Craig v. Town of Andes

The plaintiff alleged the performance of the statutory conditions on which alone the defendant could be made liable to pay the bonds or coupons in question, but in the opinion of the trial court so failed in proof that it gave judgment against him upon the ground that those instruments “ were issued without authority of law,” and were void. This has been reversed by the Supreme Court, and a new trial granted, but upon what ground does not appear. The respondent, however, seeks to maintain the order of reversal upon the grounds, first, that the bonds recite on their face “ that all necessary legal steps and proceedings have been taken to comply with the laws under which they were issued; second, that the judgment and adjudication of the county judge of May 22, 1871, is absolutely conclusive upon the defendant; third, that the statute was in fact complied with.”

It would be a sufficient answer to the first position that the recitals in the bonds are not in the form above suggested.

It is, however, unnecessary to discuss this question, for we have heretofore refused to give that effect to the recital in similar bonds, and have repeatedly held that one who takes such instruments, although in good faith, must see to it that they are authorized by the statute under which they purport to have been issued. (Town of Lyons v. Chamberlain, 89 N. Y. 585 ; Cagwin v. Town of Hancock, 84 id. 532.)

The next proposition is of a more serious character. The statute (Laws of 1869, vol. 2, p. 2303, chap. 907, §§ 1, 2) enables a majority of its tax payers whose names appear upon the

The county judge predicated his order upon-them, treated all the papers as constituting one petition, and filed and made

The desire expressed in the petition is not within the purview of the act (Laws of 1869, supra). The petitioners give no absolute consent. It is qualified or conditional. We desire, they say, the company to he aided, provided, or on condition, that the line of the road is as we indicate. So far as the petitioner himself is concerned, the right to tax his property is clogged with the condition that the road shall run as he directs, and is entirely inconsistent with the right to create a tax in aid of a road constructed without reference to his wish, and with regard only to the public good. This seems plain enough on any principle applicable to the construction of statutes, but it is also within the authorities, which uniformly require that every statutory condition, precedent to the taking, by any mode, of private property for public use as against the

In proceedings under’ certain acts giving a materialman or mechanic alien “with the written consent of the owners,” it was held that the consent must be absolute and not conditional, and that such consent, when coupled with the provision that the repairs should be at the cost of the tenant, was not an absolute consent, and was insufficient to authorize a lien upon the building. (McClintock v. Criswell, 67 Penn. St. 183 ; Boteler v. Espen, 99 id. 313 .)

In Butternuts and Oxford Turnpike Co. v. Worth ( 1 Hill, 518 ), the defendant subscribed for stock in plaintiff’s road, “ Upon condition that said road shall be laid by Fayette village and Guilford Centre.” The commissioners for securing subscriptions obtained several signatures to this, and also to another, absolute in its terms. Upon suit brought the court held the subscription did not bind the defendant, saying subscriptions for stock, under the act there in question (1 R. S. 578), must be absolute, adding, in words applicable here, “ this act confers no power to make conditions, and to allow such a thing would be contrary to public policy. Divers men would perhaps have their divers routes, and endeavor, improperly, to influence the course of the road.” This case was cited' and applied by this court in Fort Edward and Fort Miller Plank Road Co. v. Payne ( 15 N. Y. 583 ), where the condition of subscription was that the road should be extended to a point named- by the subscriber. The subscription was held void, as tending to promote private interest at the sacrifice of the public convenience, for which, alone, the formation of such corporations was authorized.

In Troy and Boston R. R. Co. v. Tibbits ( 18 Barb. 298 ) a conditional subscription to stock in a railroad corporation, organized under the General Railroad Act, was held void, Judge Wright saying : “The law of 1848 confers no power to make conditional subscriptions, and such a thing is contrary to public

The conclusion reached by us upon the point already considered renders it unnecessary to discuss other questions raised by the appellant, and also answers the claim of the plaintiff that the town is estopped from questioning the validity of the coupons, for, as they were issued without authority and in violation of law, there is, in respect to them, nothing in the circumstances of the case to prevent the defendant from availing itself of that defense. (Cagwin v. Town of Hancock, supra.) The learned counsel for the respondent relies upon the decision in Calhoun v. Delhi and Middletown Railroad ( 28 Hun, 380 ). It was in equity and involved the allowance of an injunction to restrain the payment of bonds issued under the proceedings above referred to, and to have them adjudged void and canceled. Many propositions are discussed by the learned judge in the opinion there given, which we do not find it necessary now to determine. Nor is the correctness of that decision in question here, for a court of equity might, in its

