[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 408 The plaintiff alleged the performance of the statutory conditions on which alone the defendant could be made liable to pay the bonds or coupons in question, but in the opinion of the trial court so failed in proof that it gave judgment against him upon the ground that those instruments "were issued without authority of law," and were void. This has been reversed by the Supreme Court, and a new trial granted, but upon what ground does not appear. The respondent, however, seeks to maintain the order of reversal upon the grounds, first, that the bonds recite on their face "that all necessary legal steps and proceedings have been taken to comply with the laws under which they were issued;second, that the judgment and adjudication of the county judge of May 22, 1871, is absolutely conclusive upon the defendant;third, that the statute was in fact complied with."
It would be a sufficient answer to the first position that the recitals in the bonds are not in the form above suggested.
It is, however, unnecessary to discuss this question, for we have heretofore refused to give that effect to the recital in similar bonds, and have repeatedly held that one who takes such instruments, although in good faith, must see to it that they are authorized by the statute under which they purport to have been issued. (Town of Lyons v. Chamberlain, 89 N.Y. 585; Cagwin v. Town of Hancock, 84 id. 532.)
The next proposition is of a more serious character. The statute (Laws of 1869, vol. 2, p. 2303, chap. 907, §§ 1, 2) enables a majority of its tax payers whose names appear upon the *Page 410 last preceding assessment-roll of the town, as owning or representing a majority of the taxable property within its corporate bounds, to set in motion by their petition proceedings which, if successful, would cause the town to bond itself in aid of the railroad company named therein, and confers upon the county judge authority to adjudge and determine whether, as alleged in their petition, they did constitute such majority of tax payers representing such majority of taxable property, and if so, cause his determination to be entered of record, and gives to such judgment and the record thereof "the same force and effect as other judgments and records in courts of record in this State." This determination has been made and is relied upon by the plaintiff, but on the part of the defendant it is insisted that the judgment of the county judge is null and void for want of jurisdiction. This question it can fairly raise. The general doctrine is well settled that the jurisdiction of any court exercising authority over a subject may be inquired into in any court where the proceedings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings. This rule was laid down in Elliott v.Peirsol (1 Pet. 328), and cited with approval by this court inChemung Canal Bank v. Judson (8 N.Y. 254). So far as this question is concerned the only effect of the statute (§ 2,supra) was to relieve the plaintiff from the necessity of showing, step by step, the proceedings which led up to the judgment, and place upon the defendant the burden of showing that no jurisdiction in fact existed in the county judge. The plaintiff, however, did not avail himself of this privilege. He treated the judge as an inferior tribunal and undertook to show the facts relied upon to give him jurisdiction. He left no room, therefore, for the presumption which would otherwise have required evidence from the defendant to remove. As the case stood it could show, if possible, not that the judgment was erroneous, but that it was void. In this it was properly successful, if the conditions on which that jurisdiction depended had not been fulfilled. (Davidsburgh v. Knickerbocker L. Ins. Co., 90 N.Y. 526; Ferguson v. Crawford, *Page 411 70 id. 253; 26 Am. Rep. 589; People, ex rel. Tweed, v. Liscomb,60 N.Y. 568; 19 Am. Rep. 211; People, ex rel. Rogers, v.Spencer, 55 N.Y. 1.) These cases go upon the ground, now well established, that the record, whether of a superior or an inferior court, is never conclusive as to the existence of a jurisdictional fact, and that a defendant may show a want of jurisdiction although the record avers the contrary. (Davis v.Packard, 6 Wend. 327; Bloom v. Burdick, 1 Hill, 130;People v. Cassels, 5 id. 164; Ferguson v. Crawford,supra.) And quite applicable to the present inquiry is the declaration of PAIGE, J., in Hard v. Shipman (6 Barb. 621), cited with approval in Ferguson v. Crawford (supra), "that if the court had no jurisdiction, it had no power to make a record, and the supposed record is not in truth a record." Had the county judge then jurisdiction? This could only be conferred by the presentation of a petition conforming to the statute. (Town of Wellsborough v. N.Y. C.R.R. Co., 76 N.Y. 182;People v. Spencer, supra.) Such petition would be absolute in form, and express, first, a desire that the town be bonded in a sum named; second, directions for the investment of the bonds or their proceeds in a specified security of the railroad company named in the petition. (People, ex rel. Rogers, v. Spencer,supra.) The petition presented to the county judge and on which he acted is not within these limits. Thirty-seven petitioners, representing in the assessment list property valued at $46,250, insert a "condition that said road is located by Fish lake and Shavertown;" six petitioners, representing $12,150 of property, insert a condition that it "be located by Fish lake and Shavertown or village," and ten others, representing $13,050, that it be located "by Shavertown and Lumberville." These conditional petitioners constitute about one-fourth of all the petitioners and own more than that proportion of the property owned by all the petitioners, and excluding them there would remain on the petition much less than a majority either of tax payers or property. But they were not excluded.
