I do not concur in the conclusion which the majority of the court have reached, nor in the reasoning upon which that conclusion is founded. The town of Andes disputes the validity of its bonds, after having steadily paid the interest upon them for a period of about ten years, after having also paid a part of the principal, and when innocent persons, deceived by the appearance of validity, have largely become their owners. The adjudication of the county judge, before whom all parties were summoned, and given an opportunity to be heard, has remained unchallenged during all this period of time, but it is now discovered to have been without jurisdiction. The ground of this conclusion is a single one out of many alleged, and to that one alone it now becomes necessary to direct attention. Briefly, though I trust fairly, stated it is this: that under the statute of 1869 a petition, "absolute in form," was requisite to the jurisdiction, and that the one presented was not "absolute in form," because one-quarter of the signers added to their consents conditions that the railroad be located by a particular route.
Now it is to be observed that the statute nowhere, either in terms or by necessary implication, prescribes the "form" of the petition. The language of the act is not that the majority of the tax payers must signify their desire without condition annexed. No such words are in the act. The legislature has not so declared. The requirement is argued into it as an *Page 420 unwritten necessity of the petition from the alleged fact that conditional consents are ineffective and unavailing, and that the county judge could not render them operative; and then jurisdiction is denied in the present case because the evidence shows that without the conditional signers a majority in number and amount were not represented on the petition. This last suggestion seems to me indefensible, and should be considered first in order to remove from the discussion what may obscure and confuse it.
The question of jurisdiction arises solely upon the paper presented. Nothing else, no other evidence, no after-ascertained facts are before the officer. Neither he nor we have any right to mix up that question with facts afterward proved. The fact advanced and relied upon to justify a denial of jurisdiction depends upon the number of tax payers in the town as represented on the last preceding tax-roll. But that tax-roll was not before the county judge on the presentation of the petition. The officer could not judicially know how many names were on the tax-roll, how many tax payers were in the town, or what number of signers constituted a majority of the unknown whole number. He could not know and had no right to know; and to argue him out of his jurisdiction, by reference to what is said to have been proved when his jurisdiction was assailed on the trial in the present case, is to make the jurisdiction depend, not upon the face of the petition as presented, not upon the sufficiency of its allegations, but upon their truth as matter of fact. It is as if one should demur to a complaint on the ground that it did not state facts sufficient to constitute a cause of action, and then seek to sustain the demurrer on appeal in this court by showing that, in an after action, it was proved that the facts pleaded were not true. The jurisdiction of the county judge depended upon the sufficiency of the allegations and not upon their truth; upon the paper presented, not upon the facts behind it. What possible protection could the adjudication of the county judge give if its correctness could always be assailed under the guise of an inquiry into a jurisdictional fact? The statute is not perhaps *Page 421 very accurately or happily expressed, but its meaning is not doubtful. Jurisdiction attaches whenever a petition is presented, signed by such a number of tax payers as may constitute the required majority, and sworn to be such by one of the signers. That makes a prima facie case. That protects against an absurd or idle application. Thereupon the duty of the county judge begins, and he is left to decide whether the asserted majority is, in truth, the real and lawful majority. This construction was recognized in People, ex rel. Rogers, v. Spencer, 55 N.Y. 1, cited in the prevailing opinion. The language of the court was carefully phrased so as to avoid giving countenance to the idea that jurisdiction depended in any manner upon the truth of the allegations.
These views clear the way to what I conceive to be the true question to be considered, which is the sufficiency of the petition on its face, and that alone. There were about two hundred signers in all. Fifty or sixty of them signed upon condition; one hundred and fifty absolutely and without condition. The county judge could not judicially know that the one hundred and fifty were not a majority in number and amount of the whole number of tax payers on the assessment-roll. They, at least, signed absolutely. If the other fifty names had not been signed at all, the petition signed by the one hundred and fifty would assuredly have given jurisdiction. The proposition then comes down to this: that the consent of the one hundred and fifty is annulled by the presence on the same paper of the names of fifty persons who did not legally consent at all. To my mind the suggestion is a very serious one, because necessarily the same result would follow if but one name had a condition attached, and a case might arise where, of five hundred tax payers in a town, four hundred and ninety-nine signed absolutely and one upon condition, and because of that one consent which was not a consent, legally considered, the bonding would be void for want of jurisdiction. It seems to me that if, as is contended, the fifty who did not sign absolutely did not consent, then simply the petition must be treated as not signed by them at all. The condition which *Page 422 annulled their consent could have no greater force than if they had withheld their names entirely, and in that event jurisdiction would have been obtained. I cannot help regarding it as an unsound proposition that the lawful application of the one hundred and fifty is vitiated because fifty more undertook to join in, but failed legally to express their consent. That failure might or might not become important upon the hearing after jurisdiction obtained; for the statute itself permits, upon that hearing, tax payers, who did not join in the petition, to come in before the court and signify their consent, and make that consent effective. And this provision is very strong proof that the county judge is not barred from jurisdiction to inquire, because he sees on the face of the paper a mode of signature which may or may not affect the ultimate result of his inquiry.