But so far as the question relates to the form and validity of the petition, the views of the learned judge are at variance with those above expressed, and we cannot agree with them. They are in substance, first, that the condition inserted in,the petition was a modification which the petitioner had a natural right to make; second, that it is expressly authorized by the act of 1871 (Laws of 1871, chap. 925, § 1), which declares that the petition may be absolute or conditional; third, because as stated upon argument before him, the railroad as a fact was located by Fish creek and Shavertown, and so he says “no ground of complaint on that score exists.” The first and third might deprive the party consenting of any favor from a court in equity, but cannot be accepted as equivalent to the positive consent of the tax payer, upon which alone the jurisdiction of the county judge could be'invoked. The whole proceeding is. in violation of natural right. That leaves to each person control over his own property without regard to the wishes of his neighbors, however numerous, and the statute which permits their interference is, as we have already held, “ subversive of the just rights of the minority.” (Town of Wellsborough v. N. Y. & C. R. R. Co., supra.) Whoever, therefore, claims an advantage from it must see that each step required by the statute is taken in the manner and at the time prescribed. (People v. Spencer and Town of Wellsborough v. N. Y. & C. R. R. Co., supra.) In these cases although the fact omitted from the petition was supplied by evidence, the proceedings failed because the statute was not complied with.

As to the other ground: The statute of 1871 (supra) has no application. The petition was signed in 1870 and presented to the county judge and filed by him on the 6th of May, 1871; on that day he made the order which lies at the basis, of these proceedings, and it must be sustained, if at all, upon the jurisdiction thus acquired. The act of 1871 was not passed until May 12, 1871. It cannot aid this case. If it is applied, however, the proceedings would be defective, for a reason supplied

Our attention is also directed to the act of 1870 (Chap. 507, vol. 2, Session Laws of 1870) entitled “An act to define the powers of commissioners appointed under chapter 907 of the Laws of 1869, binding municipalities to aid in the construction of railroads.” Its provisions do not seem to aid the plaintiff or have any tendency to relieve the case of the difficulty I have been considering. Its title indicates its object, and the act itself clearly relates to a different matter from the one on which the difficulty arises. “ It shall be competent,” it declares, “ for any corporation, in aid to the construction of whose railroad, bonds shall have been authorized to be issued by any municipal corporation ” * '* * * * “ to enter into any agreement with the commissioners appointed to issue said bonds, limiting and defining the times when, and the proportion in which, said bonds or their proceeds shall be delivered to said corporation, and the place or places where, and the purposes for which, such bonds or their proceeds shall be applied or used, and any such agreement in writing, duly executed by such corporation, and a majority of such commissioners, shall * * * * be valid and effectual.” It confers a new power upon these officers, but I am unable to see that it relieves the petition of the defect by reason of which it is ineffectual for any purpose, even to authorize the appointment of commissioners. It gives no power to locate a road, but the right to designate upon what portion of a road already located the bounty of the town shall be applied. Nor can the case of The People, ex rel. Hoag, v. Peck ( 4 Lans. 528 ), to which also reference is made, help out the respondent. The petition then before the court was presented under the act of 1871 {supra), and was thought to be authorized by it, and the remarks of the court as to the probable effect of the act of 1870 can hardly be deemed to express even the opinion of the learned judge who spoke for the court, for they were made as suggestions merely, and are not consistent with the principle then fully established by this court and referred to with approbation in the

It follows that the order appealed from should be reversed, and the judgment entered on the report of the referee affirmed, with costs.

I do not concur in the conclusion which the majority of the court have reached, nor in the reasoning upon which that conclusion is founded. The town of Andes disputes the validity of its bonds, after having steadily paid the interest upon them for a period of about ten years, after having also paid a part of the principal, and when innocent persons, deceived by the appearance of validity, have largely become their owners. The adjudication of the county judge, before whom all parties were summoned, and given an opportunity to be heard, has remained unchallenged during all this period of time, but it is now discovered to have been without jurisdiction. The ground of this conclusion is a single one out of many alleged, and to that one alone it now becomes necessary to direct attention. Briefly, though I trust fairly, stated it is this: that under the statute of 1869 a petition, “ absolute in form,” was requisite to the jurisdiction, and that the one presented was not “ absolute in form,” because one-quarter of the signers added to their consents conditions that the railroad be located by a particular route.

