees of the village of Lewiston, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the cleric of the county of Niagara on the 16th day of October, 1903, directing the issuance of a peremptory writ of mandamus requiring the defendants to call a special election to vote upon the question of the reincorporation of the village of Lewiston. Patrick F. King, for the appellants. J. Boardman Scovell, for the respondents. [MAJORITY — Stover, J.:] Stover, J.: The village of Lewiston is incorporated under a special law. Application by petition was duly made to the defendant trustees under section 300 of the Village Law (Laws of 1897, chap. 414) to have the question of reincorporation submitted to the voters of the village qualified to vote on that subject, and on October 6,1903, the trustees resolved to submit the question at the general election to be held in May, 1904. The petitioners requested a special election to be held October 27, 1903. The provision of section 300 of the Village Law is as follows : “ 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 a¡a annual election or at a special election to be called for that purpose. The board of trustees of such a 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. "" * * A proposition for the reincorporation of a village under this article shall not be submitted at an election either annual or special during the months of February or March.” The claim of the defendants is that they have a discretion as to the time of submitting the proposition, and may either call a special election or wait Until the annual election in May, 1904. We think the contention of the defendants is too broad. While they have a discretion as to the time of submission-, such discretion is not arbitrary, but must be reasonably exercised. If they had determined to call a special election in May, it would hardly be claimed- that a wise discretion had been exercised; but had the annual election been about to occur within a short time of the presentation of the petition the defendants might well have postponed submission until then. It was the evident intent of the statute to provide a means of submission in cases where trustees did not move either from lack of interest in or open hostility to submission. Upon the presentation of the petition the trustees were bound to -move within a reasonable time and use all reasonable efforts for a prompt-and fair submission. The duty to act fairly and within a reasonable time lies upon every public officer. We think the delay of eight months in submitting the- proposition was not within the right of the defendants to impose and was not a reasonable time within which to submit the proposition, and it was their duty to call a special election within a reasonable time. The order should be affirmed, with costs. All concurred, except Williams, J., dissenting. Order affirmed, with costs.