People ex rel. White v. Hulbert

On the 31st day of August, 1870, certain taxpayers of the town of Saratoga Springs, applied, by petition, to the defendant Hulbert, county judge of Sara-toga county, (under the act of May 18th, 1869, chapter 907, permitting municipal corporations to aid in the con*479struction of railroads,) signifying their desire that the bonds of said town might be created and issued to the amount of'$100,000, and that such bonds or their proceeds might be invested in the capital stock of the Saratoga, Schuylerville and Hoosac Tunnel Railroad Company, for the purpose of aiding said company in the construction of its railroad.

The petition sets forth the fact of the organization of said company; that each of the petitioners is á taxpayer of said town, whose name appears as such upon the last assessment roll'of said town; that said petitioners are, in the aggregate, a majority in number of the taxpayers on the said assessment roll, and own or represent a majority of the taxable property within the limits of the said town. The petition was duly verified by one of the petitioners. Upon the presentation of the petition, on the day aforesaid, the county judge made an order requiring notice to be forthwith published in a newspaper published in said county, setting forth that on the 20th day of September, 1870, at 10 o’clock A. $$., at his office in Saratoga Springs, he would proceed to take proof of the facts set forth in the petition, as to the number of taxpayers joining in said petition, and as to the amount of taxable property represented by them. At the time and place, so appointed, he did attend, and the petitioners, by their counsel, also appeared, and one of the relators also appeared by counsel, to oppose said application. Proofs of the publication of the notice, as ordered, and of the facts set forth in the petition, were thereupon taken; and after hearing the proofs and the objections made thereto, by'the relators’ counsel, the county judge appointed and commissioned Henry W. Merrill, Aaron B. Olmstead and Edward R. Stevens, commissioners, with full power and authority to create and issue the bonds of said town of Saratoga Springs. The relators sued out a certiorari, to bring the proceedings before this court for re*480view, and the case now stands before us for review upon return to the writ.

The right to appoint commissioners to issue the bonds of a town, to aid in the construction of a railroad, under the said act, depends upon the fact of a majority in number of the taxpayers of the town, owning or representing a majority in amount of the taxable property within the limits of the town, petitioning the county judge for that purpose. The last assessment roll of the town is made the criterion for ascertaining such fact. The question to be determined, then, by the county judge, was, whether or not the petition presented to him answered this requirement of the statute.

It is not denied by the relators, that the names upon the petition were a majority in number of those upon the assessment roll; nor is it denied that the persons whose names are signed to the petition own or represent a majority, in amount, of the taxable property within the town; but, it is stated that a portion of the names upon the petition are signed as trustees, executors, administrators and guardians, respectively; also that the name of John 0. Hulbert, county judge, before whom the proceeding was had, was one of the names upon the petition; that it did not appear that such trustees, ■ executors, administrators and guardians, had authority to sign the petition; and it. is insisted that those, together with the name of the county judge, should be excluded; and that if they are so excluded, the remaining names will not represent a majority, in amount, of the taxable property of the town. It appears, from the evidénce produced to the county judge, at the hearing, that the whole number of taxpayers, whose names appear upon the last assessment roll of the town, was 1529, and that of those 830 are signed to the petition; that the aggregate amount of assessments on the roll w.as $2,318,170, of which amount the sum of $1,189,394 was assessed against the petitioners. Half the number of *481taxpayers is 764§-, so that there is a majority of 65 in the number of the petitioners. Half the amount of the assessments on the roll is $1,159,085. There is, then, a majority in amount, represented by the names on the petition, of $30,309. The relators claim that the aggregate sum of $34,551 of the amount represented by the petitioners, is represented by trustees, &c., and by the county judge, as . above stated, and that this sum being deducted, leaves the amount represented by the petitioners $4242 less than half the amount upon the assessment roll, so that the petitioners fail of a majority, and do not therefore come within the statute.

