The order appealed from cannot be sustained, except by holding that the affidavits on file are conclusive evidence as against the defendants; that the tax payers of the town of Summit had given the requisite consent to authorize a subscription to be made in behalf of the town to the capital stock of the relators, as directed by the mandamus. Neither the proof on file nor the consent of the taxpayers is set out in the printed case, with which we have been furnished, although they are referred to in the moving affidavit, and the order to show cause recites that it was granted on said affidavit, "and upon the consent in writing, and proof thereof therein referred to, or copies thereof." The defendants, however, in their opposing affidavits, set forth a copy of what they aver to be the original consent or subscription paper; and it is plainly to be inferred, from the whole case, that such paper is also a copy of the consent, appearing on the books of the company, and proved by the affidavits on file, except that the latter consent provides that the commissioners shall not subscribe for stock unless the total of all the subscriptions amounts to one million of dollars, while the original consent provided that they should not subscribe unless the total of the town subscriptions amounted to that sum. As the latter condition has not been complied with, the matters alleged in the opposing affidavits constitute a complete defense to the application, unless the defendants *Page 557 are concluded by the consent and proofs on file, as they now appear.
The majority of the court below held that the defendants were so concluded, by force of the provisions of an act of the legislature, passed in 1863, and amended in 1864, several years after the consent was given and the proof was filed. The act, as amended, provides that, when affidavits of the consent of the tax payers shall have been filed, as required, "such affidavits shall be valid and conclusive proof, in all courts, and for all purposes, to authorize and uphold the respective subscriptions to the stock, and the issue of bonds to the amount specified in such proof, for such terms, respectively, and no clerical, or other defects, in any of such affidavits, shall invalidate such proof, or the subscription to the stock, or the said bonds. (Laws of 1863, p. 30, ch. 18, § 1, amended 1864, p. 911, ch. 402, § 1.)
The object of that provision is to protect town commissioners, acting in good faith in subscribing for stock and issuing bonds to the amount specified in the proof filed by them, and to protect, also, bona fide holders of the bonds, and all persons relying on the faith of the subscription. For those purposes, and in such cases, it makes the proof, filed by the commissioners, conclusive. The present case is not of that nature. Here, the commissioners have not issued bonds, nor subscribed for stock, but the object of the application is to compel them to make a subscription, and issue bonds to pay therefor. In answer to the application, the defendants are not concluded from showing, as they offered to do at Special Term, that the written consent, given by the tax payers, contained an express and material condition, which had not been performed at the time when the application was made, and that, since the consent was given, and the proof was filed, the writing had been altered, by erasing the condition, without the consent of the subscribers. A contrary construction of the act would be palpably unjust to towns and their tax payers, and would give opportunity and encouragement to gross frauds upon them. Upon the assumption that the defense alleged in this case can be sustained by proof, it is *Page 558 not only the right, but the clearest duty of the commissioners to resist the application, in order to save the town they represent, and its tax payers, from the imposition of an unjust and oppressive tax.
A reference to the act of 1856, authorizing any town in the counties therein named to subscribe to the capital stock of the relators (Laws of 1856, ch. 64, p. 89), and the several acts amending it, passed previously to those containing the provisions immediately in question (1857, ch. 401, p. 810; 1859, ch. 383, p. 905), will show that the legislature did not intend, by those earlier acts, that any town should be made liable to taxation for the proposed improvement, without the consent of a majority of its tax payers first obtained. There is no evidence that the acts of 1863 and 1864 were intended to change the policy theretofore adopted, and subject towns to taxation without the consent of any portion of their tax payers. Yet such would be the obvious effect of giving to those later acts the construction contended for by the relators in the present case, for it would make absolutely binding and conclusive, a consent which, by its terms, was not to be binding except upon a condition that has not been performed.
In the case before us the commissioners should have an opportunity to prove the matters alleged to them, and, for that purpose, the order of the General Term should be reversed with costs of both appeals, and that of the Special Term should be modified, so as to award an alternative, instead of a peremptory mandamus.
LEONARD and PECKHAM, JJ., were also for reversal; all the other judges concurring in the opinion of PORTER, J.,
Order affirmed. *Page 559