Fellows v. Denniston.

The general tenor of the detailed provisions for the assessment, return, advertising and sale of non-resident lands for taxes would carry the idea that the description first given in making the assessment was to be followed throughout, though this is not said in terms. But it would be extremely difficult, if not wholly impracticable, to apply this rule under such cir cumstances as those here presented. A tract of about fifty thousand acres is assessed for a large amount in gross; then parcels of the same tract containing six thousand, eight thousand, nine thousand, and ten thousand, are separately assessed; then the whole is divided into nearly five hundred lots, and each lot is separately assessed; it may be for unequal sums. No single sale of each parcel would operate justly, unless it could be first ascertained what portion of the whole burden such parcel ought to bear. We are of opinion that the statute contains principles which may be applied to the case, and which justify the course which has been pursued. I refer to section 47 of the title relating to the collection of taxes, &c. (1 R. S., 406), which provides that "whenever a sum in gross is assessed upon any tract, &c., of land, any person claiming a divided or undivided part thereof may pay to the Treasurer any part of the tax, interest and charges thereon, proportionate to the number of acres claimed by him, on the certificate of the Comptroller; and the remaining tax, interest and charges shall be a lien on the residue of the land only." The next section provides that, of the tract so subdivided, the person wishing to pay the tax upon a divided part of it shall deliver to the Comptroller a map of "the subdivision, if required by him.” (§ 28.) This provision allows the public officers to assume, for the purpose of receiving payment of taxes, that every acre of a tract of land assessed in gross is equal in value to every other In many cases, doubtless, the fact would be otherwise; but the legislature looked to the practical working of the machinery they were organizing, and, as it seems to us, they determined upon the principle that every part of a tract assessed was to be considered equally valuable. They did not, in terms, apply the rule to the case now before us; but, if it was not

acre.

Starin v. The Town of Genoa.

unjust to resort to it in the case of a voluntary payment by a part owner of a parcel of land assessed in gross, it would be equally fair to make use of it when the land came to be sold. If the apportionment to the several lots could not be made in this case, it would be equally impossible to do it if it were shown that each lot had a separate owner. If there were no other way than to sell the tract in gross in such a case, it would inevitably happen that the whole of some of the lots would be sold to pay the incumbrance resting equally upon all, while the others would be left untouched, and would be discharged from the lien. We are of opinion, therefore, that the sale which was made of this reservation was valid.

The judgment of the Supreme Court, holding that the plaintiffs were not entitled to relief upon any part of the case, must be reversed, and judgment must be given in accordance with this opinion, without costs to either party in this court. Should the counsel fail to agree upon the language of the judgment to be entered, it will be settled by the judge by whom the opinion has been prepared.

The act (ch. 375 of 1852) authorizing any town of Cayuga to borrow money to aid in the construction of a railroad upon the written consent of twothirds of the resident taxpayers, is constitutional and valid.

The act is not within the objection that it submits any legislative question to the town. All that is submitted is, whether it is expedient for the town to exercise a new power conferred upon it absolutely by the legis lature.

Starin v. The Town of Genoa.

The act authorizing the town officers to borrow money at a rate of interest not exceeding seven per cent, and pay it over to the railroad corporation, taking in exchange thereof the stock of such corporation at par, it is not within their power to exchange the bonds of the town for an equal nominal amount of stock, leaving it in the power of the corporation to sell such stock at a discount.

One who purchased the bonds from the railroad corporation at a discount, with knowledge that the corporation had received them in direct exchange for its stock, is not a bona fide holder, and takes the bonds subject to any other defence existing against them.

The plaintiff is bound to prove, affirmatively, that the written assent of the requisite number of resident taxpayers, was, in point of fact obtained and filed in the county clerk's office, as required by the statute. The town is not bound by the representation of its officers, upon the face of the bonds, that such assent had been obtained and filed. Such representation is of a fact which goes to the constitution of the agency, and which is of no effect as against the alleged principal.

Where the act required that the officers, to issue the bonds, should first file, with the written assent of the taxpayers, their affidavit that the persons, whose assent were thereto attached, comprised two-thirds of all the resident taxpayers, such affidavit is not evidence of the requisite assent in the absence of a provision of the statute making it such.

