THE TOWN OF DUANESBURGH vs. NATHANIEL C. JENKINS, 41.24 as commissioner, and THE ALBANY AND SUSQUEHANNA RAIL ROAD COMPANY.

The power to subscribe for rail road stock, or to issue bonds for the purchase of such stock, or the payment of subscriptions therefor, is not one of the general powers possessed by towns. Before any such acts can be done by the officers of a town, or any commissioner in its name, the power must be conferred by act of the legislature.

The legislature may grant such power; which may be either general or special. And the legislature, in granting it, may impose as many conditions, limitations and restrictions as it shall deem proper.

Where the power, given by the legislature to a town to subscribe for stock in a rail road company and to issue its bonds therefor, was on condition, 1. That twelve or more freeholders, residents of the town, should apply to the county judge for the appointment of commissioners; 2. That the consent in writing of a majority in number and amount of the resident taxpayers of said town to such subscription and issuing of bonds, designating the amount, should be first obtained; Held that such application and consent were pre-requisites or conditions precedent to the authority of the town to take stock and issue bonds; and that such authority, being in excess of the ordinary and general powers of towns, no jurisdiction could be acquired without complying with the conditions imposed.

Persons receiving bonds issued by towns are presumed to know the law, and
are bound at their peril to ascertain whether the statute, authorizing their
creation, has been complied with.

Where a statute authorizing a town to subscribe for rail road stock declared
that it should be lawful for the commissioner to act, provided the con-
sent in writing of a majority of the tax-payers appearing upon the last
assessment roll should first be obtained. Held that the term "the last assess-
ment roll," as used in the statute, and in an amendment thereto, referred
not to the passage of the acts, but to the time of the subscription for stock
by the town, and the intent was that if a majority of the then property
owners of the town were willing to have their estates encumbered for such
purpose, and said so in writing, the commissioner might incur the debt.
If bonds are issued by a town without the consents required by the statute
having been obtained, they are void, at least in the hands of the rail road
company to whom they are issued, if not in the hands of every subsequent
holder.

Requisites of the affidavits proving that the written assent of the requisite
number of resident tax-payers, to a town subscription for rail road stock,
has been obtained.

THIS

Town of Duanesburgh v. Jenkins.

THIS was an action commenced to restrain the defendants from negotiating certain bonds, issued by the defendant Jenkins, as commissioner of the town of Duanesburgh. A temporary injunction was obtained, upon the complaint and affidavits, restraining the defendants from disposing of, or transferring said bonds, until the decision of a motion upon an order to show cause; and at the same time an order was granted requiring the defendants to show cause at a special term therein named, why such injunction should not be continued until judgment in the action.

The motion came on to be heard, upon the aforesaid papers, and upon affidavits in opposition, at a special term held on the 30th of June, 1862, when the motion was denied and the temporary injunction dissolved. From this order the

plaintiff appealed.

The facts, as set forth in the complaint and affidavits, are these: The defendant, the Albany and Susquehanna Rail Road Company, is a body corporate, organized previous to 1853, for the purpose of constructing and operating a rail road from the Hudson river, at Albany, through the counties of Schenectady, Otsego, Delaware, Chenango and Broome, to Binghamton. In 1856, an act of the legislature was passed, authorizing any town in said counties to borrow money on its credit to aid in the construction of said rail road. The first section provided that on the application in writing of twelve or more freeholders, residents of any such town, it should be the duty of the county judge of the county where such town was situate, to appoint, &c. not more than three freeholders, residents of said town, commissioners to carry into effect the purposes of said act. The second section declared that it should be lawful for said commissioners to borrow on the faith and credit of such town, provided the consent in writing of two-thirds of the tax-payers, representing two-thirds of the taxable property of said town, appearing upon the last assessment roll, should, be first obtained, proof of which should be by affidavit of one of said commis

Town of Duanesburgh v. Jenkins.

sioners, filed in the town and county clerks' offices, any sum not exceeding $100,000, &c. and to execute bonds therefor, under their hands and seals. The other sections provided for the sale and disposition of such bonds, the investment of the money, the right of said towns to become stockholders, to dispose of stock, and to raise money to meet the payment of principal, interest, &c. &c.

