45 Barb. 208 | N.Y. Sup. Ct. | 1865
The motion for a mandamus in the case at bar was resisted mainly upon the ground that the consent of the 'tax payers to the issuing of bonds was upon the condition that $1,000,000 of town subscriptions to the stock should be taken, before the commissioners were authorized to subscribe, and that this condition has not been complied with.
The fact alleged only appears from the opposing affidavits, and is not in the proof of consent filed, and can only be made available by going behind the affidavits filed by the commissioners.
I am inclined to think that this can not be done, and that it is not material on this motion whether the condition alleged was originally inserted in the consent, or whether that condition has been complied with.
The statute (Laws of 1864, ch. 402, §1, p. 911,) provides that where affidavits of the consent of the tax payers shall have been filed as required, “such affidavits shall be valid and conclusive proof in all courts and for all purposes, to authorize and uphold the respective subscriptions to the stock; and the issue of bonds specified in such proof, for such town respectively, and no clerical or other defect in any of such affidavits shall invalidate such proofs, or the subscription to the stock, or the said bonds.”
If this law is valid and operative, then it is entirely decisive of the question under consideration. It is objected to upon the ground that it interferes with certain vested rights of the tax payers in violation of the first subdivision of the tenth section of the constitution of the United States, which provides that “no state shall pass any ecc post facto law, or law impairing the obligations of contracts.”
I am entirely satisfied that no vested rights were acquired ' by the consent signed, and that the conditional consent alleged to have been given, did not constitute a contract1 that the bonds should only be issued upon the terms named, so as to prevent any further action of the legislature Upon the subject.
The legislature has an undoubted right, to determine what
If the legislature had a right to pass the act authorizing the bonds to be issued, as is not doubted, then under the authorities cited it had the power to make it the' duty of the town officers to issue the bonds without requiring the consent of a portion of the tax payers. Such a power existing originally, I think the condition requiring the consent to be given was merely a restraint upon the exercise of the power conferred, which could be removed, and the failure fo procure the consent of the tax payers would not impair or control the power of the legislature to make the act absolute and imperative. They would have a right to modify or change the act. To say that the consent of the tax payers was not essential to its validity or effect, and such change or modification would interfere with no contract, nor would it affect any vested rights. The act authorized the tax payers to determine whether the bonds should be issued, and conferred upon them certain authority usually vested in the legislature, and the legislature had full power and authority to say that the bonds should be issued and be valid and effectual although the tax payers $id not consent, (13 N. Y. Rep. 143.)
It may also be. observed, in this connection, that the act of 1864 did not interfere with the consent of the tax payers,, or their consent filed with the clerk. It merely affected the remedy, without changing their contract. It simply established a rule of evidence as to" the effect of the affidavits filed. This was within the scope of the powers of the legislature, and does not affect a contract. (Stocking v. Minot, 3 Denio, 274. Neass v. Mercer, 15 Barb. 318. Hand v. Buller, 2 Kern. 541.)
The observations made as to the effect of an act of the legislature altering one already made, in no way touches the question as to the right of parties who have been injured by the alteration of a written instrument affecting their rights seeking redress through a legitimate and proper channel. This is another and a different question, bearing upon the case now presented, to some extent at least, and entitled to consideration.
The act of 1864 makes the affidavits proof of the consent, and thereby establishes a rule of evidence as to their effect, without, in any way, interfering with any supposed rights of a party to pursue the proper remedy to test their validity and force. That act contains no provisions which interpose obstacles to an application to the proper authority to strike from the files an instrument which was not signed by the .parties, or which has become nugatory by reason of material alterations madé since it was executed; nor does it in any way prevent "an action for that purpose, or to alter or reform the instrument itself. The effect of the enactment was to declare, simply," that the affidavits filed, so long as they remained upon the record, should" be final and concl-u
.It is said that the statute authorized only an absolute'subscription, and that these affidavits show only a conditional one. I think that the condition attached to the consent of the tax payers, authorizing a subscription, does not attach as a condition to the subscription to be made. The consent merely imposed terms upon the subscription to be made, without affixing any qualification to it. It authorized the commissioners to subscribe upon'the happening of a certain contingency, but the subscription itself was to be absolute and unqualified. They only had power to act when a certain amount had been subscribed by others, which was merely establishing the time when they should perform the act, without imposing any limitation upon it. This clearly would not be a conditional subscription, but an absolute one.
The discussion already had, covers all the objections urged, •and as the relators have made" out a case for a peremptory mandamus the order appealed from must be affirmed, with costs of appeal.
Ingalls, J. concurred.
Hogeboom, J. was for a modification of the order, and an alternative mandamus.
Order affirmed.
Hogeboom, Miller and Ingalls, Justices.]