The case of The Bank of Rome v. The Village of Rome (19 N. Y., 20), considered and distinguished upon this point. Chapter 272 of 1851 gave the authority to borrow to certain officers of the town of Sterling, who are named in the act, upon obtaining the assent of two-thirds of the resident taxpayers appearing on the last assessmentroll. It provided for the issue of bonds bearing interest payable annually in 1852, and each of the three succeeding years, and required the supervisors of the county to levy the amount of such interest on the town: Held, that chapter 605 of 1853, amending such act by giving the power to the supervisor and railroad commissioners of the town to issue bonds with provisions and stipulations for the payment of semi-annual interest, operates to modify the entire act of 1851, so as to substitute the year 1853 for the year 1851, and to adapt the other provisions to this change. Accordingly, bonds purporting on their face to be issued under the act of 1851, by the official successors, in 1853, of the persons named in the act of 1851, and in conformity to the act of 1853, as above construed, are to be deemed valid as against the objection that the power could only be exercised by the persons and in the manner prescribed by the original

act.

APPEAL from the Supreme Court. Action to recover instalments of interest claimed to be due on two alleged obligations

Starin v. The Town of Genoa.

in writing, executed as hereinafter stated. On the trial, the judge directed a verdict for the plaintiff.

These facts appeared: On the 16th of April, 1852, the legis lature passed an act (Laws of 1852, ch. 375), the first section of which provides that it should be lawful for the supervisor of any town of Cayuga county, and the assessors of said town, who were appointed commissioners to act, in conjunction with the said supervisor, in effecting and executing the purposes of the act, to borrow, on the faith and credit of such town, such sum of money as they might deem necessary, not exceeding $25,000, for a term not exceeding twenty years, at a rate of interest not exceeding seven per cent per annum, payable annually or semi-annually: and to execute therefor, under their official signatures, a bond or bonds for the payment of the principal and interest of such loan, in such sums and at such times and place as should be agreed upon and expressed in the bonds to be executed under the authority of the act. All the money borrowed under the act was to be paid over to the president and directors of such railroad company, then or thereafter to be organized under the general railroad law, as might be expressed by the written assent of two thirds of the resident. taxpayers of the town: to be expended by such railroad company in grading, constructing and maintaining a railroad or railroads passing through the city of Auburn and connecting Lake Ontario with the Susquehanna and Cayuga railroad or the New York and Erie railroad; but it was expressly provided that the supervisor and commissioners should have no power to do any of the acts authorized by said act until a railroad company had been duly organized, according to the requirements of the general railroad law, for the purpose of constructing the described railroad, and the written assent of two-thirds of the resident persons taxed in said town, as appearing on the assessment-roll of such town made next previous to the time such money should be borrowed, had been obtained by such supervisor and commissioners, or some one or more of them, and filed in the clerk's office of Cayuga county, together with the affidavit of such supervisor or comSMITH.-VOL. IX.

56

Starin v. The Town of Genoa.

missioners or any two of them, attached to such statement, to the effect that the persons whose written assents were thereto attached and filed comprised two-thirds of all the resident taxpayers of said town on its assessment-roll next previous thereto.

The second section of the act provided that it should be lawful for the supervisor and commissioners, on obtaining and filing the assents, as provided in the first section, to subscribe for and take, in the name of and for such town such a number of the shares of the capital stock of such railroad company as would be equal to the amount of bonds executed under the authority of the act; or, instead of borrowing such money and issuing such bonds, with the like assent of two-thirds of such taxpayers, to raise the amount of its subscription by tax upon the taxable property of such town, to be levied and collected by the supervisors of the said county in the manner specified in the act, and in such sums as they might determine and direct.

The third section provides, in case any town became a stockholder in said company, that the supervisor of the town should be allowed to participate and act in all the regularly and legally organized meetings of the stockholders of such railroad company, in the name of and for the town, with the same powers and privileges as personal stockholders.

Several provisions were then made to secure the payment of the principal and interest of the money that might be borrowed, and for other objects which it is unnecessary to notice.

Measures were taken in Genoa, one of the towns of said county, to borrow money under the said act; and certain instruments in writing (twenty-five in all), denominated bonds in the complaint (and which will, for convenience, be so designated herein), but not under seal, and purporting to have been executed under the authority of the said act, were issued. They bore date the 26th day of February, 1853, and the town of Genoa, in each of them, acknowledged that it owed, and promised to pay, $1,000 to Ashbel Avery or bearer, at the expiration of twenty years from the first day of January, 1853,