The county judge predicated his order upon them, treated all the papers as constituting one petition, and filed and made *Page 412 them one record. The conditions, therefore, affect the entire petition. The statute confers no power upon the tax payer to indicate or secure a railroad location to suit his convenience or benefit his property, but, for the advantage of all the town, enables him, as one of the majority, to appropriate its money to a railroad already organized, and whose line should have been determined according to the unbiased judgment of its managers. This is not a mere formal or technical condition. The General Railroad Act (Laws of 1850, chap. 140), into which the Bonding Act of 1869 (Laws of 1869, chap. 907) is introduced by amendment, permits an entry by a railroad corporation upon the lands of any owner against his consent and without compensation, for the purpose of making such examination and survey "as may be necessary to the selection of the most advantageous route," and requires a map and profile of the route intended to be adopted, to be filed, and notice of such filing given to the occupant of the land traversed by the proposed road. And this, if objected to, is to be either altered or confirmed as may, in the opinion of the Supreme Court, "be consistent with the just rights of all parties and the public." It is to a road thus located, after the exercise of power over the property rights of individuals which nothing but public necessity could warrant, by parties indifferent between various sections of a town, or by judicial action, that the attention of the tax payers is to be directed and their favor obtained in view of a public benefit to the municipality. This would be interfered with, or wholly defeated, by an arrangement depending upon successful solicitation of a property owner whose consent was given on the express condition that his preference should be followed. A petition that aid be extended to a railroad company, provided a certain thing is done, is very different from a simple petition that aid be extended to that company. It must also be borne in mind that this petition is to be addressed to the county judge, and that he has no power to accept or reject the condition, consequently none to make the petition effective. It has already been said by this court "that the presentation of a proper petition lies at the basis of his *Page 413 jurisdiction," and that if any facts, required to be stated, are omitted, all the other proceedings are fatally defective. InPeople, ex rel. Rogers, v. Spencer (supra), the petition failed to state that the railroad corporation named was a domestic one, and on that ground the court reversed the adjudication of the county judge. In People, ex rel. Green, v.Smith (55 N.Y. 135), the proceeding was under the act of 1871, which required the petition to show, in addition to the facts called for by the act of 1869 (supra), that the petitioners were a majority of the tax payers, "not including those taxed only for dogs, or highways only," and it was held that by reason of this omission the county judge acquired no jurisdiction of the proceedings, and that he could not, of his own motion, dispense with the performance of a condition precedent to the exercise of the authority conferred by the act. This decision was followed in a much later case (Town of Wellsborouyh v. N.Y. C.R.R. Co.,76 N.Y. 182), and for the same defect in the petition it was held that the county judge acquired no jurisdiction and that his order and subsequent proceedings were void. It was there also declared to be the settled doctrine of the court that the proceedings for town bonding in aid of railroads will not be sustained, "when there has been a failure to comply strictly with the statutes conferring the authority."
The desire expressed in the petition is not within the purview of the act (Laws of 1869, supra). The petitioners give no absolute consent. It is qualified or conditional. We desire, they say, the company to be aided, provided, or on condition, that the line of the road is as we indicate. So far as the petitioner himself is concerned, the right to tax his property is clogged with the condition that the road shall run as he directs, and is entirely inconsistent with the right to create a tax in aid of a road constructed without reference to his wish, and with regard only to the public good. This seems plain enough on any principle applicable to the construction of statutes, but it is also within the authorities, which uniformly require that every statutory condition, precedent to the taking, by any mode, of private property for public use as against the *Page 414 will of the owner, shall be strictly complied with. (Dyckman v.Mayor, etc., 1 Seld. 439; N.Y. B.R.R. Co. v. Godwin, 12 Abb. Pr. [N.S.] 21; In re Boston H.T. W.R. Co., 79 N.Y. 71.)
