People ex rel. Boardman v. Town of Linden

Beatty, C. J. By virtue of certain proceedings under the general law providing for the organization, incorporation, and government of municipal corporations (Stats. of 1883, p. 93), the defendant is assuming and claiming to be a municipal corporation of the sixth class, and this action was brought for the purpose of determining its right to hold and enjoy the franchise, and to exercise the powers of such a corporation. The plaintiff claimed that, by reason of the failure of the board of supervisors to comply with the statute, no organization was ever effected. The defendant claimed that there had been a substantial and sufficient compliance with the law on the part of the board, and of all parties concerned. A trial was held in the superior court, and judgment given in favor of the defendant affirming the validity of its incorporation. Plaintiffs appeal from the judgment and from an order overruling their motion for a new trial. In support of their appeal they specify various particulars in which, as they claim, the proceedings looking to the incorporation of the defendant fell short of the statutory requirements. There seems to be no difference between counsel as to the proposition that a substantial compliance with the statute is sufficient, but it is contended that positive and [98] important provisions of the law have in this instance been violated or ignored. Most, if not all, of the questions to be decided depend for their solution upon the proper construction of section 2 of the act above cited, as amended in 1889 (Stats. 1889, p. 371). 1. It is therein provided, amongst other things, that a petition describing the territory to be incorporated, and signed by at least fifty qualified electors of the county, resident within the limits of said territory, shall be presented to the board of supervisors after two weeks’ notice by publication of the time when it will be presented. Appellant claims that such petition must be presented to the board in the first place before publication of notice, and must be .thereafter published with the notice, affidavit, etc., by order and under the official sanction of the board, for the requisite time before it is presented to the board for its further action. We think, however, that a proper construction of the statute warrants the course pursued by the petitioners in this instance, who themselves caused the publication of the petition, affidavit, and notice of the time when the petition wras presented to the board. 2. It is provided in the same section that “ the affidavit of three qualified electors residing within the proposed limits, filed with the petition, shall be prima facie evidence of the requisite number of signatures” (to the petition). The affidavit filed with this petition was radically defective. It merely showed that the names attached to the petition were names of qualified electors resident within the limits of the proposed corporation. It did not show that their signatures were genuine, and there never was any evidence of the genuineness of such signatures offered before the board or on the trial of this action before the court. The board never found or declared that such petition had been in fact signed by fifty qualified petitioners, and there was no evidence to sustain such a finding by the court. [99] In. this respect we think there was a failure in a substantial particular to comply with the statute. It is of the very essence of the proceeding, and absolutely essential to the jurisdiction of the board to make the order declaring the establishment of the incorporation, that a proper petition signed by the requisite number of qualified petitioners should be laid before them. This, of course, involves proof of the genuineness of the signatures attached to the petition, no less than the citizenship and residence of the persons whose names are attached. And the statute prescribes what that proof shall consist of—at least in part—viz., an affidavit of three qualified petitioners filed with the petition. This affidavit, it is true, is only made by the statute prima facie evidence of the requisite number of signatures. But we do not construe this to mean, as counsel for respondent contends, that it may be entirely dispensed with and other evidence substituted. It only means that the affidavit, if uncontradicted, is sufficient proof. If it is contradicted, no doubt it may be supported by additional testimony, but that such an affidavit should accompany the petition we think clear. And even if we were to concede, which we do only for the argument, that the absence of a proper affidavit might be supplied by other competent evidence of the genuineness of the signatures of a sufficient number of qualified petitioners, the case shows that in this instance there was no other evidence, and there was no finding or declaration of the fact. 3. There was no loss of jurisdiction by the board (if they had ever acquired jurisdiction) by the adjournments of the hearing from time to time, merely because in the orders of adjournment the hour of the day for resuming the hearing was not specified. 4. If the order of the board establishing boundaries and providing for a submission of the question of incorporation to the people had been otherwise valid it was not invalidated by the failure to publish it as an ordinance. [100] Such orders are not ordinances governed as to their enactment by the provisions of the County Government Act, but are orders to be entered on the minutes of the board in accordance with the provisions of the statute regulating this particular proceeding. 5. The board of supervisors did not make any direction as to the manner or time of giving notice of the election in this case, but merely resolved that notice be given, leaving it to their clerk to determine what the notice should be. The clerk caused a notice to be posted for fifteen days, in which was contained an ambiguous description of the boundaries of the proposed corporation. This was not a substantial compliance with the statute. The manner of giving notice, whether by publication in a newspaper or by posting, and the length of time that the notice is to be published or posted, are matters committed to the discretion of the board, and cannot be delegated to the discretion of the clerk. In this case the proposed incorporation was of a territory eight miles long and six miles wide, embracing one small village and a wide extent of farming country. The notice of election was posted under the direction of the clerk in five places. This seems scarcely reasonable or sufficient, but whether or not it was sufficient to give actual notice to the voters and to elicit a full vote is immaterial. The board and not their clerk must determine what notice shall be given. As to the error in the description of boundaries, it was to some extent ambiguous by reason of the call for the southwest corner of section 30, instead of the northwest corner, but the other calls show conclusively that the northwestern corner was meant. The beginning point in the description is the southwest corner of township 2 north, range 8 east; running thence six miles to the southeast corner of township; thence north eight miles to north line of Douglas township; thence west six miles to southwest corner of section 30, township 3 north, range 8 east, being the northwest corner [101] of Douglas township; thence south eight miles to the point of beginning. It was shown that the northwest corner of Douglas township was identical with the northwest corner of section 30, and the other calls, viz., a course west from the northeast corner to the northwest corner of the proposed incorporation, and a distance of eight miles from the northwest corner to the southwest corner sufficiently demonstrated what corner of the section was meant. 6. No certified copy of the order of the board of supervisors declaring the defendant duly incorporated had been filed in the office of the secretary of state when this action was commenced, or, so far as appears, when it was tried. The filing of such copy is, in our opinion, essential to the completion of the incorporation; until it is filed there is no corporation. The last-mentioned defect in the proceedings is shown by the pleadings and findings, and is a ground for reversing the judgment on the appeal from the judgment. The other defects, viz., insufficiency of the affidavit as to signatures to petition, and failure of the board to exercise its discretion as to notice of the election, appear only from the statement on motion for new trial. As the failure to file a certified copy of the order with the secretary of state may have been, or may still be, remedied, it is proper to remand the cause for further proceedings, with a view to which we have passed upon all the points likely to arise on another trial. The judgment and order appealed from are reversed and the cause remanded. McFarland, J., Van Fleet, J., Garoutte, J., and Harrison, J., concurred.