In regard to a portion of the names objected to, I think the objection well taken, inasmuch as the name signed to the petition as executor or administrator, does not appear on the assessment roll, where the assessment is to the “ estate” of the testator or intestate, and the name of the person signing the petition as executor or administrator is omitted. In such cases, it not appearing to the county judge that the signers are in fact what they assume to be, their signatures should have been, and unless they are necessary to make up the requisite majority, in number and amount, we are to assume, were excluded by the county judge. Those objected to, and in regard to whom I think the objection sustainable, are J. C. Shepherd, for Shepherd children ; Terwilliger and Waterbury, for Baptist church; Mrs. Weibelzall, administratrix; Waterbury, executor of Buell’s estate;» Holloway, administrator of Burnham’s estate; Elvira Putnam, executrix of W. Putnam’s estate; and B. Thrasher, guardian of S. H. Barrett’s estate. These, together, represent the sum of $5760. The residue of the relators’ list of names objected to, I think, are properly on the petition. The first of these is George S. Batcheller, executor and guardian of the Cook estate. This name appears on the roll in this form: “ George S. Batcheller, guardian.” He was called as a witness, and *482testified that he was sole executor of the Cook estate, which was nearly all personal property. Being assessed on the roll as guardian, he had the right to sign the petition as guardian, which he did, adding the estate which he. represented. The act authorizes persons whose names appear on the last assessment roll as owning or representing taxable property, to become petitioners. The language is: “ Whenever a majority of the taxpayers of any municipal corporation in this State, whose names. appear upon the last preceding tax list or assessment roll of said corporation, as owning or representing a majority of the taxable - property in the corporate limits of such corporation, shall make application' to the county judge of the county in which such corporation is situated, by petition, verified,” &c. It is not necessary that'the petitioners should be owners of the property for which they are taxed. If they represent it in any capacity, and are assessed on the tax list as so representing it, then they are taxpayers, and may become petitioners. George S. Batcheller, therefore, is entitled to be counted.

Another of the residue of the relators’ list of names objectéd to is First' Congregational Society. In regard to corporations, the act provides as follows: “ And any solvent ■ moneyed, manufacturing, or other corporation or company, formed under the laws of this State, and being assessed on real or personal property therein, shall have all the rights and privileges under this act, so far as property represented is concerned, as other taxpayers, and the board of directors or trustees of any such corporation of company, may apply to the county judge, by petition, in the same manner as herein provided for other taxpayers.” (§ 1 of the act.) How this Congregational- Society is assessed on the last assessment roll, and it was proved before the county judge that its board of trustees, by resolution, authorized the signing' of the petition in its name. ' I have no doubt that *483it was entitled to be counted by the county judge, as a proper petitioner.

And then comes the relators’ list of names to which objection is taken—that of John C. Hulbert, county judge. His name appears on the last assessment roll, both in his individual capacity and as guardian, and it is signed to the petition in both capacities. The relators insist, not only that the sum which his name, as guardian, represents, cannot be regarded, but that by becoming a petitioner, he has deprived himself of all jurisdiction in the matter,'and that the proceedings, before him are, for that reason, altogether void. What has .been already said in regard to Batcheller, applies to Hulbert, considered merely as guardian. -■

The more important question is, by becoming a petitioner, did he become incompetent to take cognizance of the proceeding ? The relators’ counsel bases his allegation of want of jurisdiction in the county judge upon the ground that by signing the petition he became an interested party, to the proceedings, and was therefore deciding his own case. It is necessary to inquire, therefore, whether by signing the petition he did become any more interested in the question to be decided by him than he would have been if he had not signed it. The question was one affecting the pecuniary interests of every taxpayer in the town, whether petitioners or not, to wit: whether or not the town should be authorized to issue its bonds for |100,000 in aid of the railroad. If he had not signed the petition, it is undeniable that he would have been competent, and yet he would have been, in that case, interested no less than he is now. The signing of the petition is, in effect, no more than a mode of giving the consent of the taxpayer to the issuing of the bonds. The bonds cannot be issued except by the vote of a majority of the taxpayers. The signing of the petition is a mode of tak- ► ing the vote. The county judge then stands in the posi*484tion of a taxpayer having voted for the issuing of the bonds. This, I think, does not disqualify him from counting the votes, and ascertainig whether a majority, in number and amount of taxable property represented, has been given for the bonding of the town, or not. If such a majority has been given, the county judge has no power in the premises, except to obey the statute, which makes it his duty, in such case, to appoint' three commissioners to issue the bonds. There is no force in the objection that the county judge was deprived of jurisdiction. (See People v. Wheeler, 21 N. Y. 86. Clark’s Ch. 190, Moak’s ed. and note.) The aggregate amount of taxable property which these names represent is $28,791, more than enough to overcome the deficiency claimed, and leave a considerable majority in amount represented by the petitioners.