In proceedings under certain acts giving a materialman or mechanic a lien "with the written consent of the owners," it was held that the consent must be absolute and not conditional, and that such consent, when coupled with the provision that the repairs should be at the cost of the tenant, was not an absolute consent, and was insufficient to authorize a lien upon the building. (McClintock v. Criswell, 67 Penn. St. 183;Boteler v. Espen, 99 id. 313.)
In Butternuts and Oxford Turnpike Co. v. North (1 Hill, 518), the defendant subscribed for stock in plaintiff's road, "Upon condition that said road shall be laid by Fayette village and Guilford Centre." The commissioners for securing subscriptions obtained several signatures to this, and also to another, absolute in its terms. Upon suit brought the court held the subscription did not bind the defendant, saying subscriptions for stock, under the act there in question (1 R.S. 578), must be absolute, adding, in words applicable here, "this act confers no power to make conditions, and to allow such a thing would be contrary to public policy. Divers men would perhaps have their divers routes, and endeavor, improperly, to influence the course of the road." This case was cited and applied by this court inFort Edward and Fort Miller Plank Road Co. v. Payne (15 N.Y. 583), where the condition of subscription was that the road should be extended to a point named by the subscriber. The subscription was held void, as tending to promote private interest at the sacrifice of the public convenience, for which, alone, the formation of such corporations was authorized.
In Troy and Boston R.R. Co. v. Tibbits (18 Barb. 298) a conditional subscription to stock in a railroad corporation, organized under the General Railroad Act, was held void, Judge WRIGHT saying: "The law of 1848 confers no power to make conditional subscriptions, and such a thing is contrary to public *Page 415 policy." So, in People, ex rel. Averill, v. Adirondack Co. (57 Barb. 656), the General Term of the third department held the order of the county judge, made under the act now before us, to be void, because "it was based upon a petition that was conditional and not absolute," requiring the money raised to be used in a particular county. These cases apply here. The petition is not absolute. The order is based upon it, and the statute, by compliance with which, alone, the town can be bound, has not been followed. This defect was apparent upon the face of the petition, and it follows, both that the county judge had no jurisdiction to entertain the proceedings — consequently, none to make a record or judgment — and that the plaintiff is affected with notice thereof. It is also to be considered that the statute by which the action of the county judge is directed confers upon him no power to pass conclusively upon the form of the petition. Its sufficiency is always open to inquiry. His judgment can be called for upon two points only: First, whether the petitioners do represent a majority of tax payers, and second, a majority of the taxable property. (People, ex rel. Rogers, v. Spencer,supra.)
The conclusion reached by us upon the point already considered renders it unnecessary to discuss other questions raised by the appellant, and also answers the claim of the plaintiff that the town is estopped from questioning the validity of the coupons, for, as they were issued without authority and in violation of law, there is, in respect to them, nothing in the circumstances of the case to prevent the defendant from availing itself of that defense. (Cagwin v. Town of Hancock, supra.) The learned counsel for the respondent relies upon the decision in Calhoun v. Delhi and Middletown Railroad (28 Hun, 380). It was in equity and involved the allowance of an injunction to restrain the payment of bonds issued under the proceedings above referred to, and to have them adjudged void and canceled. Many propositions are discussed by the learned judge in the opinion there given, which we do not find it necessary now to determine. Nor is the correctness of that decision in question here, for a court of equity might, in its *Page 416 discretion, refuse to interfere, and leave the party to his legal rights.
But so far as the question relates to the form and validity of the petition, the views of the learned judge are at variance with those above expressed, and we cannot agree with them. They are in substance, first, that the condition inserted in the petition was a modification which the petitioner had a natural right to make; second, that it is expressly authorized by the act of 1871 (Laws of 1871, chap. 925, § 1), which declares that the petition may be absolute or conditional; third, because as stated upon argument before him, the railroad as a fact was located by Fish creek and Shavertown, and so he says "no ground of complaint on that score exists." The first and third might deprive the party consenting of any favor from a court in equity, but cannot be accepted as equivalent to the positive consent of the tax payer, upon which alone the jurisdiction of the county judge could be invoked. The whole proceeding is in violation of natural right. That leaves to each person control over his own property without regard to the wishes of his neighbors, however numerous, and the statute which permits their interference is, as we have already held, "subversive of the just rights of the minority." (Town ofWellsborough v. N.Y. C.R.R. Co., supra.) Whoever, therefore, claims an advantage from it must see that each step required by the statute is taken in the manner and at the time prescribed. (People v. Spencer and Town of Wellsborough v. N.Y. C.R.R.Co., supra.) In these cases although the fact omitted from the petition was supplied by evidence, the proceedings failed because the statute was not complied with.
