People ex rel. White v. Hulbert , 59 Barb. 446 ( 1871 )

Parker, J.

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 construction 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 review, 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 taxpayers 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 testified 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 it 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 position 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. Such 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 proceeding. 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.