Where a majority of the tax-payers of a town are anthorized by statute to incumber the property of all, in aid of a railroad or other corporation, the record must show that the statutory authority has been pursued. Cowdrey v. Town of Caneadea, 16 Fed. Rep. 532, and cases cited. Section 1 of chapter 907 of the Laws of New York of 1869 (volume 2, p. 2303) was as follows: 'Whenever a majority of the tax-payers 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 by one of the petitioners, setting forth that they are such a majority of tax-payers, and reresent such a majority of taxable property, and that they desire that such municipal corporation shall create and issue its bonds to an amount named in such petition,' etc. That section was so amended by section 1 of chapter 925 of the Laws of New York of 1871 (volume 2, p. 2115) as to read: 'Whenever a majority of the tax-payers of any municipal corporation in this state who are taxed or assessed for property, not including those taxed for dogs or highway tax only, upon the last preceding assessment roll or tax-list of said corporation, and who are assessed or taxed, or represent a majority of the taxable property, upon said last assessment roll or taxlist, shall make application to the county judge of the county in which such municipal corporation is situate, by petition, verified by one of the petitioners, setting forth that they are such majority of tax-payers, and are taxed or assessed for or represent such a majority of taxable property, and that they desire * * *. The words 'municipal corporation,' when used in this act, shall be construed to mean any city, town, or incorporated village in this state, and the word 'tax-payer' shall mean any corporation or person assessed or taxed for property, either individually, or as agent, trustee, guardian, executor, or administrator, or who shall have been intended to have been thus taxed, and shall have paid or are liable to pay the tax as hereinbefore provided, or the owner of any non-resident lands taxed as such, not including those taxed for dogs or highway tax only; and the words 'tax-list or assessment roll,' when used in this act, shall mean the tax-list or assessment roll of said municipal corporation last completed before the first presentation of such petition to the judge.'
The bonds in controversy expressly recite that they are issued under the act of 1869, and the petition and adjudication almost literally followed the language of that act, although section 1 of chapter 925 of the Laws of 1871 had been substituted for section 1 of chapter 907 of the act of 1869, before the proceeding was had. The result is that the petition did not sufficiently conform to the statute of 1871 to call for the exercise of judicial judgment on the part of the county judge, and the adjudication was equally defective. The act of 1871 defined the class of persons who were authorized to petition, as a majority of the tax-payers, 'who are taxed or assessed for property, not including those taxed for dogs or highway tax only, upon the last preceding assessment roll or tax-list of said corporation, and who are assessed or taxed or represent a majority of the taxable property upon said last assessment roll or tax-list.' The statement of the jurisdictional facts in the petition required the averment that the petitioners were a majority of such tax-payers as were defined in the act. This must appear affirmatively on the face or the petition. The act expressly provides that the petition shall set forth that the petitioners are 'shall majority of tax-payers, and are taxed or assessed for or represent such majority of taxable property.' The word 'tax-payers' would not exclude those 'taxed for dogs or highway tax only,' and the petition must show that the petitioners are a majority, exclusive of the latter class. And this the petition here does not do, nor does the judgment of the county judge. It is provided by the act of 1871, as it had been by that of 1869, that it shall be the duty of the county judge, at the time and place named in the notice given as prescribed, to proceed and take proof as to the allegations in said petition, and if it shall appear satisfactorily to him that the petitioners, and such other tax-payers as may then join in the application, do represent a majority of the tax-payers and a majority of the taxable property, he shall render judgment accordingly, which, being etered of record in the office of the clerk of the county, shall have the same force and effect as other judgments in courts of record in the state, subject to review by certiorari; and it is forcibly argued that the judgment of the county judge is not open to collateral attack. But this assumes that the jurisdiction of the county judge has been properly invoked, and has no application where that is not the case. Proof as to the allegations of this petition may have been taken, but such proof did not necessarily involve an inquiry into whether a part of the petitioning tax-payers were such because of the payment of highway taxes or taxes on dogs, and, as we have said, the judgment does not in terms show that such were not included. So that, if the county judge had been charged with the ascertainment of the jurisdictional facts, the proceedings do not show that those facts were ascertained.
