Rich v. Town of Mentz

This is an action brought by George L. Rich in the circuit court of the United States for the northern district of New York against the town of Mentz, to recover the amount of 60 interest coupons attached to certain bonds held by him, and alleged to have been issued by the town on July 15, 1872, in aid of the Cayuga Northern Railroad Company. The cause was tried by the circuit and district judges, a jury being duly waived, and the court made its special findings as follws:

'(1) On the 18th day of July, 1872, there was filed in the clerk's office of the county of Cayuga, N. Y., the judgment of the county judge of said county, with the petition of certain tax-payers, of which the following are copies:

"County of Cayuga, N. Y. In the Matter of the Application of the Tax-Payers of the Town of Mentz, Cayuga County, N. Y. Petition. To the honoral e the county judge of the county of Cayuga, N. Y.: The petition of the subscribers hereto respectfully shows that they are a majority of the tax-payers of the town of Mentz, in the county of Cayuga, and state of New York, whose names appear upon the last preceding assessment roll or tax-list of said town of Mentz, as owning or representing a majority of the taxable property in the corporate limits of the said town of Mentz; that they are such a majority of tax-payers, and are taxed or assessed for, or represent, such a majority of taxable property; that they desire that said town shall create and issue its bonds to the amount of thirty thousand dollars, ($30,000,) which said amount does not exceed twenty per centum of the whole amount of taxable property, as shown by said assessment roll or list, and invest the same, or the proceeds thereof, in the stock of the Cayuga Northern Railroad Company, which is a railroad company in the state of New Yourk. And your petitioners pray your honor to cause to be published the proper notice, to take proof of the facts set forth in this petition, and that such proceedings may be had thereon as are authorized and prescribed by the statutes of the state of New York in such case made and provided.

"Dated April 20, A. D. 1872.

"[Signed by] A. M. GREEN, and 224 other names, and verified by Green on the 28th day of May, 1872.

"(Then follows the usual affidavit of the printers of said newspaper, showing due publication of the notice of hearing.)

"County of Cayuga, N. Y. In the Matter of the Application of the Tax-Payers of the Town of Mentz, Cayuga County, N. Y. Order of County Judge. On the petition herein bearing date the 20th day of April, A. D. 1872, and on motion of H. V. Howland, attorney for said petitioners, it is ordered that a notice be forthwith published in the Auburn Daily Advertiser, a newspaper published in the said county of Cayuga, directed to whom it may concern, and setting forth that on the 8th day of June, A. D. 1872, at 10 o'clock in the forenoon of that day, I, William E. Hughitt, county judge of the county of Cayuga, in the state of New York, will proceed to take proof of the facts set forth in said petition, as to the number of taxpayers joining in said petition, and as to the amount of taxable property represented by them; and that such proof will be taken at the grand jury room, in the courthouse in the city of Auburn, in said county of Cayuga, N. Y.

"Dated this 28th day of May, in the year of our Lord 1872.

"W. E. HUGHITT.

'Indorsed: 'Filed May 28, 1872.'

'Indorsed: 'Filed Any 28, 1827.'

'(The follows the usual affidavit of the printers of said newspaper, showing due publication of the notice of hearing.)

"County of Cayuga. In the Matter of the Application of the Tax-Payers of the Town of Mentz. Judgment. Upon the filing the petition herein and order made thereon, with a copy of the notice to take proof of the facts set forth in said petition, and the affidavit of publication of the said notice in the manner required by law, and by the order made in this proceedings as aforesaid, together with the testimony taken therein; and it appearing to the satisfaction of the court that the whole number of tax-payers in the town of Mentz, Cayuga county, and state of New York, whose names appear upon the last assessment roll or tax-list for the year 1871, is 434, and that of this number 225 have signed the said petition, being more than one-half of said tax-payers; and it further appearing that the total valuation of the taxable property of the said town of Mentz upon the said assessment roll or tax-list is five hundred and forty thousand six hundred and forty-five dollars, and that the valuation of the property of the petitioners as represented upon the said roll or tax-list is $312,350, being thirty-one thousand and twenty-eight dollars in excess of one-half or the total valuation of the taxable property of said town of Mentz. Now on motion of H. V. Howland, attorney for said petitioners, it is adjudged, decreed, and determined that th said petitioners do represent a majority of the tax-payers of said town of Mentz, as shown by the last preceding tax-list or assessment roll, that is to say, the said tax-list or assessment roll for the year 1871, and do represent a majority of the taxable property upon said tax-list or assessment roll. And it is hereby ordered that William A. Halsey, E. B. Somers, and J. H. Wethey, three freeholders, residents, and tax-payers within the corporate limits of the said town of Mentz, be, and they hereby are, appointed commissioners for the period of five years next ensuing, and until others are appointed by a county judge of this county, or other competent authority, to cause or execute in due form of law, with all reasonable dispatch, bonds of the said town of Mentz, of the amount of $100 each, to the amount of thirty thousand dollars, and to issue or sell the same, or dispose of the same, and invest the same, or the proceeds thereof, in, and to subscribe in the name of the said town of Mentz to, the stock of the Cayuga Northern Railroad Company to the amount of $30,000; and that the said commissioners, and each of them, shall have all the powers, and be subject to the same duties and liabilities, imposed and prescribed in and by the act of the legislature of the state of New York entitled 'An act to amend an act entitled 'An act to authorize the formation of railroad corporations, and to regulate the same,' passed April 2, 1850, (and all other acts pertaining to that subject,) so as to permit municipal corporations to aid in the construction of railroads,' passed May 18, 1869, and the several acts amendatory thereof and supplementary thereto. And it is further adjudged and ordered that notice of the final determination herein, as aforesaid, be forthwith published in the Auburn Daily Advertiser, a newspaper published in the said county of Cayuga once in each week, for three weeks.