The county judge having been satisfied in this case, by the proofs before him, that the petitioners were a majority of the taxpayers appearing on the last assessment roll, and represented a majority in amount, of the taxable property assessed on said roll, did so adjudge; and thereupon appointed three persons, to wit, Henry W. Merrill, Aaron B. Olmstead and Edward B. Stevens, (declared in said order to be respectively freeholders, taxpayers and residents of said town of Saratoga Springs,) commissioners to create and issue the bonds of said town to the amount of $100,000, the sum set forth in the petition. The relators’ counsel objects that it does not appear that these commissioners were freeholders; and further, that one of the commissioners appointed is a stockholder and director of said railroad, and that the other two are stockholders thereof, and that therefore they are riot eligible to such appointment. I do not think, upon this proceeding, it is competent for the relators to bring in question the eligibility of the persons whom the county judge, selected as commissioners. Ho such question is made by the affidavit or complaint on which the writ of certiorari was issued. *485Such complaint, after stating fourteen grounds on which, it alleges that the proceedings before the county judge to bond the town were void, in none of which is any objection made to the commissioners, closes with a general statement, that the relators, believing the proceedings and decision of the county judge, and the proposed proceedings of the said commissioners, illegal and without authority, and tending to impose an illegal tax upon taxpayers of the town, ask that a certiorari may issue, to the end that said proceedings may be reversed, &c. And the writ does not call for any return on which the question of the eligibility of the commissioners can be examined. The return therefore fails to show anything on the subject of the eligibility of the commissioners,.except that the order or judgment of the county judge states that they are freeholders, taxpayers and residents of said town. The only ground on which the relators can claim that they are stockholders or directors of the said railroad company, is that it appears incidentally, in the proofs before the county judge, that persons of the same name are such. If the question was open, this would not, under the circumstances, I think, be sufficient to warrant us now to decide that these commissioners were so connected with the railroad company; and as to their being freeholders, taxpayers and residents of the town, the statement to that effect is here, in the absence of proof to the contrary, sufficient. The learned counsel of the relators suggests that the act of the legislature, under which the proceeding was had, is .unconstitutional and void. In this we cannot agree with the counsel, in the face of decisions of the Court of Appeals in the cases of the Bank of Rome v. The Village of Rome, (18 N. Y. 38;) Starin v. The Town of Genoa, (23 id. 439 ;) and Gould v. The Town of Sterling, (Id. 456.)

It is also claimed that the bonding of the town should have been based upon the assessment roll of 1870, instead of that of 1869, which was the one used in the proceed*486ing. The evidence clearly showed that at the time the proofs were taken the assessment roll of 1870 had .not been completed. I think the requirements of the statute have been complied with, and that the proceedings before the county judge were regular, and his order or judgment thereupon was fully warranted, and should be affirmed. 2sTo costs can be given to either party.

Miller, P. J., concurred.

The act under which these proceedings are instituted, authorized the divesting of individuals of their estates by unusual methods, not known to the common law, and not known to general provisions of the statutes. It is a proceeding by special statute authority, and in derogation of the principles of the common law. In all such cases, jurisdiction can only be obtained by the strictest observance of the statute authority; nothing can be made out by intendment. The due execution and observance of the power granted must be shown; and in such cases there is no presumption that public officers have done their duty, but every step in the proceeding must be proved to be within the powers conferred by the act. (Sharp v. Speir, 4. Hill, 76. Striker v. Kelly, 2 Denio, 323. Doughty v. Hope, 3 id. 594. S. C., 1 N. Y. 79. Adams v. Saratoga and Wash. R. R. Co., 10 N. Y. 330. Cruger v. Dougherty, Ct. of Appeals, December term, 1870.) I copy the following extract from an unpublished work, soon to appear: “ But it must be kept in mind, however, that whenever, in pursuance of law, the property of an individual is to be divested, by these proceedings, against his' will, there must be a strict compliance with all the provisions of the law, which are made for his protection and benefit. Those provisions must be regarded as in the nature of a condition precedent, which must not only be‘complied with before the right of the property *487owner is disturbed, but the party claiming authority, under the adverse proceeding, must affirmatively show such compliance.” So, too, it is equally a well settled rule of law, that where á statute requires proof to be made in any proceeding, it must be by legal evidence ; unless from the language of the statute it is intended to be by affidavit; or where, from some qualifying language in the context, it is apparent that the legislature intended some other method of proof than the best legal evidence. (Buffalo and State Line R. R. Co. v. Reynolds, 6 How. Pr. 98. Brown v. Sichman, 9 John. 75, 76. Terry v. Fargo, 10 id. 114. Id. 167.) Things to be proved must be established by competent and satisfactory legal evidence. (1 Greenl. Ev., § 1.) It has lately been decided in the Court of Appeals, “In the matter of the application of the Rens. & Sar. R. R. Co. v. Davis,” (reported in the Albany Law Journal, No. 57,) “ that the taking of private property for public use is in derogation of private rights, and in hostility to the ordinary control of the citizen over his estate, and is not to be extended by implication. To authorize the taking of land under the right of eminent domain, the express authority must be shown.” Guided by these rules in the construction of the act of 1869, (eh. 907,) under which these proceedings were taken, the second section of the act makes it the duty of the judge, at the time and6 place named in the notice, to proceed to talce proof as to the said allegations in said petition, &c. This means legal proof. What were those allegations ? Among other things, they are, that the petitioners are a majority of the taxpayers, or that they represent a majority of the said .taxpayers, and that they desire bonds to be issued; and bonding the town and creating a liability against the town and against the taxable property to the amount of $100,000. These were the things to.be proved, and proved by legal evidence. Such legal proof, I think, was not produced before the county judge, as showed that a majority of the taxpayers *488and representatives of a majority of them had petitioned for the issuing of these bonds. A considerable portion of the taxable property of that municipality, to. be divested, diminished, or made liable to the proposed tax or liability, belonged to infants, who were represented by guardians.