The fourth section of the act of 1871 contains, among other things, this provision: 'On review, persons taxed for dogs or highway tax only shall not be counted as tax-payers, unless that claim was made before the county judge.' If this means, as counsel for plaintiff in error insists, that the objection when urged on review shall not prevail unless it had been taken before the county judge, it does not weaken, but confirms, the view that the verified petition must state that those who sign it are not tax-payers on dogs, and for highways merely. The circuit judge, in his opinion in this case, correctly observes: 'It is insisted that, because the amended act of 1871 defines the term 'tax-payer,' 'when used in this act,' to mean such tax-payers as are not assessed for dogs or highway tax only, it is not necessary to comply with the explicit language of the act as to the form and substance of the petition. The petition is the basis and ground-work of the whole bonding proceeding. When the amended act was passed, many of these proceedings had been set asider by the courts of this state because of defects of form in the petition; and it was the well-settled law of the state courts that any such defect was jurisdictional, and rendered the whole proceeding futile. Speaking of the act of 1869, the court of appeals said in People v. Smith, 45 N. Y. 772: 'The authority conferred by the act must be exercised in strict conformity to, and by a rigid compliance with, the letter and spirit of the statute.' The first section of the amended act provides, in language as explicit as could be employed, that the petition, verified by one of the petitioners, shall set forth that the petitioners are a majority of tax-payers of the town who are taxed or assessed for property, 'not including those taxed for dogs or highway tax only.' It subsequently provides thatt he word 'tax-payer,' 'when used in this act,' shall mean 'any corporation or person assessed or taxed for property, * * * not including those taxed for dogs or highway tax only.' Section 2 makes it the duty of the county judge 'to proceed and take proof as to the said allegations in the petition;' and, if he finds that the requisite majority of tax-payers have consented, he shall so adjudge. It there were no express provision requiring it to appear in the petition that the tax-payers who apply are a majority of the designated class, the petition would doubtless be sufficient if it alleged that they were a majority of the tax-payers of the town; and, in this view, there was no need of amending the act of 1869 in this behalf. If the argument for the plaintiff is sound, this explicit provision is meaningless. It is not to be assumed that the legislature did not mean anything by the language which they so carefully employed. It is not difficult to apprehend what the legislature meant by defining the word 'tax-payer.' It occurs several times in the act. It was defined for convenience, in order to avoid repetition of description whenever the word was used in the act, and in order that there should be no room for doubt what kind of a tax-payer was meant whenever the word was used.'
These views are in accordance with repeated adjudications of the court of appeals of the state of New York in construing this statute; and upon questions of this character, when arising as here, the decisions of the highest judicial tribunal of a state are entitled to great and ordinarily decisive weight. Meriwether v. Muhlenburg County Court, 120 U.S. 354, 357, 7 Sup. Ct. Rep. 563; Claiborne Co. v. Brooks, 111 U.S. 400, 410, 4 Sup. Ct. Rep. 489. In Town of Mentz v. Cook, 108 N. Y. 504, 509, 15 N. E. Rep. 541, the court says: 'The petition was presented after the amendment of 1871 to the act of 1869, and was defective in not averring that the petitioners were a majority of the tax-payers of the town of Mentz, excluding those taxed for dogs or highway tax only. The fatal character of the defect has been so adjudged in this court as to end further discussion. Green v. Smith, 55 N. Y. 135; Town of Wellsborough v. Railroad Co., 76 N. Y. 182; Metzger v. Railroad Co., 79 N. Y. 171. Our attention has heretofore been drawn (Hills v. Bank, 101 N. Y. 490, 5 N. E. Rep. 327) to the definition of the word 'tax-payers,' given in section 1 of the act of 1871, and to the fact that such definition and its effect had never been directly passed upon by this court. The argument advanced is that the word 'tax-payers,' as used in the act, is declared to mean 'tax-payers exclusive of those taxed for does or highway tax only,' and that it is illogical to deny to the word when used in the petition under the act, the meaning ascribed to it by the act itself. The suggestion is by no means conclusive, and admits of a satisfactory answer. The definition was given to avoid useless repetition, and is confined to its use in the act itself. The petition is required to be verified, and to show on its face the consent of the requisite majority, and is not satisfied by an ambiguous oath, true in one sense and not true in another.' As on the face of these proceedings there was an entire want of power to issue the bonds, no reference to the doctrine of estoppel need be made. We answer the first and third questions in the negative, and the second and fourth in affirmative.
The judgment is affirmed.
Notes edit
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