As to the other ground: The statute of 1871 (supra) has no application. The petition was signed in 1870 and presented to the county judge and filed by him on the 6th of May, 1871; on that day he made the order which lies at the basis of these proceedings, and it must be sustained, if at all, upon the jurisdiction thus acquired. The act of 1871 was not passed until May 12, 1871. It cannot aid this case. If it is applied, however, the proceedings would be defective, for a reason supplied *Page 417 by that act itself. Under it persons taxed for dogs or highways only are excluded from the number of those who may be counted as petitioners, and that they were excluded must appear in the petition and judgment. (People v. Smith, supra.) This was not necessary under the act of 1869, and in that respect the petition is good; as one under the act of 1871, it is not good. But as the proceedings were commenced under the act of 1869, the sufficiency of the petition must be determined with reference to that act, without regard to the subsequent amendment. (Ely v. Holton,15 N.Y. 595; Syracuse Savings Bank v. Town of Seneca Falls, 86 id. 317; People, ex rel. Peake, v. Board of Supervisors, 43 id. 130.) This amendment does, however, indicate the understanding of the legislature of the law as it stood before the passage of the act, and the great change in phraseology shows that in their opinion a conditional petition was not authorized by the prior act of 1869, supra. (People, ex rel. West. F.I.Co., v. Davenport, 91 N.Y. 574; Hardcastle on Statutes, 67.) It is true the petition consists of several distinct papers, but, as already stated, they were acted upon by the county judge as constituting a single instrument. Indeed no part could have been rejected. A proper petition was a condition precedent to his jurisdiction — that is, to his right or power to entertain the matter at all — and the papers presented could only be taken as presented and as a whole. The petition is also required to be verified. That too is a jurisdictional circumstance. There was but a single verification, and looking at the case in a manner most favorable to the plaintiff, the affiant referred to the whole body of papers as "a petition." If, therefore, we reject the portions which contain the conditions, we take away at the same time the verification, so that in either aspect the petition fails to show that the county judge had jurisdiction to entertain the proceeding, and it could not be acquired by any adjudication of his own. The petition itself must be looked to in order to determine whether he had in fact jurisdiction to take proof of the facts set forth therein "as to the number of tax payers *Page 418 joining in such petition and as to the amount of taxable property represented by them."
Our attention is also directed to the act of 1870 (Chap. 507, vol. 2, Session Laws of 1870) entitled "An act to define the powers of commissioners appointed under chapter 907 of the Laws of 1869, binding municipalities to aid in the construction of railroads." Its provisions do not seem to aid the plaintiff or have any tendency to relieve the case of the difficulty I have been considering. Its title indicates its object, and the act itself clearly relates to a different matter from the one on which the difficulty arises. "It shall be competent," it declares, "for any corporation, in aid to the construction of whose railroad; bonds shall have been authorized to be issued by any municipal corporation" * * * * * "to enter into any agreement with the commissioners appointed to issue said bonds, limiting and defining the times when, and the proportion in which, said bonds or their proceeds shall be delivered to said corporation, and the place or places where, and the purposes for which, such bonds or their proceeds shall be applied or used, and any such agreement in writing, duly executed by such corporation, and a majority of such commissioners, shall * * * * be valid and effectual." It confers a new power upon these officers, but I am unable to see that it relieves the petition of the defect by reason of which it is ineffectual for any purpose, even to authorize the appointment of commissioners. It gives no power to locate a road, but the right to designate upon what portion of a road already located the bounty of the town shall be applied. Nor can the case of The People, ex rel. Hoag, v. Peck (4 Lans. 528), to which also reference is made, help out the respondent. The petition then before the court was presented under the act of 1871 (supra), and was thought to be authorized by it, and the remarks of the court as to the probable effect of the act of 1870 can hardly be deemed to express even the opinion of the learned judge who spoke for the court, for they were made as suggestions merely, and are not consistent with the principle then fully established by this court and referred to with approbation in the *Page 419 case cited, by which nothing can be presumed or intended in favor of these proceedings, and which requires the party endeavoring to maintain them to show that the terms of the statute have been in all essential particulars complied with. That compliance has not been shown. The petition is fatally defective. It warranted no action by the county judge, and we are constrained to say that the objection of the defendant was good, and the appeal well taken.
It follows that the order appealed from should be reversed, and the judgment entered on the report of the referee affirmed, with costs.