In re Tax payers

38 How. Pr. 515 | N.Y. Sup. Ct. | 1870

Perkins, J.

“ The company was organized under the general plank road law, some time after the Johnsons had subscribed and after numerous other persons had subscribed, but before the organization of the corporation; the Johnsons without the consent of the other subscribers, with a penknife, so defaced their subscription as to render it partly illegible, but not to such an extent but that it could, though with difficulty, be read, and they did this with the intention of withdrawing the subscription. The remaining subscribers subsequently effected a legal corporate organization, and that organization sues the Johnsons upon their mutilated subscription.”

“The erasure of the subscription did not per se prevent a suit upon it. (Ind. Rig. §§ 86, 166 pp. 204, 216.) Explanatory parol evidence was admissible. (Hatch agt. Dickinson, 7 Blackf. 48.)

“ The title of the act under which the company was organized, is “ an act authorizing the construction of plank, McAdamized and gravel roads.” Such roads in this state we know historically have almost uniformly been constructed by corporate associations; they have been the agents for the construction, and we think provisions furnishing legal and usual instrumentalities to accomplish a legal object may be properly connected with that object considered as a subject of legislation, (1 R. S. 394.) The main point in this case is whether the Johnsons could withdraw their subscription, the other subscribers not consenting, and we think they could not. The point has been directly decided in Lake Ontairio, &c., Railroad Company agt. Mason, 16 N. Y. Court of App. 451. We follow that decision.”

That decision arose upon a subscription of stock made before the incorporation of a railroad company, wherein it was held that the subscription was obligatory although no cash payment whatever was made, and that the right to membership is a sufficient consideration for the subscriber’s liability, and he cannot revoke his subscription.

The opinion of the court of appeals by Brown J., was as follows:

u The subscription of the defendant to the articles of association was in effect a contract to pay for and accept the twenty shares of stock. The advantages derived from being a member of such a company and of the consequent right to participate in the pecuniary dividends is a positive benefit, and where the agreement secures that advantage to the subscriber on the organization of the company, the objection of a want of consideration cannot be made with success.” (The Hamilton and Deanesville Plank Road Co. agt. Rice, 7 Barb. S. C. R. 157; Stanton agt. Wilson, 2 Hill 153; Barker agt. Bucklin, 2 Denio 45; The Schenectady and Saratoga Plank Road Co., agt. Thatcher, 1 Kern. 102; Barnes agt. Perine, 2 id. 18.) If the contract to pay for and take the stock was a valid contract made upon a sufficient consideration, then his subscription was not open to revocation. Until the incorporation of the company was perfected the other subscribers had an interest in its execution, and performance of which they could not be deprived by the act of the defendant.”

In the case of Mason agt. Westover and others, and another case before Mr. Justice Gould, in 1859, the question now to be determined was then adjudged, where the court had unadvisedly issued an injunction, the court said :

“ I am further entirely unable to see that any person who had once signed his name to a written consent, unconditionally, was by either law allowed to change his action or in any way retract it. The law presumed he would not write his consent unless he meant that he consented, and it made no provision for his changing his mind, whether within one day or one year.

I am constrained to say that I granted these injunctions unadvisedly, without having, in the then pressing emergency, time for examining the cases, and that they must be dissolved,”

The court of appeals in the recent case of The People agt. Mitchell (35 N. Y. 555) opinon by Porter J., regarded the consent of the tax-payers to the subscription for stock and the issue of town bonds to aid a public enterprize in which the subscribers were deeply concerned, and in which the community in which they resided were interested, as a a ready and convenient form of talcing a popular vote.”

In Connecticut in the supreme court of errors, in the Society for Savings agt. City of New London, (20 Conn. 174,) where bonds were issued by a city to be loaned to a railroad company, it was held that the acquiescence of the city of New London in voting to issue the bonds was a valid act, and could not be repudiated. The court by Ellsworth, J. say:

li We must believe that after such acquiescence it would be an outrage upon morality and justice, and an impeachment of the integrity of the citizens of New London, to allow the city to repudiate its obligations. Many of the citizens we well know disapprove of and condemn such a repudiation, and we trust all of them would do so were it a simple transaction between man and man, where the culpability could not be thrown off upon a municipal corporation. But it is this very circumstance which enhances the impropriety of the act of repudiation, for the integrity of a public body is its principle virtue. To violate or impair this, is to undermine government itself, and to destroy the very institutions of the civil state. Such repudiation cannot receive the countenance of this court of justice.”

The constitution of the United States was regarded as a new experiment in the history of nations. Its framers made use of the best lights to form and adjust its parts and mould its materials, and if they could not pronounce it perfect, they provided for amendments, providing that two thirds of congress or of the legislatures of the states, concur in proposing or requiring amendments to be proposed, and three fourths of the states must ratify them. Several amendments have been proposed and adopted. Whenever a state votes by its legislature for an amendment, that amendment to use the word of the constitution is ratified by the legislature, and when so confirmed, the vote can never be withdrawn. Story in his commentaries on the constitution, vol., 3 § 1824, says: “Time is thus allowed and ample time for deliberation both in proposing and ratifying amendments. Indeed, years may elapse before a deliberate judgment may be passed upon them.”

It would therefore seem that whenever a vote is cast by an individual, municipality, or a legislature, by ballot, resolution or petition, that vote is irrevokable.

III. The county judge had jurisdiction of the subject matter, and his judgment determining the qustion at issue, has. by the act itself the same force and effect as other judgments in courts of record. The county judge was fit and competent to determine, and did determine that a majority of the tax payers of the last assessment list, representing a majority of the taxable property, did petition for the bonding of the town. Jurisdiction of the subject matter on the part of the county judge was made to depend npon the petition, and the petitioners finally appearing before him. The county judge gave many days of patient attention and labor, to determine the question presented for his decision, and his able and well considered opinion proved that he was a wise depository of the trust confided to him. In that judgment there should be perfect acquiescence.

IV. Any further litigation of this question would be worse than useless. The certiorari therefore should not be allowed. In the case of Brown and Fitch agt. Wesson and Wesson, (1 How. Sp. Term, 141,) a certiorari was allowed upon a mistaken statement of the facts. On motion to quash the same, founded upon affidavits which stated the real facts, the court by Bronson, C. J., granted the same, saying it would be worse than useless to go on with the litigation.”

By the court,

Boardman, J.

Upon the hearing of this matter upon the return of the order to show cause why a writ of certiorari should not issue to the county judge of Chenango county, to bring up proceedings had before him in determining whether a majority of the tax payers, and of the taxable property of said town had consented to the issuing of said bonds, the writ of certiorari is denied.

This denial is based upon the admitted fact that such majorities had consented prior to the adjudication of said county judge, if I should hold that a consent once given could not be withdrawn. The authorities are too clear to leave a doubt in my mind, that such consent, once given, with knowledge of the facts, cannot be withdrawn at the mere will of the person giving his consent. The motion is therefore denied without costs.