TOWN OF ANDES v. ELY.

The act of 1869 has been heretofore presented to this court for consideration, and the effect of a judgment of a county judge determined. Orleans v. Platt, 99 U. S. 676; Lyons v. Munson, Id. 684. In the former case it was said:

'The county judge was the officer charged by law with the duty to decide whether the bonds could be legally issued, and his judgment was conclusive, until reversed by a higher court.'

'The county judge unquestionably had jurisdiction to decide upon the application made by the taxpayers. His judgment, until reversed, wasf inal. If there were errors, the proceedings should have been brought before a higher court for review by a writ of certiorari; and, if need be, the issuing and circulation of the bonds should have been enjoined, subject to the final result of the litigation. The judgment rendered can no more be collaterally attacked in this case than could any other judgment of a court of competent jurisdiction, rendered with the parties, as in this case, properly before it.'

It is objected that since those decisions the court of appeals of the state of New York has pronounced the very judgment on the strength of which these bonds were issued invalid. Craig v. Town of Andes, 93 N. Y. 405. In that case the court of appeals, by a bare majority, held that the petition was fatally defective because it was, as to some of the petitioners, conditional, and that by reason thereof it warranted no action by the county judge. But in the subsequent case of Calhoun v. Millard, 121 N. Y. 69, 24 N. E. 27, it was developed that Craig v. Town of Andes was a collusive action; the town owning the coupons sued on, and paying for the services of counsel on both sides. And it was held that the decision so obtained could not be considered as an adjudication binding the bondholders in any subsequent controversy between them and the town, the court saying: 'We fully assent to the claim of the counsel for the bondholders that an adjudication obtained under such circumstances ought not to stand in the way of a re-examination by the court of the grounds upon which it proceeded.'

It is true that the court did not re-examine the proposition affirmed in the former opinion, but, after thus indicating that the question was open for further consideration, disposed of the case upon other grounds. The question must therefore be considered an open one in the courts of New York, and there is nothing in the decisions of those courts to compel a re-examination by us of our prior rulings.

Several objections, however, to the validity of this judgment, are called to our attention, and require notice. The first and principal one arises out of the fact, considered vital by the court of appeals in the case of Craig v. Town of Andes, supra, that the petition was, as to some of the petitioners, conditional. It is admitted that if the names of the conditional petitioners were stricken from the list the remainder would not constitute a majority of the taxpayers, or represent a majority of the taxable property. The argument is that a conditional petition amounts to nothing. The unconditional petitioners were neither a majority of the taxpayers, nor representing a majority of the taxable property. The statutory petition was never filed. The condition upon which action by the county judge could legally be had did not exist. He therefore never acquired any jurisdiction, and his judgment was coram non judice and void.

We are unable to assent to this contention. The petition, as presented, alleged that the petitioners were a majority of the taxpayers, and represented a majority of the taxable property. It thus stated the facts necessary to invoke the action of the county judge. It nowhere disclosed the amount of the taxable property in the town, or the number of the taxpayers, and nowhere stated how much of such taxable property belonged to the petitioners, either separately or altogether. There was but a single verification, and that at the bottom of one of the 19 sheets upon which the petition was written. That sheet was signed by over 40 names, and signed unconditionally. It is fair, however, to regard the 19 sheets, though in form separate, as really constituting but one petition, and a single verfication, which was made on May 6, 1871,—the day of presentation to the judge,—as applicable to such petition as a whole. Otherwise this single verified sheet was a perfect petition, open to no objection, and compelling action by the county judge; and, if this case is to turn on narrow grounds, then each sheet mayb e considered a separate petition, and, one being technically beyond objection, the others may be ignored, and the jurisdiction of the county judge rested upon that one.

But we are not disposed to rest our conclusion upon this narrow ground. There was but the one petition, signed by about 200 parties, of whom 50 attached a condition to their signatures. Was that sufficient to defeat the jurisdiction? The conditions named were the location of the road by Fish Lake, Shavertown, and Lumberville. The various sheets composing the petition were all dated November 23, 1870, but the verification and the filing were May 6, 1871. Intermediate these two dates, and on March 4, 1871, the railroad company filed in the office of the clerk of Delaware county a map of the route selected by it, certified by its president and chief engineer to be 'a correct map and profile of the route intended to be adopted by said company for their railroad.' An examination of the route thus located shows that it passes by the three places named, so that at the time the petition was filed the conditions had been performed by the railroad company. Is it not fair to hold that the petition was at the time of its presentation an unconditional petition on the part of all the signers? There was in fact no limitation or restriction on the express request of all the petitioners for the issue of the bonds. At least, when such a petition was presented, it was within the competency of the county judge to hear and determine whether or no the conditions named had been performed. The petition called for some action. The duty of judicial inquiry arose, and there can be no judicial inquiry without jurisdiction. He was compelled to examine and determine whether the verification was in proper form, whether there were in fact the signatures of any petitioners on the paper, whether any railroad company was named, and whether there was an application for the issue of bonds, and, if there were any limitation or qualification to a signature, whether such limitation or qualification affected substantially the merits of the application. If he found a condition of a substantial character, he was then called upon to ascertain and decide whether the condition had been waived, or so far performed since the signature as to cease to be any limitation upon the petition. An error in his rulings upon any of these matters did not oust him of jurisdiction. This, it must be borne in mind, is not the case of a total failure in respect to any particular matter required by the statute to be stated in the petition.

