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[143 N.Y.S.2d 416] Peters, Wemple, Daly & Pritchard, Schenectady, for respondent-appellant
(Roy W. Peters, Schenectady, of counsel).
Richmond D. Moot, Schenectady, for petitioner-respondent.
Commissioner of Education of the State of New York, as amicus curiae by Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman, Albany, and George B. Farrington, Chatham, of counsel.
Vandewater, Sykes, Heckler & Galloway, as amicus curiae.
Before FOSTER, P. J., and BERGAN, HALPERN, IMRIE and ZELLER, JJ.
FOSTER, Presiding Justice.
It has been determined by the Supreme Court at Special Term, in a proceeding under Article 78 of the Civil Practice Act, that a bond resolution of the respondent Board of Education, dated November 12, 1954 is null and void. The declaratory judgment appealed from also permanently enjoins the respondent from constructing a new high school building, purchasing additional land therefor, and from issuing bonds of the district for such purposes.
The facts are not in dispute in any respect. Respondent-appellant is a Board of Education of a Central School District. It duly called a special district meeting for April 12th, 1954 and submitted to the electors of the district a proposition to acquire lands, construct and equip a new high school at an estimated cost of $2,266,000 to be raised by tax on the [143 N.Y.S.2d 417] taxable property in the district and to authorize the issuance of bonds therefor. The proposition was carried by a majority vote, but not by a two-thirds vote of the electors present. Concededly the bonded indebtedness of the district at the time was in excess of 10 per cent of the full value of all the taxable real property in the district. On November 12, 1954 the appellant Board of Education adopted a resolution to finance the project by the issuance of serial bonds in an amount not exceeding the sum voted at the district meeting. The resolution fixed no date for the issuance of the bonds, but it did recite that at the time of its adoption the outstanding indebtedness of the district, plus the proposed bond issue, after deducting the estimated building aid quota, would be less than 10 per cent of the full valuation of the district property by reason of the fact that new assessment rolls, as equalized, were available for the purpose of computing the statutory debt limit. Thereafter this proceeding was brought by petitioner, who is a taxpayer
in the district, under Article 78 for a judgment declaring the bond resolution adopted by the appellant Board null and void, and for relief by way of injunction.
The Special Term held in effect that the proposition submitted to the electors of the school district on April 12, 1954 was lost because it was not passed by a vote of two-thirds of the electors present. This determination was based upon the requirement set forth in Section 104.00, subd. d, of the Local Finance Law. It follows of course that if the Special Term was correct in this determination the bond resolution of the appellant Board dated November 12, 1954 was null and void. It is appellant's contention that under this section of the Local Finance Law no determination with respect to the debt limitation of the district need be made until the actual issuance of the bonds is imminent. Under that theory, since the proposition received a favorable majority vote, the appellant Board could proceed with the issuance of the bonds at a later date if at that time the total indebtedness of the district was under the statutory debt limitation. Stated in slightly different language the sole issue presented on this appeal is whether the indebtedness of a school district must be determined and considered at ...