Now it is to be observed that the statute nowhere, either in terms or by necessary implication, prescribes the “ form ” of the petition. The language of the act is not that the majority of the tax payers must signify their desire without condition annexed. No such words are in the act. The legislature has not so declared. The requirement is argued into it as an

,The question of jurisdiction arises solely upon the paper presented. Nothing else, no other evidence, no after-ascertained facts are before the officer. Neither he nor we have any right ■ to mix iip that question with facts afterward proved. The fact advanced and relied upon to justify a denial of jurisdiction depends upon the number of tax payers in the town as represented on the last preceding tax-roll. But that tax-roll was not before the county judge on the presentation of the petition. The officer could not judicially know how many names were on the tax-roll, how many tax payers were in the town, or what number of signers constituted a majority of the unknown whole number. He could not know and had, no right to know; and to argue him out of his jurisdiction, by reference to what is said to have been proved when .his jurisdiction was assailed on the trial in the present case, is to make the jurisdiction depend, not upon the face of the petition as presented, not upon the sufficiency of its allegations, but upon their truth as matter of fact. It is as if one should demur to a complaint on the ground that it did not state facts sufficient to constitute a cause of action, and then seek to sustain the demurrer on appeal in this court by showing that, in an after action, it was proved that the facts pleaded were not true. The jurisdiction of the county judge depended upon the sufficiency of the allegations and not upon their truth ; upon the paper presented, not upon the facts behind it. What possible protection could the adjudication of the county judge give if its correctness could always be assailed under the guise of an inquiry into a jurisdictional fact? The statute is not perhaps

These views clear the way to what I conceive to be the true question to be considered, which is the sufficiency of the petition on its face, and that alone. There were about two hundred signers in all. Fifty or sixty of them signed upon condition; one hundred and fifty absolutely and without condition. The county judge could not judicially know that the one hundred and fifty were not a majority in number and amount of the whole number of tax payers on the assessment-roll. They, at least, signed absolutely. If the other fifty names had not been signed at all, the petition signed by the one hundred and fifty would assuredly have given jurisdiction. The proposition then comes down to this : that the consent of the one hundred and fifty is annulled by the presence on the same paper of the names of fifty persons who did not legally consent at all. To my mind the suggestion is a very serious one, because necessarily the same result would follow if but one name had a condition attached, and .a case might arise where, of five hundred tax payers in a town, four hundred and ninety-nine signed absolutely and one upon condition, and because of that one consent which was not a consent, legally considered, the bonding would be void for want of jurisdiction. t It seems to me that if, as is contended, the fifty who did not sign absolutely did not consent, then simply the petition must be treated as not signed by them at all. The condition which

But I have not as yet done full justice to the doctrine of the majority. It has another phase, which seems to me the only one having any real importance. It is claimed that the petition asserts merely, and verifies merely, that the whole number of signers constitute a majority of the tax payers; and since some of them signed ineffectively and cannot be counted, it follows that the petition does not allege nor verify that the remainder still constitute a majority. This is a technical and artificial construction of the language of the petition, and impresses upon it a meaning which does not at all belong to it. If it be a sound construction it probably destroys every bonding petition which has ever.been presented, since it is difficult to imagine that any one application has been made which did not contain some one defective, or invalid, or ineffectual consent. The question, therefore, assumes a very grave importance. The position of my brethren with whom I differ rests upon the words in the petition “ the undersigned,” which are assumed to mean “the whole of the undersigned,” or all of them taken together, without rejection of a single name. Mo such meaning belongs to the phrase as used in the petition, nor was it within the contemplation of the applicants or the affiant. The latter did not mean to verify that persons desired to bond the town whose signature, with a condition, showed

But I go further even than this. I am satisfied that upon the technical construction, which I reject, the allegations of the petition and of the affiant were sufficient. The county judge had no right to assume that the desire of the fifty-three signers to bond the town was annulled or effaced by the condition annexed, and that these signatures were not effective, and could not be counted. Let it be steadily borne in mind that the precise question here is whether the petition gave to the county judge jurisdiction to institute an inquiry. When he made his final order the act of 1811 was in force, and the conditional desires were lawful and could be effectively counted, so that what transpired six days before that act took effect was that the county judge received the petition, and gave the required notice that he should proceed to inquire into its truth. Had he jurisdiction to institute that inquiry is, therefore, the exact question before us. I maintain that, at that point of the proceeding, the county judge had no right to reject the names of

Upon our consultation over this case I expressed the opinion that the act of 1870 legalized conditions, and that the suggestion of Judge Daniels to that effect in People, ex rel. Hoag, v. Peck, ( 4 Lans. 528 ) was correct. I still think so, but prefer, without discussing that question, to put my dissent upon the broader grounds which have been stated.

I think the order of the General Term was right and should be affirmed. *

Rapallo, Andrews and Earl, JJ., concur with Danforth, J.; Ruger, Ch. J., and Miller, J., concur with Finch, J.

Order reversed and judgment affirmed.