Mellen v. Town of Lansing

• Decision Date: 12 August 1881
• Citation: 11 F. 820
• Parties: MELLEN v. TOWN OF LANSING.
• Court: U.S. District Court — Northern District of New York

11 F. 820

MELLEN v. TOWN OF LANSING.

United States Circuit Court, N.D. New York.

August 12, 1881

E. C Sprague, for plaintiff.

H. L Comstock, for defendant.

BLATCHFORD C. J.

This suit is brought on coupons cut from bonds purporting to have been issued by the town of Lansing, in Tompkins county, New York, and bearing date December 1, 1871. The coupons sued on are 47 in number, falling due September 1, 1879, cut from 47 bonds, the principal of which bonds amounted to $38,000, the coupons amounting to $1,330. The suit was tried before the court and a jury, and the plaintiff had a verdict, under the direction of the court, for $1,457,59, being the amount of the coupons and interest thereon. The defendant now moves for a new trial on a bill of exceptions, containing exceptions taken at the trial. The bonds state on their face that they are obligations of the town, and that they are issued under the provisions of the act of the legislature of New York passed April 5, 1866, entitled 'An act to facilitate the construction of the New York & Oswego Midland Railroad, and to authorize town to subscribe to the capital stock thereof,' and the several acts amendatory thereof and supplementary thereto, especially the act entitled 'An act to authorize the New York & Oswego Midland Railroad Company to extend its road, and to facilitate the construction thereof,' passed April 5, 1871. The bonds purport to be attested by the hands and seals of three persons, who style themselves 'duly-appointed commissioners of said town of Lansing,' and the bonds state that they have caused each of the annexed coupons to be signed by one of their number.

The statutes set up in the complaint as those under which the town was authorized to issue the bonds, are the said act of April 5, 1866, (Laws of New York, 1866, vol. 1, c. 398, p 874;) the act of May 15, 1867, (Laws of New York, 1867, vol. 2, c. 917, p. 2290;) and the said act of April 5, 1871, (Laws of New York, 1871, vol. 1, c. 298, p. 586.) The complaint alleges that, by the provisions of said acts, the said town was authorized to execute, issue, and deliver said bonds; and it refers to said acts, and makes them a part of the cause of action.

The act of 1866 provides for the appointment, by the county judge of the county in which the town is situated, of not more than three commissioners, to carry into effect the purposes of the act. The commissioners are to execute the bonds under their hands and seals, and to issue them. When issued lawfully, they become the obligations of the town. All the statutes then speak of them as bonds issued by the town. In order to make them bonds of the town there must be commissioners appointed. At the trial the plaintiff offered in evidence a petition to the county judge of Tompkins county, by freeholders and residents of said town, requesting the appointment of the three persons who afterwards executed the bonds, as commissioners to carry into effect the purposes of said acts 'in accordance with the provisions of said acts. ' The defendant objected to the admission in evidence of said petition, on the ground that there was no evidence to show that the county judge had jurisdiction to appoint commissioners for said town, and on the further ground that there was no law giving him such jurisdiction, and that he had no authority whatever to appoint commissioners for said town. The court overruled the objection, and admitted the petition as evidence, and the defendant duly excepted to the ruling, under an objection by the defendant on the same grounds, and a like ruling and exception. A paper was admitted in evidence, signed by the county judge, appointing the said three persons commissioners to carry into effect the purposes of said acts, 'in accordance with the provisions of said acts;' and under a like objection, and a like ruling and exception, the oath of office of the commissioners was admitted in evidence. The coupons sued on, and the 47 bonds, were admitted in evidence, under an objection and exception by the defendant that the county judge had no jurisdiction or authority to appoint any commissioners for said town to act for it in bonding it in aid of said railroad. At the close of the evidence on both sides the defendant requested the court to direct a verdict for it 'on the ground that the county judge had no power to appoint commissioners for the town,' and that 'no action by the railroad company towards the location of its road having been shown, and no determination by the officers of the railroad to build the road on any such route, the road was not located at all. ' The court refused to direct as requested, and the defendant excepted to the ruling. The court directed the jury to find a verdict for the plaintiff for $1,457.59, and the defendant excepted to such ruling or direction, and the jury rendered said verdict.

These proceedings raise the question whether there was any statute authorizing the bonding of the town, either by direct description or otherwise. If there was not, there was no jurisdiction to appoint the commissioners, and there were no commissioners and no bonds. It required special legislative authority to enable the town to issue bonds in aid of the railroad. Even without what is on the face to these bonds, every person taking them or their coupons is referred of the source of authority to issue them in some statute. A bona fide purchaser of them is thus referred, equally with every other taker. There may be no informality or irregularity or fraud or excess of authority in an authorized agent capable of operating to the prejudice of a bona fide holder, but there must be some statute providing for the constitution of authorized agents. Every one is bound to inquire and take notice whether there is, in fact, such a statute. If there is not, there is a total want of jurisdiction and authority in county judge and in commissioners.

There is no authority in the act of 1866 for the issuing of bonds by any town in Tompkins county. That act is confined to towns and cities in eleven counties, which are named, not including Tompkins. The act of 1867, as amended by the act of March 31, 1869, (Laws of New York, 1869, c. 84, p. 142,) authorizes the board of directors of the company to construct a branch railroad from the line of its railroad 'at any point in the counties of Chenango or Madison, through the counties of Chenango, Madison, Cortland, Cayuga, to the city of Auburn, in the county of Cayuga, wherever, in the judgment of the directors, the same shall be for the interest of said corporation;' and also, 'in like manner,' to construct a branch road from the village of Delhi to the line of said road; and also a branch road from the village of Ellensville to the most feasible point upon the line of said road in the county of Sullivan or Orange; and also a branch road in the counties of Madison, Oneida, or Oswego. Then the act, as so amended, gives to towns, cities, and villages along the line of the said branch railroads, or interested in the construction thereof, in any county through which said railroad shall run, 'the same power to issue bonds to aid in the construction thereof' as is given by that act as so amended, and by the said act of 1866. It is not contended by the plaintiff that there is anything in that act of 1867, as so amended, which authorizes the issuing of bonds by any town in Tompkins county.

We come now to the act of 1871, under which the power is asserted to exist. It is provided as follows by section 1 of that act 'The New York & Oswego Midland Railroad Company are hereby authorized and empowered to extend and construct their railroad from the city of Auburn, or from any point on said road, easterly or southerly from said city, upon such route and location, and through such counties, as the board of directors of said company shall deem most feasible and favorable for the construction of said railroad to any point on Lake Erie or the Niagara river. The said New York & Oswego Midland Railroad Company are also authorized and empowered to connect their railroad at any point in the county of Delaware with the Erie Railway, and to locate and construct such spur or branch railroad as shall be deemed necessary by the board of directors of said company to make such connection in the county of Delaware; and the said New York & Oswego Midland Railroad Company are further authorized and empowered to extend and construct the branch road to the village of Delhi; from said village, or some point near the...