People Ex Rel. Haines v. Smith , 45 N.Y. 772 ( 1871 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The counsel for the appellant insists that, the county judge having made his decision, and a judgment in pursuance thereof having been rendered and the record filed with the county clerk, before the writ of certiorari was sued out, the proceeding was not, at the time of the service of the writ, pending before him, and that the judgment was not, therefore, removed into the Supreme Court by the writ directed to him. In support of this position, the counsel cites the case entitled The People v.The Comm'rs of Highways of East Hampton (30 N.Y., 72). That case has no analogy to the present. That was a certiorari to a jury impanneled to determine whether the fence of the relator encroached upon the highway, and if so, to what extent. The jury, having made their certificate specifying the encroachment, had nothing further to do in the premises; and the court rightly held, that a certiorari could not be sued out directed to them, and, that if it was, and served upon them, the order of the commissioners of highways declaring and specifying the encroachment, not being in their possession, or control, could not be returned, and that if it was in some way returned, such return was a nullity. The case shows, that in some way, but it does not appear for what purpose, the commissioners of highways appeared in the matter in the Supreme Court. The court held, that such appearance was unauthorized, the writ not being directed to them, and that the writ should have been quashed. In the present case, the statute authorized and required the county judge, upon the presentation of the petition after publication of the requisite notice, to proceed judicially to take proof concerning and to determine certain facts and render judgment thereon, which was to have the like force as other judgments, as evidence of the facts determined. The statute is silent as to when or with whom the record of the judgment should be filed. The judgment was rendered by the county judge, and he was the proper officer to whom to direct the writ, and he was properly required thereby to make return of the proceedings had before, and the judgment rendered by him to the justices of the Supreme Court, pursuant to the mandate of the writ. The result would have been the same had the statute required the record of the judgment to be filed with the county clerk, or with any other officer. Such officer, for the purposes of a review, would have been regarded as the clerk of the judge, for the purpose of preserving the record of a judgment rendered by him. The proceedings were, therefore, properly before the Supreme Court for the purpose of a review. Whatever may have been the conflict of authority heretofore upon the question, whether, upon a common-law certiorari, the court can inquire into anything beyond the jurisdiction of the tribunal over the parties and subject-matter, it must now be regarded as settled, in this State, that it is the duty of the court, in addition thereto, to examine the evidence and determine whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether, in making it, any rule of law affecting the rights of the parties has been violated. (The People v. The Board of Metropolitan Police,39 N Y, 506; The People v. The Assessors of the City of Albany,40 N.Y., 154.) Section 2, vol. 2 of Laws of 1869, p. 2304, makes it the duty of the county judge, after the presentation of the petition specified in section one of the act and the publication of the notice thereby required, to take proof, as to whether the petitioners and such other tax-payers of the town as may then and there appear before him and express a desire to join as petitioners in said petition, are a majority in number of the tax-payers of the town, as shown by the last preceding assessment-roll, and represent a majority of the taxable property upon said roll. The assessment-roll is made the only competent evidence of the number of tax-payers and of the amount of taxable property in the town. It is conclusive upon these points. The only questions upon which proof is to be taken by the county judge, and which are to be determined by him, are whether the petitioners and such others as appear before the judge and express a desire to join in the petition constitute a majority in number of the tax-payers, and whether they are liable to taxation as owners of a majority of the property assessed for that purpose in the town. The correct determination of these questions is of grave importance, as upon it may depend the creation of a debt against the town to the extent of one-fifth of all the property taxable therein. The policy of the statute is to make such determination final. Competent common-law evidence of the facts to be established should be produced. The statute authorizes no other. It must be borne in mind, that the determination is final, not only as to taxable inhabitants who appear and contest the fact, but equally so as to those who do not appear. It follows that the admission of those who appear, or of any one authorized by them to act as counsel, or any other act done or omitted by them, cannot be regarded as any evidence upon the inquiry, as those appearing do not represent those who do not appear and cannot do anything to affect their rights. The signatures to the petition by the petitioners, found as such by the judge, were proved, but the persons proving the genuineness of such signatures give no testimony tending to identify such petitioners with persons assessed upon the roll, except Hiram Peck. The counsel for the appellant insists that his testimony