The property of infants is always, and in an especial manner, under the protection of the court, and every act calculated to affect their interests injuriously, the courts are ever jealous to regard; and whenever the court can discover any dereliction of duty on the part of guardians or trustees of infants, they will be careful to require, at least, "that all the forms of law shall be observed, and they will not allow guardians or trustees to be guilty of devastation of the estates of their wards or cestuis que trust, or to put them at hazard. "Upon the tax roll was an assessment of $2000 against “ the Shepherd children.” This was claimed as a part of the majority of the taxable property petitioning for the bonds. The authority for this petition is the signature of one “ John C. Shepherd, for Shepherd children.” hTo authority was proved. But it is "now said that the county judge did not count this in as a part; and it is alleged that the relators must affirmatively show that he did, in order to predicate error upon it. It is charged, upon oath, that the judge did so count this assessment as a part of the petition of the majority. The certiorari calls upon him to make return of all acts and decisions made by him, and his return entirely omits to state whether or not he did allow the said assessment, and the petition thereon, to be counted with such majority. The burden of showing want of jurisdiction is not with the relators, but by the party claiming" jurisdiction, to show it when called upon. It is not therefore with good grace that, upon such a return, the respondents should seek to cast this burden upon the relators. But, besides this, there is the evidence of Mr. Batehcller, in which he enu*489merates the names that were omitted, and this is not among the omissions. Another case is that of the Congregational church, whose name is upon the; assessment roll “ Congregational Society,” but who petitioned for the issue of these bonds by the name of the “ First Congregational Society,” |9400, which was signed by Doctor L. E. Whiting, Solon B. Bushnell and Levi S. Packard, under their corporate seal, and authorized by a resolution of the board of trustees. First. There was no legal or other proof before the county judge of the existence of such a corporation' as is represented by the assessment roll, tax list or signatures; and if there had been such evidence, there was no power in this board of trustees to create such a liability against the property of the corporation they represent. A religious corporation, created under the general statute, consists not of trustees alone, but of the whole members of the society. It is the society that is incorporated, not the trustees; and its members are the corporators. The trustees are only the managing agents or officers of the corporation,'in charge of the temporal affairs of the society, with powers specifically conferred by the statute; but with no other powers. They cannot alien, mortgage or incumber the estate of the corporation but by permission of the court, except to mortgage for debt, under certain circumstances. (Robertson v. Bullions, 11 N. Y. 243.) Their power’s being specified by the statute, this specification excludes all other powers; and to devastate and create liabilities is not among the specified powers. They neither proved to the judge their corporate existence, .nor any power to sign such a petition. The act. of 1869 confers no new power upon them., While it allows, representatives of taxable property to petition, it is to bé construed to mean legal representatives,- especially in an act which would divest individuals or corporations of their estates. The county judge was bound to exclude this petition upon the evidence produced before him. This was *490to the amount of $9400. Before the act of 1869, so would have stood the case at common law and statute. But it is claimed that there is an express provision in the act of 1869, that allows corporations to become petitioners. This' is true. It permits, however, only solvent corporations so to petition; and the burden of proving solvency.was with the petitioners. This was necessary to confer jurisdiction upon the judge. This was not done. In this case the judge, has presented to us. the proof, but its solvency was not proved.

