People ex rel. Averill v. Adirondack Co.

By the Gourt, Potter, J. It is clear, from the petition, from the entitling of the proceeding, and from the return made to the certiorari by the county judge, that the whole proceedings in this case were based upon the theory that the Adirondack Company were authorized to construct a railroad through the county of St. Lawrence; and that the $200,000 of bonds to be created and issued, and' the' investment of the proceeds thereof, was to be in the stock of. such railroad corporation. It is equally clear that the said railroad company possessed no power or authority to construct their road, or any part of it, in said county. True, the statutes had given them the right to obtain such power, upon their compliance with the required conditions; and so any other body of organized citizens, under the general authority of statutes, had power to do the same thing, but no one, neither the Adirondack Company, nor any other corporation or association, had as yet, at the time of the proceeding in question, availed themselves of this privilege so allowed by law. Though the city of Ogdensburgh was a municipal corporation of the county of St. Lawrence, and though the Adirondack Company was a railroad company, yet there was no such railroad company in existence as enabled the city of Ogdensburgh to invest the $200,000 in bonds, so directed to be issued by the petitioners and by the order of the county judge. There was no railroad corporation of the State, authorized to construct a railroad “ from the river St. Lawrence at the city of Ogdensburgh to Saratoga Springs, in the county of Saratoga,” upon which the avails of the bonds applied for and directed to be issued, could be used in its construction within said county of St. Lawrence. The petitioners limited their request as to the application of the money, [661] and the order of the judge limitéd it accordingly; and that limit was to a nonentity. There must be a corporation capable of receiving the aid in the mariner offered, as well as a corporation to bestow the aid. The only railroad company in existence bearing the ñame of that which was proposed to be aided, was the Adirondack Company, ' and this was limited in its dimensions and termination, to the counties of Saratoga, Warren, Essex, Hamilton and Washington; neither of which counties touch or adjoin the county of St. Lawrence. Under the order of the county judge, the commissioners appointed had no power to issue the bonds, and the Adirondack Company had no power to. make a contract to apply the proceeds of these bonds in the county of St. Lawrence. The whole proceeding is ultra vires, on the part of the municipality of the city of Ogdensburgh, as well as on the part of the Adirondack Company. Neither party is in condition now, and perhaps never will be; neither has the present power to carry out the proposed entérprise, and perhaps never will have. It may be that the Adirondack Company will never amend their articles of association, or extend their line into the county of St. Lawrence; and it may be that if extended by an amended charter, its provisions would be such that the tax-payers of the municipality of the city of Ogdensburgh would refuse to give it their aid. Worse, in effect, as to the power to act, between these two parties is this case, than the contract of two infants, which would be only voidable at their option, upon their coming of age; in this case the parties to make the contract are not yet begotten, and the proceeding, therefore, is absolutely void for want of parties to make it. I think the order of the county judge was void, also, in that it was based upon a petition that was conditional and ' not absolute. (Butternuts and Oxford Turnpike Co. v. North, 1 Hill, 518. Fort Edward and Fort Miller Plank Road Co. v. Payne, 15 N. Y. Rep. 583. Troy and Boston Railroad [662] Co. v. Tibbits, 18 Barb. 297.) It was conditioned that the avails be used exclusively in the construction of said railroad within said epunty of St. Lawrence; and in a county in which the railroad company named had no right to construct a road. [Third Department, General Term, at Ogdensburgh, November 1, 1870. I have regarded this as the leading and substantial point in the case; and if we are right in this view, the questions arising as to the practice, and other questions' strictly technical, need not be discussed. I have not regarded them as possessing much merit, if jurisdisdiction was obtained by the county judge. With no disposition to throw obstacles in the way of enterprises that are intended to aid and facilitate the great system of oúr internal commerce, to add to the progress of civilization, and to increase the prosperity of secluded portions of the State, we are1 still bound to declare the intent and effect of the statutes intended to promote those objects, and in all cases where the individual property of the citizen is taken, without his consent, to see to it, that a strict "construction of the statute, which divests him of his estate, shall be observed. If we are right in our view of the case, the order of the county judge should be reversed, without costs. Order reversed. Miller, P. J., and Potter and Parker, Justices.]