may be construed in the light of the objections made to its competency, insisting that such objections show how it was understood by the counsel of the contestants, who appeared before the judge. The answer to this is, that it is immaterial how the counsel understood it. The inquiry is, what does the language used by the witness show that he intended to be understood as testifying to? The question was, state whether the names of the persons appearing on the petitions appear as tax-payers on the tax list of the town of Phelps for the year 1869. The answer was, yes, with certain exceptions. There are several names on the petition where no amount is carried out, and they are not counted in the number of names or amounts. I have carried out the amount assessed to each individual. The figures set opposite the names of petitioners are the amount they are assessed on the assessment roll. No one could have understood the witness as testifying to any personal knowledge of the identity of the petitioners with the persons named upon the roll. His clear meaning was that he had compared the roll with the petition, and from such comparison had formed the conclusion that the names designated the same persons upon both, so far as they appeared upon both. Both were before the judge, and copies of each, so far as this question is concerned, are contained in the case. Upon comparison it appears that the surnames are the same in both, to an extent sufficient to sustain the judgment as to the number and amount of property of the petitioners, but upon the petition an initial letter only is put down as the Christian name, while upon the roll the name at length appears, to an extent sufficient to show that the petitioners were a minority in number of the tax-payers, and were not assessed for half the amount of property upon the roll, unless the latter are included as petitioners. Where the names upon both were identical, it wasprima facie evidence that the persons upon each were the same. (Hatcher v. Racheleau, 18 N.Y., 86.) But where the names are not identical, both upon reason and authority, no such presumption arises. In case of identity of name, the presumption arises from the improbability that different persons have the same name, and therefore the onus is cast upon the party denying the identity to show that it is a different person. But an initial letter may denote any one of a great number of names, and, unaided by proof of any other fact, designate the person with but little more certainty than as though the name abbreviated by the initial was wholly omitted. It was accordingly held in The People v. Ferguson (8 Cow., 102) that it might well be doubted whether H.F. Yates represented Henry Fry Yates or some other Yates whose Christian name was represented by the same letters, but that it might by proof of other facts be shown that Henry Fry Yates was the person really intended. It requires no argument to show that a given fact cannot be proved by proof of another fact, showing that the one sought to be proved is doubtful; such proof furnishes no evidence of the fact sought to be proved. The rule adopted in The People v. Yates has since been followed in this State. It was not designed by the remarks of SELDEN, Judge, in The People v. Pease (27 N.Y., 45), to the effect that the canvassers erred in refusing to allow to the relator (Moses M. Smith) votes for M.M. Smith, to innovate upon this rule. The learned judge directly thereafter cites ThePeople v. Ferguson, without any expression of disapprobation. What he intended was, that from the facts proved upon the trial, it appeared that Moses M. Smith was the person for whom the votes were intended, and hence the error. But the facts proved upon the trial may have been known to the canvassers, and if they had the right to take such facts into consideration, in canvassing the votes, it would not aid the appellant. It is clear from the statute that the judge could not act upon his personal knowledge of any fact, but must be governed by the proof given in making his determination. The counsel for the appellant insists that the petition and affidavits, verifying the same, were made evidence of the facts, for the reason that they were given in evidence by the counsel of those appearing to contest such facts. But we have already seen that the counsel could not, by any act, affect the rights of those not appearing, and their rights are to be considered by the court, equally with those appearing, in determining the case. The Supreme Court was right in reversing the judgment of the county judge. I was inclined to remand the case to the county judge to proceed thereon de novo, pursuant to sec. 4, chap. 725, Laws of 1871, but a perusal of the case shows that, upon the hearing, the contestants offered to produce petitioners who desired to withdraw their names from the petition. To what extent petitioners desired to withdraw does not appear, but it may have been to an extent sufficient to change the result, even had it been proved that the names represented by initials were identical with those of tax-payers, when the name appeared in full upon the roll. Without determining whether those signing had a right to withdraw as petitioners, after it has been presented to the judge, yet their desire so to do may well be considered by the court in determining whether to remand the case to the county judge for further proof, no vested right having attached in consequence of the proceedings already taken. The town ought not to be bonded, unless in compliance with the present wishes of a majority of the tax-payers, taxable upon a majority of the property assessed in the town.