Page:Federal Reporter, 1st Series, Volume 2.djvu/534

 WHITING V. TOWN OF POTTHB. 627 �judge hath hereunto set his hand, this twenty-sixth day of September, 1871. William S. Briggs, Yates County Judge." �It is contended for the defendant that the petition to the county judge was not drawn in conformity with the statute, and, therefore, did not confer jurisdiotion upon him to enter- tain the proceeding or to render any judgment therein; that the proceeding was commenced after the act of May 12, 1871, took effect; that the petition was drawn aecording to the act of 1869, as originally passed, and not aecording to that act as amended by the act of May 12, 1871 ; that the petition does not exclude persons taxed for dogs and highway tax only; that it does not inolude the owners of non-resident lands, taxed as such ; that ail that the petitioners assert in the petition is that they are a majority of the tax payera whose names ap- pear upon the tax list or assessment roU ; that such assertion included persons taxed for dogs and highway tax only, but does not include the owners of non-resident lands, taxed as such; that the petitioners do not assert that they are a majority of the tax payera "who are taxed or assessed for property, not including those taxed for dogs or highway tax only," as required by the act of May 12, 1871; that the petitioners might be a majority of the tax payers of the town, including those taxed for dogs, and they might own or repre- sent a majority of the taxable property appearing on the tax list, and y et not be a majority of the tax payers who are assessed or taxed for property, not including those taxed for dogs or highway tax only; and that the language of the petition is not equivalent to the language of the statute. �In The People v. Spencer, 65 N. Y. 1, the court of appeals of New York held, under the act of 1869, as amended by the act of May 12, 1871, that where the petition to the county judge did not show that the railroad company, in aid of whioh the bonds weie to be issued, was a railroad company "in this state," the county judge had no jurisdiction to entertain the proceeding. That point was taken before the county judge, but he overruled it, and made an adjudication directing the bonding of the town, and his judgment was affirmed by the general term of the supreme court, on certiorari. On appeal, ����