Another petitioner was that of the Baptist church, representing $740, set forth on the petition, “ S. B. Terwilliger, W. Waterbury, Baptist church.” This authentication is still more defective than that of the Congregational church. The only evidence in this case is, that the two persons named signed the petition. It does not appear that they were even members or trustees of this church; much less, that they were authorized to sign a petition to incumber their property. . The same remarks apply to this case as to that of the Congregational church.

Another petitioner, whose name upon the assessment roll stands as follows: “Weibelzahl, Wm., Mrs. $460.” Upon the petition is the same name, with the addition at the end, “administratrix.” There is no other name on the tax list that resembles this, and the name, “ as administratrix,” added, is allowed to be a petitioner, with no proof that she is such administratrix; nor is. it easy to see how an administratrix can vote to incumber real estate, which generally belongs to the heirs at law.. To entitle her to petition, she must be a legal representative of the real estate assessed.

Another petitioner, whose name was on the assessment roll was “ The Bed Spring Company,” $560. The return does not show by whom this petition was signed; and there is the absence of all evidence that any body was authorized to sign for this company, as well as the want *491of evidence of solvency, in order to confer jurisdiction upon the judge.

There were several petitioners claiming to represent estates, viz., Simeon H. Barrett’s estate, $600; C. Buell’s estate, $600; Nelson Burnham estate, $360; Wm. Putnam estate, $1,000. There is no legal evidence in the ease that the persons signing the petition legally represented these estates, or had authority to sign the petition. The name of Elvira Putnam appears upon the tax list for $200. The petition is signed by her as administratrix, without evidence of authority, or rather with the presumptive legal evidence that she possessed no authority. Among the petitioners is “ Walter Barrett estate.” What amount of estate this petition represented, cannot be determined, as no such name is found on the assessment roll for 1869; but adjoining, and next to two names of Barrett, is “ Walter Balfour,” and there is no other name upon the roll so nearly resembling it. This name represents $1500. There is either no proof to make this petition good for any amount, or if it represents an estate, there is the additional defect of'proof of authority; or if it is a clerical error, meaning “Balfour,” then it is the representative of $1500. If it be neither of these, the name is not on the tax list. The burden was upon the party claiming jurisdiction.from it to show this, and to show how much he represented by his petition; it may have been received for a very large amount.

There also appeared upon the list of taxable estates the name of George S. Batcheller, guardian, $6666. In this case Mr. Batcheller, being sworn, proved himself to be guardian of the Cook estate, but did not offer any evidence of his authority to .incumber the estate of his ward or to commit devastation of it. He had no authority at common law, or by statute, unless the statute of 1869 can be stretched to authorize the estates of his ward to be thus divested, whi,ch, as we have already stated, is not the rule by which such statutes are to be construed. Had he ap*492plied to the court for permission so to incumber it, it would have been refused. The same remark will apply to the petition of “John C. Hulbert, guardian,” $2000; to which it may be added, that in the latter case there was no evidence of the existence of guardianship, nor of the name of the estate or persons for whom he was guardian. The name of D. B. Harrington was also included, who was a petitioner to the amount of $6000. This was also proved before the judge, and by the testimony of Mr. Batcheller. His petition was not excepted from the amount estimated as a part of the majority. The name of D. B. Harrington is not upon the assessment roll presented before us, nor any name that resembles it, representing any such sum.

The taxable value of the property of the town is, by the assessment roll, $2,318,170; one half of this is $1,159,085

The petitioners allowed by the county judge

seem to be............ 1,189,394

Making a majority upon the petitions of . . 30,304

The errors above pointed out, exclusive of the petition of Walter-Barrett, the amount of

which does not appear, is ...... . 30,586

Falling short of a majority ....... 177

But adding Walter Barrett, upon the assumption of a clerical error in his name .... 1,500

There is a failure of a majority by .... 1,677

If I am right in these views, we need not discuss the other questions in the case. It is a question of jurisdiction. Jurisdiction was questioned; the writ called upon the actors to show their authority; the strictest construction of the statute was demanded.

I think jurisdiction has not been shown, and that the proceedings should be set aside.

Order and judgment of the county judge affirmed, without costs to either party.

Miller, P. J., and Potter and Parker, Justices.]