But I have not as yet done full justice to the doctrine of the majority. It has another phase, which seems to me the only one having any real importance. It is claimed that the petition asserts merely, and verifies merely, that the whole number of signers constitute a majority of the tax payers; and since some of them signed ineffectively and cannot be counted, it follows that the petition does not allege nor verify that the remainder still constitute a majority. This is a technical and artificial construction of the language of the petition, and impresses upon it a meaning which does not at all belong to it. If it be a sound construction it probably destroys every bonding petition which has ever been presented, since it is difficult to imagine that any one application has been made which did not contain some one defective, or invalid, or ineffectual consent. The question, therefore, assumes a very grave importance. The position of my brethren with whom I differ rests upon the words in the petition "the undersigned," which are assumed to mean "the whole of the undersigned," or all of them taken together, without rejection of a single name. No such meaning belongs to the phrase as used in the petition, nor was it within the contemplation of the applicants or the affiant. The latter did not mean to verify that persons desired to bond the town whose signature, with a condition, showed *Page 423 that they did not legally desire it at all. What he did mean, and what he must be held to have verified, is, that enough of "the undersigned" had consented, that is, effectively consented, to constitute a majority in number and amount of the tax payers. He swears simply, and the petition avers, that there, on the paper, are the names of a majority who desire the bonds to be issued. The petition does not say, and was not required to say, how large a majority. It does not purport that every name attached is essential to the existence of such majority. It does not warrant, at the peril of a total failure of the application, that there is no name among "the undersigned" ineffectively signed. It does not assert that there is a bare majority which will not admit of the rejection of a single name. What the petition asserts, and what the affiant verifies is, that there, before the county judge, lie the consents of a majority of the tax payers; that a majority have consented, have expressed their desire, and have done so effectively. No other construction is either reasonable or just, and the technical one, asserted after ten years of silence and payment by the town, should be rejected.
But I go further even than this. I am satisfied that upon the technical construction, which I reject, the allegations of the petition and of the affiant were sufficient. The county judge had no right to assume that the desire of the fifty-three signers to bond the town was annulled or effaced by the condition annexed, and that these signatures were not effective, and could not be counted. Let it be steadily borne in mind that the precise question here is whether the petition gave to the county judge jurisdiction to institute an inquiry. When he made his final order the act of 1871 was in force, and the conditional desires were lawful and could be effectively counted, so that what transpired six days before that act took effect was that the county judge received the petition, and gave the required notice that he should proceed to inquire into its truth. Had he jurisdiction to institute that inquiry is, therefore, the exact question before us. I maintain that, at that point of the proceeding, the county judge had no right to reject the names of *Page 424 the fifty-three conditional signers as ineffective and invalid, nor have we any such right on this appeal. Thirty-seven persons on one paper added "on condition that said road is located by Fish lake and Shavertown." Six more added the same condition, appending only after the word "Shavertown," the words "or village." And ten more said "above conditions shall be null and void unless said road shall be located by Shavertown and Lumberville." The word "conditions" I am ready to concede is a misprint for, or at least means "consents." Now, as this petition, treated as a whole, lay before the county judge, I insist that it was "absolute in form." As signed by the one hundred and fifty it was certainly so. The conditional signers were on separate papers, and added to the absolute form a qualifying condition. But this qualification affected only their individual signatures, and not at all the averment of the petition, or the scope of the verification. The legal effect was the same as if there had been but one paper, absolute in form, which the whole two hundred had signed, but fifty-three signatures had conditions annexed to their individual names. The consequence would be to affect the validity of those signatures, but not the absolute averment of the petition, or assertion of the verification. These would still allege that the undersigned constituted a majority and desired the bonding, that is, absolutely desired it. The county judge might think the averment untrue on observing the conditional signatures, but for the purpose of jurisdiction to inquire, the question of truth or falsity was not before him. The averment of an absolute desire by the signers constituting a majority was there, and no refinement can argue it out. Whether it was true or not by reason of conditional signatures was one of the very questions to be investigated after inquiry begun. Indeed, with the paper before him, the county judge could not even say that the conditional signatures did not express and absolute desire for the issue of bonds in aid of the railroad, and operate as absolute consents to such issue. With nothing before him but the paper and its verified averments had he a right to assume, or can we decide that it was his duty to assume, that the conditions *Page 425 were not already performed when the consents were signed, and so the consents were not in fact absolute? For a condition already performed in no manner qualifies the consent. In such event the consent is absolute the instant it is given. If I should follow the example set by the prevailing opinion, and resort to the evidence on this trial for information, I should discover that the railroad was in fact located on the precise line indicated by the conditions, and nothing appears anywhere to show that it was not so located at the very moment the conditional signers appended their names, they not having seen the map filed and knowing nothing of the exact alignment. But without doing what I hold to be improper, it is still true that when the county judge was presented with the petition and asked to enter upon the inquiry authorized by law, he had no right to assume that the conditional signatures were not in truth absolute, that the condition had not been performed already, and so was extinguished and did not qualify the consents. The petitioners asserted that they all consented, or rather, following the precise phrase of the statute, that they all desired the creation and issue of the bonds. Their allegation gave jurisdiction, since the county judge could not say, in advance of inquiry and proof, that every signature was not the expression of an absolute desire; since he could not know that the condition was unperformed; since it was the right of the fifty-three to insist that they should be counted, and to prove the facts on the hearing which should establish that right. The officer could not say as matter of law that those signatures were ineffectual to set in motion a judicial inquiry whether in fact a majority had legally consented; for I think it not at all doubtful if the act of 1871 had never been passed, but it was proved on the hearing that when the petition was presented the railroad company had already actually located their line in accordance with the alleged conditions, utterly uninfluenced and unaffected by them, because not then in existence, and so without any question of public policy to intervene, that in such case the entire consents could be counted as all absolute, unqualified *Page 426 and dependent upon nothing in the future for their efficacy.
Upon our consultation over this case I expressed the opinion that the act of 1870 legalized conditions, and that the suggestion of Judge DANIELS to that effect in People, ex rel.Hoag, v. Peck (4 Lans. 528) was correct. I still think so, but prefer, without discussing that question, to put my dissent upon the broader grounds which have been stated.
I think the order of the General Term was right and should be affirmed.
RAPALLO, ANDREWS and EARL, JJ., concur with DANFORTH, J.; RUGER, Ch. J., and MILLER, J., concur with FINCH, J.
Order reversed and judgment affirmed.