But we may go further, and hold that attaching a condition to a petition does not always, and necessarily, vitiate it. A subscription by a municipality to the stock of a railroad company stands upon a different footing from one made by an individual. In the latter case it is a mere transaction for purposes of pecuniary gain, and there is no limitation on the right of the individual to subscribe to the stock of any railroad corporation, no matter where such corporation proposes to build its road. But a municipal subscription requires something more than the mere prospect of pecuniary gain. It can be upheld only on the theory that by the construction of the road some public benefit to the municipality is secured, and that public benefit may justify, and sometimes require, the insertion in the subscription of a condition in respect to the matter of location. A railroad corporation naming the termini of its road has large latitude in respect to the location of the intermediate route. One location may be so far from a particular town between the termini as to make indefensible a subscription by such town in aid of the construction, and to incorporate a condition in the subscription which makes the location one of public benefit to the town cannot be held absolutely void. Suppose the entire petition had been for the issue of bonds on condition that the road should be located through the town of Andes. Could it be adjudged that such a pei tion was a nullity, and laid no foundation for action by the county judge? We think not.

While courts may properly see to it that proceedings for casting burdens upon a community comply with all the substantial requisitions of a statute, in order that no such burden may be recklessly or fraudulently imposed, yet such statutes are not of a criminal character, and proceedings are not to be so technically construed and limited as to make them a mere snare to those who are encouraged to invest in the securities of the municipality. These considerations are appropriate to this case. The proc eedings on the part of the town and the railroad company were carried on in evident good faith. No one questioned their validity; no effort was made to review the action of the county judge; the bonds were issued; more than $100,000 was spent within the limits of the town in the construction of the road; and years went by, during which the town paid the interest and part of the principal, before any question was made as to their validity. We think there is eminent wisdom and justice in the observations of the court of appeals in the case of Calhoun v. Millard, supra:

'The town and the taxpayers permitted the bonds to be dealt with and taken by savings banks and others for nearly ten years, not only without, so far as appears, a word of warning or protest, but, by affirmative acts of recognition, encouraged investment therein, as safe and valid securities. The bonds, resting on the adjudication of the county judge, were apparently valid. The legislature has still the power to ratify them, and make them valid obligations of the town. Williams v. Town of Duanesburgh, 66 N. Y. 129; Horton v. Town of Thompson, 71 N. Y. 513; Rogers v. Stephens, 86 N. Y. 623. They are now in the hands of bona fide holders; that is, of persons who have paid value for them without notice. * * * The denial of relief in this case may result practically in the enforcement of the bonds in question, and also of other town bonds issued and held under similar circumstances. But in contrasting the relative conduct and situation of the town and the taxpayers, on the one side, and the purchasers of bonds, on the other, we cannot say that such a result will be repugnant to any principle of justice or equity.'

Again, it is objected that there was no legal incorporation of the Delhi & Middletown Railroad Company. The statutory provisions of the state of New York in respect to the formation of railroad corporations are found in chapter 140, Laws 1850 (2 Rev. St. N. Y., 6th Ed., p. 519). The record shows that the articles of association, duly verified, were filed and recorded in the office of the secretary of state, as required by section 2 of the act. The objection is that the statute requires that there shall be subscribed at least $1,000 of stock for every mile of railroad proposed to be laid, and that, as appears from the articles, certain subscriptions were made on condition that the road was located through Lumberville, and others, provided the road went to Shavertown. These subscriptions, being conditional, it is claimed, amount to nothing; and, as the unconditional subscriptions are less than $1,000 per mile of the proposed road, it is insisted that the attempted incorporation was a failure. We deem it unnecessary to consider this question, for it is familiar law that one who contracts with a corporation, as such, cannot afterwards avoid the obligations assumed by such contract on the ground that the supposed corporation was not one de jure. Leavenworth Co. v. Barnes, 94 U. S. 70; Commissioners v. Bolles, Id. 104; Casey v. Galli, Id. 673; Chubb v. Upton, 95 U. S. 665. Further, after the contract had been made, the bonds issued, and the stock received by the town, the legislature of the state of New York passed, in two successive years, acts authorizing the town to sell and dispose of such stock. At a special town meeting held after the passage of the first act, the town voted not to sell, and at a meeting held aftr the second act it voted to sell. These two acts of the legislature were distinct recognitions of the existence of the corporation known as the Delhi & Middletown Railroad Company, whose stock, held by the town, the latter was permitted to sell. Comanche Co. v. Lewis, 133 U. S. 198, 10 Sup. Ct. 286; State v. Commissioners of Pawnee Co., 12 Kan. 426; State v. Stevens, 21 Kan. 210; State v. Hamilton, 40 Kan. 323, 19 Pac. 723. There is no evidence of any challenge on the part of the state of the validity, of the corporate franchises assumed to exist, and exercised by the company. In view of these considerations, it is impossible now to recognize as valid the claim that by reason of the supposed defect in the original incorporation all the acts of the town, in respect to the issue of bonds, the subscription to and the receiving of stock, were void.

