The order and judgment of the county judge of Ontario county, appointing commissioners, under chapter 907 of the Laws of 1869, with authority to issue the bonds of the town of Phelps in aid of the Sodus Point and Southern Railroad Company, were properly reversed, for the reasons assigned by the Supreme Court. Other objections were taken, at the hearing before the county judge and upon the *Page 781 argument in this court, relating to the vitality of the law, and the validity and efficacy of any proceedings under it, which, in the view we take of the proceedings, need not be considered. One objection taken before the county judge, not noticed by the Supreme Court, is too important to be passed over in silence, as it may affect very many applications under the act, and if well taken, the irregularity referred to ought not to be encouraged by any implication that might arise from mere silence in respect to it. The power sought to be delegated to a portion of the taxable inhabitants of a municipality to burden and charge the property of all, and subject it to taxation for a purpose foreign to those for which local governments are organized, and with a view to contingent benefits, in respect to which men may differ in opinion, and in aid of works, which in most instances, will more largely benefit some than other portions of the district, alike and equally charged, is one of grave importance, seriously affecting the rights and pecuniary interests of the citizen, and can only be exercised in strict conformity to and by a rigid compliance with the letter and spirit of the act conferring the authority. Nothing can be taken by implication, and the act, as it imposes a burden upon the public, and in a manner deprives the owner of the full control and disposition of his property, by giving to others the power to encumber it, should be strictly construed in favor of the rights of property. I had occasion, quite early in the history of town and city bonding in aid of private corporations, to express my views of the legislation authorizing it; and while the judgment in Clark v. City ofRochester (13 How., 204), as to legislative power, has not received the sanction of the courts, the effect of such a delegation of power to any portion of the electors or tax-payers of a municipality, and the consequences that may follow, are such as call upon courts to scrutinize very closely every attempted exercise of this power, and before giving it a judicial sanction, to see that every requirement of the law has been fulfilled. It may be that many of the works to which municipal aid is given, under the very liberal legislation *Page 782 of the few past years, and perhaps all, may be remunerative in the shape of dividends to the local governments aiding them, or may indirectly compensate the public for the tax that may follow by the increased value of the property in the locality; but this does not affect the principle. It is still the right of every one, until legally deprived of that right, to determine for himself to what extent his property shall be jeoparded or encumbered for such a purpose, or whether the contingent and consequential benefits of any proposed enterprise will justify a contribution or an encumbrance of his property in its aid. While it is for the legislature to decide upon the wisdom and expediency of the enactment of a law, and the province of the court is simply to interpret the act and give it effect according to the intent of the legislature, a statute in derogation of common right will not be extended by implication, but its operation and effect will be confined to the cases within the express language employed, giving it its ordinary signification, in the absence of any evidence that the legislature intended to use it in a different sense. This is the rule of interpretation of the act, as one giving power to the tax-payers. If the act be regarded as conferring special and extraordinary power upon a judicial officer, giving his orders, by which a public debt is authorized to be created, under laws mandatory upon the local governments to raise the money by tax to pay the same and the interest thereon, as occasion may require, the effect of judgments of courts of record, and making them final, unless reviewed within a limited time and by the prescribed process, it must in that view also be looked upon with jealous eye, and receive the strict construction which is given to all laws of that character. Nothing will be intended in support of his acts, but they must be brought clearly within the statute to be sustained. (Davison v. Gill, 1 East, 64; Bigelow v.Stearns, 19 J.R., 39; Hollenbeck v. Fleming, 6 Hill, 303;Schneider v. McFarland, 2 Comst., 459; People v. Reed, 5 Den., 554.)
The act under which these proceedings were had, authorizes a majority of the tax-payers of any municipal corporation, *Page 783 whose names appear upon the last preceding tax list or assessment roll, as owning a majority of the taxable property in the corporate limits, to make application to the county judge, by petition, verified by the affidavit of one of the petitioners, etc., etc. A petition of the tax-payers desiring the creation and issue of the municipal bonds, in aid of the railroad named, is essential to the jurisdiction of the county judge. Without such petition he is without jurisdiction, and his acts and proceedings are nullities. The petition demanded by the act is that of the tax-payer, and the act is not satisfied by the petition of an agent. Perhaps, upon a proper warrant, the name might be signed by another, but it must be the act of the applicant. Under the act permitting judgment creditors to acquire the title of the purchaser of lands sold under a prior execution, the affidavit required to be made by the assignee of a judgment, claiming to redeem, must be by the assignee, and cannot be made by his agent. (People v. Fleming, 2 Comst., 484; and see Exparte Bank ofMonroe, 7 Hill, 177.) The power conferred is personal to the tax-payer, and cannot be delegated by him.
