Page:Federal Reporter, 1st Series, Volume 2.djvu/536

 WHITING V. TOWN OF POTTBR. 529 �only, had made an adjudication for the bonding of the town and appointed commissioners. Before the bonds were issued the town brought a suit against the commissioners and the railroad company to annul the adjudication of the county judge, and to restrain the issuing of the bonds. The special term and the general term of the supreme court gave judgment for the plaintifif. ïhe court of appeals held that the petition to the county judge was defective, and conferred no jurisdic- tion on the county judge to entertain the application or to make an adjudication, because it averred merely that a majority of the taxable property of the town, not including taxes for dogs and highways, was represented by the petition- ers, and did not aver that the petitioners were a majority of the tax payers, excluding those taxed for dogs or highways only, and that the petition might be true although the peti- tioners were less than a majority of the tax payers, excluding the classes of tax payers who were not qualified petitioners. There does not appear to have been anything in the affidavit of verification to obviate the defect pointed out. The court of appeals said : " We are not disposed to relax the ptringency of the rules we bave heretofore adopted, and, least of ail, in a case like the one before us, where bonds have not been issued, and the question presented is whether the preliminary pro- ceeding shall be consummated and a debt against the town created. �Assuming that this were a case of a direct proceeding to reverse or annul the adjudication of the county judge brought before the issuing of any bonds, and to be determined accord- ing to the rules laid down by the court of appeals of New York in the cases above cited, it must be held that the county judge acquired jurisdiction to entertain the proceeding and make adjudication. �The act of May 12, 1871, provides that the words "tax payer," when used in that act, shall include "the owner of any non- resident lands taxed as such," and shall not include "those taxed for dogs or highway tax only. " The statute provides that the application is to be made "by petition, verified by one of the petitioners, setting forth that the petitioners are �v.2,no.5— 34 ����