People ex rel. Haines v. Smith

Talcott, J. The writ of certiorari in this case brings before us proceedings instituted under chapter 907 of the Laws of 1869, and the act of 1870 (which subjects the county of Ontario to the provisions of the act of 1869), for the purpose of “bonding” the town of Phelps, in the county of Ontario, in behalf of the “ Sodus Point and Southern Railroad Company.” The act in question provides, that, where the petition, verified, &c., is presented to the county judge, he shall issue, and [295] cause to be published, a notice, stating that on the day specified he will proceed to take proof of the facts and circumstances set forth in the petition, as to the number of tax-payers joining in said petition, and the amount of taxable property represented by them. Section 2 of the act provides, that “ it shall be the duty of the said judge, at the time and place named in said notice, to take proof as to the said allegations in said petition; and if it shall appear satisfactorily that the said petitioners, or the said petitioners and such other taxpayers of said town as may then and there appear before him and express a desire to join as petitioners in said petition,” do represent a majority of the tax-payers of said municipal corporation, as shown by the last preceding tax list or assessment roll, and do represent a majority of the taxable property upon said list or roll, he shall so adjudge and determine, and cause the same to be entered of record; and such judgment and the record thereof shall have the same force and effect as other judgments and records in courts of record in this State.” This is a proceeding by which the private property of non-consenting tax-payers may be, in effect, pledged or mortgaged, indirectly, for what is assumed to be a public purpose. In all such cases the statute conferring the authority must be fully complied with. The proceeding before the county judge is mainly for the purpose of establishing the fact that a majority in number, who also represent a majority of the taxable property in the town, are in favor of the proposed issue of the town bonds. This fact is to be established by a judicial inquiry, and, upon its being established, the county judge is to render a judgment to that effect, the evidence as to who are the taxpayers of the town, and the amount of the taxable property in the town by them respectively represented, being the last preceding tax roll. The judge is required, before rendering his judgment, to take proof of the facts in question. This can mean nothing less than legal proof, which shall tend to establish the fact with a reasonable degree of certainty. It is the right of the non-consenting tax-payers to insist upon [296] this; and if the judge assumes to render a judgment purporting to establish the fact, without any legal proof, he is guilty of an error, of which the non-consenting tax-payers may justly complain, and which is undoubtedly reached by a writ of certiorari. The affidavit to be annexed to the petition is not the proof spoken of. The petition and verification are necessary in order to confer upon the county judge the jurisdiction to proceed to take the proofs. Sundry objections are made to the validity of the proofs which were taken by the county judge in the case, as disclosed by the return. It will only be necessary to consider one class of those objections. Sundry names, purported to be signed to the petition, with initials only representing the Christian names, and these were counted by the judge in his decision as representing the amount of taxable property assessed in the tax roll, to persons whose Christian names had corresponding initials, and whom he decided to be the same persons who had signed the petition; and other names signed to the petition, and varying in other respects from those on the tax roll, were held to be the same. The following examples will sufficiently illustrate this point: H. L. Cummings was held to be “ Hubbard L. Cummings,” who was assessed on the tax list for $1,171.50. Alexander Wormer, was held to be “ Alexander Yan "Wormer,” who was assessed on the tax list for $4,047.00. Sarah A. Reynolds, was held to be “Widow Sally Reynolds,” who was assessed on the tax list for $106.50. Mrs. M. M. Lovejoy, was held to be “Wid. Marietta Lovejoy,” assessed on the tax list for $159.75. R. R. Anderson, was held to be “Reid Anderson,” who was assessed on the tax list for $2,982.00. There were much more than enough of the names thus counted, if the amounts for which the persons who they were held to be identified with, on the tax roll, vrere assessed, had been deducted from the amount oí taxable property held to be represented, to reduce the amount of taxable property repre [297] sented greatly below a majority of the taxable property assessed on the tax roll. To sustain the judgment of the county judge it is necessary that these names should be counted. In fact, the number of names purporting to be signed in the petition with initials of Christian names only, and which were held to be identical with names on the tax roll, where the Christian name was written out in full, were more than sufficient, if the amount of property held to be represented by them is deducted, to reduce the amount represented considerably below a majority. It is not improbable that the county judge was, in point of fact, correct in his identification of the names on the petition with those on the tax roll. The question is, was it proved ? The personal knowledge of the county judge on this subject may have satisfied his own mind as to the identity of the names. He does not return any personal knowledge, and if he did it would be of no importance. He is not authorized to act on his own knowledge or prior information, but must take proofs. Doubtless it might have been proved that the names of the petitioners represented the persons on the tax roll with whom they were identified. The question is, was such proof given? It was not shown that the petitioners in question were tax-payers of the town. It was not shown that no other persons with corresponding surnames and initials resided in the town, or were tax-payers therein. The assessors were not called to state what persons they intended to designate by the name on the tax roll made out by them. In fact, none of the various descriptions of evidence bearing upon the question of the identity, in fact of the petitioners and the persons named on the tax roll, were resorted to. Hiram Peck testified, that the names of persons appearing on the petitions appeared as tax-payers on the tax list, with certain exceptions. This, as is evident from the context, was, and was understood to be, simply the result of a comparison of the petitions with the tax roll, and not a personal identification of the individuals named in the tax roll with those wrho had signed the [298] petition, and, at most, was a mere opinion of the witness, who is not shown to have any better qualifications for judging than any other person upon mere inspection and comparison of the petition and tax roll. The county, judge returns, as to “ the names of persons, whose names, it was claimed by counsel for contestants, varied from the names on the assessment roll,” he held them-6£ to be, prima facie, the same names as those appearing on the assessment roll aforesaid, in the absence of any proof as to the fact, except that which appears in the evidence above, and that furnished by the assessment roll, with the exception of the name of Sarah Lyons, who was identified as the person on the roll signed Widow Eleazer Lyons.” This statement, as appears, embraces all the initial names; and it is clear that the county judge held that the names signed to the petition with only initials for the Christian name were, as a matter of legal proof, prima facie identical with names on the roll with which the surname and the initial letters of the Christian name corresponded; and in so doing he has held the same initial letter to stand for a variety of Christian names, as the exigencies of the case required. The authorities are quite numerous to show that the county judge erred in thus holding, and that there is no legal presumption that J. Smith represents either John, James or Joseph Smith, without some further evidence than the identity of the initial letter. (People v. Ferguson, 8 Cow., 102; Jones' Estate, 27 Penn. St. R., 336; Tweedy v. Jarvis, 27 Conn., 42; Tellers v. The State, 7 Ind., 659; Rockwell v. The State, 12 Ohio, N. S., 427, &c.) The judgment rendered by the county judge in this matter must be reversed, upon the ground- that the fact that the petitioners represented a majority of the taxable property of the town of Phelps, purporting to be adjudged and determined by said judgment, was not proved before him. Judgment reversed.