"Dated July 17, 1872.

"W. E. HUGHITT,

"Cayuga County Judge.

'Indorsed: 'Filed July 17, 1872.'

'(Due proofs were made of publication of the foregoing determination.)

'(2) The Cayuga Northern Railroad Company was duly incorporated under the general statutes of the state, on the 22d of April, 1872.

'(3) The persons named in said adjudication of the county judge aforesaid qualified as commissioners under the statute, and subscribed, in behalf of said town of Mentz, for 300 shares of the capital stock of said company, of the par value of $100 per share, and paid therefor by the issue to said company of thirty town of Mentz bonds, of $1,000 each, in form as set out in the complaint, with coupons attached in the usual form, providing for the payment of the interest semi-annually, January and July; principal payable July 15, 1902.

'The coupons were all in the following form:

"$35.00.

"The town of Mentz, county of Cayuga, will pay the bearer hereof at the Fourth National Bank of New York, in the city of New York, on the 15th day of July, 1876, the sum of thirty-five dollars, for six months' interest then due on bond No. 7.

"$35.00. W. A. HALSEY, Commissioner.'

'(4) Prior to the commencement of this action the plaintiff bacame a purchaser of the five bonds and attached coupons, which are described in the declaration in this action, from one Deming, who had theretofore purchased the same for cash, and without notice of any infirmity, the plaintiff being a resident of the state of Iowa.

'(5) Plaintiff produced said five bonds, with twelve coupons, each $35, cut from each, in all sixty coupons, which, with the interest to the day of trial, amounted to $2,836.25.

'(6) That no part of said railroad has ever been built; but the town of Mentz raised the money by tax, according to said statute, and has paid the coupons of the entire issue, which fell due January 15, 1873. The town has never paid any other coupons, and said commissioners have retained, and now hold, the usual certificates of stock in the said railroad company, 300 shares, received by them at the time of the delivery of said bonds to the railroad company.

'(7) All the proofs were taken subject to defendant's objection that the county judge acquired no jurisdiction under the original petition, and also that the judgment of the county judge was insufficient.

'And defendant insisted upon the aforesaid objection, and prayed for a dismissal of the complaint, with costs.' The form of the bonds, of which plaintiff held five, numbered 21, 22, 23, 24, and 25, with their coupons, was thus set out in the complaint:

'No. 21. United States of America, $1,000.

State of New York, Town of Mentz, County of Cayuga.

'Issued by virtue of an act of the legislature of the state of New York, entitled 'An act to amend an act entitled 'An act to authorize the formation of railroad corporations, and to regulate the same,' passed April 2, 1850, so as to permit municipal corporations to aid in the construction of railroads,' passed May 18, 1869. This act authorizes the town of Mentz, in the county of Cayuga, to subscribe to the stock of the Cayuga Northern Railroad Co., and to issue town bonds in payment therefor. The whole amount of the bonds to be issued in pursuance of said act is $30,000. Know all men by these presents, that we, the undersigned commissioners under the above entitled acts for the town of Mentz, in the county of Cayuga and state of New York, upon the faith and credit and in behalf of said town, for value received promise to pay to the bearer the sum of one thousand dollars on the 1st day of July in the year one thousand nine hundred and two, (1902,) at the Fourth National Bank of New York, in the city of New York, with interest at seven per cent. per annum, from and after the 15th day of July, 1872, payable semi-annually upon the 15th days of July and January in each year at the same place, on the presentation and surrender of the coupons for such interest hereto annexed. In witness whereof we have hereunto set our hands and seals, and have caused the coupons hereto annexed to be signed by W. A. Halsey, on of our number, this 15th day of July, in the year one thousand eight hundred and seventy-two.

'E. B. SOMERS. [L. S.]

'W. A. HALSEY. [L. S.]

'J. H. WETHEY. [L. S.]

The judges of the court being divided in opinion as to the sufficiency of the petition, and of the adjudication and judgment of the county judge, judgment was ordered for the defendant in accordance with the opinion of the circuit judge, and the following questions, upon which the division of opinion arose, were certified to this court: 'First. Was the petition of certain tax-payers of the town of Mentz, which was presented to the county judge of Cayuga county, in the state of New York, on the 28th day of May, 1872, and a copy of which is set forth in the finding and decision of the court, sufficient, in the form and substance of its recital, to authorize the said county judge to take jurisdiction and proceed to render an adjudication pursuant to chapter 907 of the Laws of New York of 1869, as amended by chapter 925 of the Laws of New York of 1871? Second. Was it essential, in order to confer jurisdiction upon said county judge, to adjudicate pursuant to section 2 of chapter 907 of the Laws of 1869, as amended by section 2 of chapter 925 of the Laws of 1871, that the petition should state, among other things, in substance, that the taxpayers petitioning were a majority of taxpayers of the town of Mentz, who were taxed or assessed for property, not including those taxed for dogs or highway tax only? Third. Was the adjudication of the county judge of Cayuga county, made on the 17th day of July, 1872, a copy of which is set forth in the findings and decision of the court, sufficient to authorize the defendant to create and issue its bonds pursuant to chapter 907 of the Laws of New York of 1869, as amended by chapter 925 of the Laws of New York of 1871? Fourth. Was it essential, in order to confer authority upon the defendant to create and issue its bonds under said Laws of 1869 and 1871, that the adjudication or judgment oft he county judge should declare, in substance, that the quorum of tax-payers who desired that the defendant should create and issue its bonds was one exclusive of tax-payers who were assessed or taxed for dogs or highway tax only?'

The opinion of the circuit judge is reported in 19 Fed. Rep. 725, and of the district judge in 18 Fed. Rep. 52.

James R. Cox, for plaintiff in error.

F. D. Wright, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.