114 N.Y. 518 | NY | 1889
Lead Opinion
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By the bonding act of 1869 the defendant was transformed from a mere political division of the state, with limited corporate powers, into a municipal corporation with power to borrow money on an extensive scale and to invest it in the stock or bonds of such railroad company as a majority of its taxpayers, representing a majority of its taxable property, should designate. (Laws of 1869, chap. 907, p. 2303; Horn v. Town ofNew Lots,
We also think that the rule of pleading facts prescribed by *528
section 532 of the Code of Civil Procedure may with propriety be applied to the statement of facts required by section 1279; and that whatever is a sufficient statement of the facts, according to the former, to impliedly allege jurisdiction, is a sufficient statement of the fact, according to the latter, that jurisdiction existed. (Rockwell v. Merwin,
The same reasoning applies with equal force to the admission that the commissioners were duly appointed and commissioned. This means that they were appointed by due authority or by the authority of law. According to the statute, the county judge had no authority to appoint them until he had adjudged and determined, in the manner and upon the proofs required, whether a majority of the taxpayers and taxable property were in favor of bonding. (Laws of 1869, p. 2305, § 3.)
The persons appointed, therefore, became commissioners of the town de jure, empowered to represent and to act for the town. (Id.) They were authorized to execute and issue "the bonds of such municipal corporation" and to affix "the seal of such corporation" thereto (§ 4); "to subscribe (for railroad bonds or stock) in the name of the municipal corporation which they represent;" "to represent either in person or by proxy such municipal corporation at all meetings of the railroad bondholders or stockholders;" to "vote for directors on the stock of such town" (§ 5); to provide a sinking fund to pay the bonds of the town, and under certain circumstances to sell the railroad stock or bonds belonging to the town. (§ 6.) The acts of the commissioners, as to all matters within the scope of the authority conferred upon them by the statute, were the acts of the town. (Gould v. Town of Oneonta,
It was not necessary that merely executive acts, not involving *529
the exercise of discretion, should be done by the commissioners personally, but such acts might be done by another under their direction. (Mayor v. Sands,
The plaintiff, therefore, when he paid his money for the bonds in question, paid it to the town, and the town received it and invested it in railroad bonds, which it is presumed to still hold, and which, in the absence of proof to the contrary, are presumed to be of value. The defendant received all that it contracted for, but what did the plaintiff receive? The defendant contends that he received nothing of any value, because, as it claims, the bonds delivered to him by the commissioners or by their direction are void, inasmuch as they were made payable in twenty years, while the bonding act of 1869 (§ 4), only authorized the issue of bonds "payable at the expiration of thirty years from their date." On the 12th of May, 1871, an act was passed by the legislature amending section 4 of the bonding act "by adding at the end thereof," the following provision: "The said commissioners may issue the said bonds payable at any time they may elect less than thirty years, * * * but they shall not so issue the bonds that more than ten per cent of the principal of the whole amount of bonds issued shall become due or payable in any one year." (Laws of 1871, chap. 925, § 6, p. 2119.) The question now arises whether the bonds of the plaintiff were actually issued before or after May 12, 1871, the date when said amendment took effect. They bear the date of March 25, 1871, and are presumed to have been executed at that time; but executing is not issuing, for they might be fully executed but never issued. It is clear that the purchaser of a bond from the obligor named therein simply lends the latter money. (Coddington v.Gilbert,
The only other claim of the appellant that we deem it important to notice is, that the act of 1871 does not apply to bonds issued in pursuance of a consent of taxpayers given and adjudicated upon before that statute was passed, and that if the act can be construed as applying to such bonds, it is, to that extent, unconstitutional and void. In Syracuse Savings Bank v. Town ofSeneca Falls (
In Gould v. Town of Sterling (
The only authorities cited to sustain the position that the act of 1871 is unconstitutional are People v. Batchellor (
In the case under consideration the consents had been duly given and an adjudication duly made to that effect when the amendatory act was passed. There was no want of power, therefore, to issue bonds, as the conditions precedent had all been complied with. The amendment did not extend to matters of jurisdiction, "but to that which the legislature might have dispensed with the necessity of by the prior statute." The bonding act would not have conflicted with the Constitution if it had contained no provision as to when the bonds should be made payable, but had left that to the discretion of the commissioners. That provision, therefore, so far as the Constitution is concerned, was immaterial and could be modified, even retrospectively, at the discretion of the law-making power.
In Williams v. Town of Duanesburg (
Without examining any of the other grounds upon which we are urged to affirm the judgment appealed from, we think that it should be affirmed for the reasons already stated.
Concurrence Opinion
By the act of May 12, 1871, the commissioners were authorized to issue bonds, payable in twenty years, aggregating in amount $4,000. So much of the issue as was in excess of $4,000 was without authority of law and void. But the subsequent unauthorized action of the commissioners in issuing bonds of the town could not, and did not, invalidate or affect the bonds aggregating $4,000, for which act authorizations had been duly given.
The commissioners sold to this plaintiff bonds of the face value of $2,500, $1,500 less in amount than the authorized issue. It does not appear that after the passage of the act mentioned, and prior to the sale made to the plaintiff, the commissioners sold any other bonds. We are unable to say from the evidence before us that plaintiff's bonds were not issued to him before the limit of $4,000 was exceeded.
The plaintiff then seeks to recover upon bonds regular upon their face, and in an amount less than the issue permitted by statute. The defendant attacks their validity upon the ground, among others, that the commissioners exceeded their authority by issuing more bonds payable in twenty years than the statute permitted. The burden, therefore, rested upon the defendant to establish such defense. It was incumbent upon it to show that plaintiff's bonds did not constitute a portion of the authorized issue of $4,000. This it omitted to do, and, as a necessary consequence, failed to establish the defense interposed. *534
These views lead me to concur in the result arrived at by Judge VANN.
BRADLEY, J., concurs in the result on the ground that the bonds in question were issued after the act of May 12, 1871 (chap. 925), took effect, and that it may be presumed, nothing appearing to the contrary, that those bonds, at the time of their issue, did not make the amount issued, after such act took effect, exceed $4,000.
Dissenting Opinion
I dissent upon the ground that the taxpayers of the defendant never gave their consent to the issuing of bonds payable in twenty years. Such consent was essential to the validity of the instruments. The proceedings before the county judge, which terminated in the appointment of commissioners, were taken by authority of the act of the legislature of May 18, 1869, and authorized the issuing of bonds running for thirty years. The bonds in suit recite that they were issued by authority of that act. They bear date and were executed before the passage of the act of May 12, 1871. They are void upon their face. (Potter v.Town of Greenwich, 26 Hun, 326; affirmed,
The legislature had no power to authorize a loan by the town to the railroad company without its consent (People v.Batchellor,
For these reasons, I think, the judgment should be reversed.
All concur for affirmance, except BROWN, J., dissenting; POTTER, J., not sitting; BRADLEY and PARKER, JJ., concurring in result.
Judgment affirmed. *535