Morgan v. Board of County Commissioners , 9 Nev. 360 ( 1874 )

By the Court,

Hawley, J.:

The act providing for the government of the towns and cities of this State, approved February 21, 1873, provides that before any of the powers or jurisdiction conferred by the act can be exercised, “there shall have been filed in the clerk’s office of the county in which the same is situated a written petition for the application of the provisions of this act to said town or city, signed by a majority of the actual residents of such town or city, representing at least three-fifths of the taxable property. The genuineness of all signatures to such petition, and the qualifications of the subscribers, shall be established by the affidavits of reliable taxpayers of said town or city, filed with such petition.” Stats. 1873, 74, Sec. 16.

A petition signed by six hundred and eighty-two persons was filed in the clerk’s office of Eureka County, asking the board of county commissioners of said county to apply the provisions of said act to the town of Eureka, situate in said county. This petition was accompanied by the affidavits of J. D. Sullivan, T. J. Maupin, M. Borowsky and J. E. Eamsey. At a meeting held on the 2d day of December, 1873, the board passed an order declaring that the town of Eureka, from and after that date, was subject to the provisions of said act. Respondent claims that the affidavits are fatally defective and thereupon argues that in acting upon said petition and in passing said order the'board exceeded its jurisdiction. The affidavit of Sullivan states “ that he is a resident and tax-payer in Eureka County.” The law requires that the affidavits shall be made by a tax-payer of the town or city. In order to give the board jurisdiction the affidavit must show that the party making it was one of the persons made competent by the law. “It should affirmatively appear that he is such person and he should also swear to the fact.” State v. The Board of County Commissioners of Washoe County, 5 Nev, 320 and authorities there cited. In this respect the affidavit of Sullivan was fatally defective.

The other affidavits are not subject to this objection; but against them it is urged that they are defective; first, in failing to state that the signatures to the petition are genuine; second, that they are made upon information and belief. Each affiant states “that he has examined the signatures” upon the petition, “and the same represents three-fifths of the taxable property, as well as a majority of the actual residents of said town, to the best of his knowledge and belief.” This statement does not establish the fact that said petition is “ signed by a majority of the actual residents,” nor does it affirmatively establish ‘(the genuineness of all signatures to such petition. ” It was the evident intention of the legislature that the facts should be established by the'affidavits of reliable tax-payers acquainted with the facts. The affidavits filed with the petition state nothing explicit. In effect, they amount to nothing more than a statement under oath that affiants know nothing contrary to its truth. It was not intended, that these affidavits should be a mere formal matter. An affidavit which states no fact within the knowledge of the person making it would be of but little weight in any legal proceeding. Such an affidavit doe's not establish any fact required by the law to be established; it makes no statement of facts upon which the minds of the commissioners could be informed, or upon which they could base a decision. "We think, as a general rule, that when the law requires any fact to be established by an affidavit, without prescribing its form, if made upon “information and belief,” it will be insufficient unless it states positively the facts and circumstances upon which such belief is founded. Such is the rule in regard to affidavits for attachments. Cadwell v. Colgate, 7 Barb. 255; Deupree v. Eisenach, 9 Geo. 598; Campbell v. Hall, McCahons (Kan.), 53; Hellman v. Fowler, 24 Ark. 235. So in proceedings to hold to bail. Towers v. Kingston, Browne (Penn.), 35; Matter of Faulkner, 4 Hill, 601; Mosher v. The People, 5 Barb. 578; Blason v. Bruno, 33 Barb. 521; Adamson v. Wood, 5 Black, 449; Dyer v. Flint, 21 Ill. 84; Nelson et al. v. Cutler et al., 3 McLean, 329. And in numerous other cases. Whitlock v. Roth, Code R., Vol. 3 (N. Y.), 142; The People v. Perrin, 1, How. Pr. R. 76; The People v. Tracy, 1 How. Pr. R. 190; Bridgeford v. Steamboat Elk, 6 Mo. 357; Table M. M. Co. v. Defeat M. Co., 4 Nev. 219; State v. O'Flaherty, 7 Nev. 157. This case does not come within any of the exceptions to this rule.

It may have been, as contended by appellant’s counsel, utterly impossible for affiants to state positively the fact, under oath, that said petition was “ signed by a'majority of the actual residents of such town, * * representing at least three-fifths of the taxable property,” until the boundaries of the town had been fixed by the board. It might further be urged that affiants were not invested with the ubiquity and the omniscience to know every man’s signature, and be in possession of the exact amount of his taxable property. The law does not require impossibilities; but it does exact at least the impress of good faith and of probable cause. Every lawyer knows that affidavits are frequently made upon information and belief by mien who really know nothing about the facts. Everybody knows that there is a well defined distinction between a positive affidavit and one founded merely on information and belief. If affiants knew the facts to be true, they should have so stated. If they knew nothing in regard to the facts they should not have made the affidavits. If they had no positive knowledge that the facts were true, but so believed from information, they should have stated their means of knowledge; given the nature and sources of their information, and stated in positive terms the facts and circumstances upon which their belief was founded. The petition and affidavits seem to have been framed with special reference to the evasion of the law instead of a compliance with it. The petition does not purport to be signed by residents or tax-payers of the town, and the affidavits state no facts in explicit or positive terms. They are radically defective in form and substance, and fail to establish any of the facts required by the law to be established before “any of the powers or jurisdiction” conferred by the act could.be exercised. This is not a case, as claimed by appellant, of an irregular exercise of jurisdiction by the board; but a case where there is a total want of jurisdiction. The board had no authority to act until the jurisdictional facts were established as required by the law. If the law had left the question of the sufficiency of the petition to be determined by the board, without affidavits, then it would have been a case similar to that of Hetzel v. The Commissioners of Eureka County, 8 Nev. 359, where the sufficiency of the evidence upon which the board acted could not be inquired into by the writ of certiorari. The petition of respondent clearly shows that he was beneficially interested and entitled to the writ.

The judgment of the district court annulling the proceedings of the board is affirmed.