In 1857, the first, second, third, fourth and sixth sections of said act were amended, the second section of which now reads as follows: "It shall be lawful for said commissioner or commissioners to borrow, on the faith and credit of such town, provided the consent in writing of a majority of the tax-payers, their heirs or legal representatives, representing a majority of the taxable property in said town, appearing upon the last assessment roll, shall first be obtained, proof of which shall be by affidavit, filed in the town and county clerks' offices, any sum not exceeding $100,000, &c. &c.; and in case the said consents, in whole or in part, shall have been obtained under the assessment rolls of the years 1855 or 1856, the same may be used and completed with like effect, and shall be as valid as if obtained under the last assessment rolls next preceding the said subscription, provided the consents subscribed shall represent a majority in amount of the said last assessment roll."

In 1859 another act was passed by the legislature, entitled "An act to increase the capital stock of the Albany and Susquehanna Rail Road Company," &c., containing the following sections: "Sec. 2. Any town now authorized to subscribe to the capital stock of said company, whenever the proofs shall have been filed in the clerk's office of the consent, in writing, of a majority of the tax-payers, their heirs or legal representatives, representing a majority of the taxable property of said town, in pursuance of an act passed in 1856 and amended in 1857, authorizing a subscription by the commissioners in the corporate name of said town, to the capital of said company [may subscribe to said capital stock]; such

Town of Duanesburgh v. Jenkins.

subscription shall be made by the commissioners," &c. and they may issue the bonds authorized by said act, &c. "Sec. 6. All bonds issued by the commissioners of the several towns shall be valid and binding upon the town represented by such commissioners, in the hands of bona fide holders or owners thereof."

In 1863, an act amendatory of the several acts authorizing town subscriptions to the stock of said corporation, was passed, the first section of which reads as follows: "In any case where the commissioners of any town authorized to subscribe to the stock of the Albany and Susquehanna Rail Road Company, shall have filed in the town and county clerks' offices proof by affidavit of the consent of a majority. of the tax-payers, their heirs or legal representatives, of such town, preliminary to a subscription on behalf of said town to the stock of said company, such proof by affidavit shall be valid and conclusive to authorize said subscription to the stock and bonds to the amount specified in such proof, and any clerical or other defect in such proof by affidavit, shall not invalidate it."

On the 6th day of May, 1862, the defendant, Nathaniel C. Jenkins, was appointed a commissioner for the town of Duanesburgh, under the acts above cited, and accepted the trust. On the 13th day of the same month, he caused to be filed in the clerks' offices of the town of Duanesburgh and the county of Schenectady, the affidavits of John D. Wood, Charles Courter, Nathaniel C. Jenkins, Joseph H. Ramsey, Benjamin F. Wood and Ira Marsh, all sworn to on the 5th day of May, 1862; and two further affidavits of Nathaniel C. Jenkins, one sworn to on the 14th and the other on the 15th of May, 1862, which are claimed to be proof by affidavit of the consent in writing of a majority in number and amount of the resident tax-payers of said town, as per the assessment roll of 1855, being the last assessment roll of said town previous to the passage of the act of 1856; and the said commissioner thereupon subscribed to the stock of said rail road VOL. XL. 37

Town of Duanesburgh v. Jenkins.

corporation for said town, the sum of $30,000, issued the bonds of said town therefor, and on the 26th day of May, 1862, delivered the same to the treasurer of said corporation.

It is averred in the sworn complaint, and not denied in the opposing affidavits, that the consent of a majority in number and amount of the resident tax-payers of said town, according to the assessment roll of 1861, the last assessment roll preceding the issuing of the bonds, had not been obtained to the issuing of said bonds, and that no affidavits have been filed, as required by statute, purporting to show the consent of such majority, according to the assessment roll of 1861.

The plaintiff further shows that a number of the persons 'named in the affidavits on file as consenting, are dead, and are not upon the assessment roll of 1861; and that a number of others are not on said assessment roll; that some of the persons consenting appear twice in said affidavits; that the persons named in said affidavits as consenting, represent but one-third of the resident taxable property, according to the roll of 1861.

The affidavits filed are substantially in one form, and the affiant states "that the affiant was present when the following named persons, tax-payers, their heirs or legal representatives," &c. &c. "appearing upon the assessment roll of 1855, subscribed, or authorized to be subscribed their consent in writing," &c. &c. giving the names of individuals, without any designation who are heirs, and who representatives, who subscribed, or who authorized their names to be subscribed.

The affidavit of the defendant Jenkins, sworn to on the 14th day of May, 1862, says that the persons named in the annexed affidavits, (the affidavits filed,) compose a majority of the resident tax-payers of said town, their heirs or legal representatives, representing a majority of the property owned by, or taxed to, resident tax-payers of said town appearing on the assessment roll of said town, for the year 1855, that being the last assessment roll prior to the commencement of obtaining the consent in writing of the tax-payers, &c. and