Like the elective franchise, it must be exercised in person, and is not the subject of an agency. If another hand may write the name of the petitioning tax-payer, it must be under a special power for that purpose, so that the act will be the act of the tax-payer and in the exercise of his discretion. The act is of a personal nature, involving a personal trust or confidence, and is incapable of being delegated. A man cannot do homage or fealty by attorney, nor can one having but a bare authority or power, act by attorney. (Com. Dig. Attorney, C., 3.) And when an act is required by statute to be done by the party, if it can be fairly inferred, from the nature of the act, that it was intended to be personally done, it cannot be done by attorney. A person whose consent is requisite to the due execution of a power, cannot authorize another as his attorney to consent to any execution of it. (Hawkins v. Kemp, 3 East, 410; and see Attorney-General v. Scott, 1 Ves. Sr., 407.) The mode of application is pointed *Page 784 out by the statute, to wit: the petition of the tax-payer; and the statute must be followed, and the petition cannot be by an agent. (Sug. on Powers, 223.) A statute authority must in all cases be strictly pursued, and hence a sale by one of two commissioners of loans is void. Both must be present at the sale, and the subsequent execution of a deed by the two will not support the sale. (Powell v. Tuttle, 3 Coms., 396; Olmsted v. Elder, 1 Seld., 144.) Proof was given, under objection, upon the hearing before the county judge, of the signing of several names to the petition in the absence of the individuals, and under a verbal authority given at some previous time. Evidence was given of other signatures made in the presence of the individuals whose names were thus signed. It is not necessary in this case to pass upon the validity of the latter class of signatures; but the practice of receiving proof of the other class cannot be too early or too earnestly condemned.
It requires but little knowledge of human nature and the workings of the human mind to see the great danger resulting from so loose a practice in a matter affecting important interests, public and private, and involving the exercise of deliberate judgment and discretion. A little hesitancy; a diffident dissent; a little want of firmness on the part of the tax-payers; anything short of a very decided and emphatic negative may very well be taken as a consent to the signing of the petition, by an earnest, anxious or interested canvasser for signatures; and when the tax-payer would not have consented to sign for himself, the agent of the enterprise may have drawn from him what he may honestly interpret as an authority to put his name to the petition; and so, upon proof of a casual conversation on the public highway, in which the minds of the interlocutors have not in truth met, as remembered and interpreted by one, this may be effectual to bond a municipality to the extreme limit authorized by law.
Proof of one signature thus made, if allowed, may turn the scale and give the decision in favor of bonding; but if one tax-payer may thus be made a petitioner in his absence, every signature may thus be made, and the municipality will be *Page 785 bonded, not upon the written petition, but proof of the verbal assent of the individuals. This was not the intention and is not the spirit of the act. To give it such an effect would be to deprive the public of the safeguards prescribed by the act, and the tax-payers of all opportunity for that deliberation and discretionary action implied in the requirement of a written petition.
An examination of the evidence discloses some circumstances which should cause distrust of all signatures made pursuant to verbal authority.
It is well known that the location of the route of the road to be aided has much to do with the consent of the tax-payers, and in this, as in every other case, although it is not directly proved that promises were made or verbal consents given, conditioned upon the route, there is enough appearing to indicate that possibly conditional consents may have been obtained, and afterwards acted upon, upon the idea that the road was or would be located to meet the views of the individual thus consenting.
Because proof of these signatures was received, and the names of the individuals counted and allowed by the judge, as well as for the other reasons assigned by my brother GROVER, I am for affirming the judgment of the Supreme Court.
The proceedings ought not to be sent back for a rehearing. Such a discretion should be exercised cautiously, and generally only when the error has been technical and not substantial. In this case it is very evident that at the time of the hearing the requisite number of tax-payers, representing the proper amount of the taxable property of the town, had not consented to the bonding. Since the institution of the proceedings, as appears by the record, some of the petitioners have removed or cannot be found, and others have died, and doubtless there has been a change in many other property interests.
A new assessment roll and tax list has been made, and it is far preferable and eminently just that those now interested in the taxation of the property in the town should be heard, and that the proceedings should be commenced de novo. *Page 786
All concur with GROVER, J. All except GROVER and PECKHAM, JJ. (who express no opinion as to the positions taken by Judge ALLEN), concur with ALLEN, J.
Judgment affirmed.