Again, it is objected that the proceedings before the county judge were absolutely void, on the ground that the notice does not specify the place at which the hearing on the petition is to be had. It is enough to say, in reply to this objection, that, where a notice fails to name any other place, it will be presumed that the place intended is the regular office of the county judge. No particular specification is required, unless the hearing is to be had at some place other than that at which his judicial work is customarily done. The statute under which these proceedings were had recognizes this. The section which provides for notice prescribes that the county judge shall order the publication of a notice 'setting forth that on a day therein named * * * he will proceed to take proof,' etc. Nothing is said in respect to naming a place for the hearing, and yet the next section commences, 'it shall be the duty of the said judge at the time and place named in the said notice,' etc. Any seeming discrepancy between these sections is removed by the consideration that, in the absence of other specification, the law writes into the notice the office of the county judge as the place of hearing.

A further objection is that the county judge was disqualified on the ground that he was at the time a stockholder in the Delhi & Middletown Railroad Company, and this provision of the Revised Statutes of the state of New York is cited: 'That no judge of any court can sit as such in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.' The name of the county judge appears on the articles of association, filed with the secretary of state, as a subscriber to one share of stock; but his testimony, which is not contradicted, is as follows:

'I signed for one share of stock, and the next day I stated to the person with whom I took the stock that I would not take it, and he agreed to take my name off. I don't know who it was, and I can't tell as I signed my name, or not. I know I saw the proper person, and canceled my agreement to take the stock, and I never took it. It was agreed that I should not. I think it was the same person I saw first when I made the agreement. The bonding proceedings of the town of Andes were had before me as county judge. The talk as to my taking stock was some time before the proceedings were had before me. The certificate of stock was never tendered or offered to me.'

Obviously, he was not a party interested, and therefore there is no need to inquire whether, if interested, the fact could now be shown in a collateral attack so as to avoid the judgment.

But, further, in view of the recitals in the bonds, are these questions open for inquiry? Ample authority was given by the statutes of the state referred to. Whether the various steps were taken which in this particular case justified the issue of the bonds was a question of fact; and when the bonds, on their face, recite that those steps have been taken it is the settled rule of this court that in an action brought by a bona fide holder the municipality is estopped from showing the contrary. See the multitude of cases commencing with Commissioners v. Aspinwall, 21 How. 544, and ending with Citizens' Savings & Loan Ass'n v. Perry Co., 156 U. S. 692, 15 Sup. Ct. 547. It may be said that those decisions are not wholly in point, inasmuch as these bonds were signed, not by regular officers, but by commissioners specially appointed, and that, before a recital made by them can be held to conclude the town, it must appear that they were duly appointed, and thus had authority to act. Doubtless this distinction is not without significance. Yet they were acting commissioners, and their authority was recognized, for each bond was registered in the office of the county clerk, and attested by the signature of the county clerk with the seal of the county; and if we go back of that, to the records of the county judge,—the appointing power,—there appears a separate order, in due form, appointing them commissioners, which order recites a prior adjudication of all the essential facts. Giving full force to the distinction which exists between the action of general and special officers, there must be, even in respect to the latter, some point in the line of inquiry back of which a party dealing in bonds of a municipality is not bound to go in his investigations as to their authority to represent the municipality, and that point it would seem was reached when there is found an appointment in due form made by the appointing tribunal named in the statute. However, as our examination of all the proceedings in fact had in respect to the issue of these bonds satisfies us of their validity, it is unnecessary to rely upon the mere recitals.

Finally, the jurisdiction of the trial court is challenged on the ground that under the act of congress of 1887 (24 Stat. 552), as amended in 1888 (25 Stat. 433), a subsequent holder of negotiable paper payable to bearer cannot invoke the jurisdiction of the federal courts unless the original holder was also entitled to sue therein. But the statute excepts from this provision instruments made by a corporation, and a town, under the laws of the state of New York, is a corporation, so far as respects the making of contracts, the right to sue, and the liability to be sued. Lorillard v. Town of Monroe, 11 N. Y. 392.

These are the only questions which are of sufficient importance to require notice. We see no errors in the rulings of the circuit court, and its judgment is therefore affirmed.