The opinion
Potter, J., (dissenting.)
The act under which these proceedings are instituted, authorized the divesting of individuals of their estates by unusual methods, not known to the common law, and not known to general provisions of the statutes. It is a proceeding by special statute authority, and in derogation of the principles of the common law. In all such cases, jurisdiction can only be obtained by the strictest observance of the statute authority; nothing can be made out by intendment. The due execution and observance of the power granted must be shown; and in such cases there is no presumption that public officers have done their duty, but every step in the proceeding must be proved to be within the powers conferred by the act. (Sharp v. Speir, 4. Hill, 76. Striker v. Kelly, 2 Denio, 323 . Doughty v. Hope, 3 id. 594. S. C., 1 N. Y. 79 . Adams v. Saratoga and Wash. R. R. Co., 10 N. Y. 330 . Cruger v. Dougherty, Ct. of Appeals, December term, 1870.) I copy the following extract from an unpublished work, soon to appear: “ But it must be kept in mind, however, that whenever, in pursuance of law, the property of an individual is to be divested, by these proceedings, against his' will, there must be a strict compliance with all the provisions of the law, which are made for his protection and benefit. Those provisions must be regarded as in the nature of a condition precedent, which must not only be‘complied with before the right of the property *487 owner is disturbed, but the party claiming authority, under the adverse proceeding, must affirmatively show such compliance.” So, too, it is equally a well settled rule of law, that where á statute requires proof to be made in any proceeding, it must be by legal evidence ; unless from the language of the statute it is intended to be by affidavit; or where, from some qualifying language in the context, it is apparent that the legislature intended some other method of proof than the best legal evidence. (Buffalo and State Line R. R. Co. v. Reynolds, 6 How. Pr. 98. Brown v. Sichman, 9 John. 75, 76 . Terry v. Fargo, 10 id. 114 . Id. 167 .) Things to be proved must be established by competent and satisfactory legal evidence. (1 Greenl. Ev., § 1.) It has lately been decided in the Court of Appeals, “In the matter of the application of the Rens. & Sar. R. R. Co. v. Davis,” (reported in the Albany Law Journal, No. 57,) “ that the taking of private property for public use is in derogation of private rights, and in hostility to the ordinary control of the citizen over his estate, and is not to be extended by implication. To authorize the taking of land under the right of eminent domain, the express authority must be shown.” Guided by these rules in the construction of the act of 1869, (eh. 907,) under which these proceedings were taken, the second section of the act makes it the duty of the judge, at the time and6 place named in the notice, to proceed to talce proof as to the said allegations in said petition, &c. This means legal proof. What were those allegations ? Among other things, they are, that the petitioners are a majority of the taxpayers, or that they represent a majority of the said .taxpayers, and that they desire bonds to be issued; and bonding the town and creating a liability against the town and against the taxable property to the amount of $100,000. These were the things to.be proved, and proved by legal evidence. Such legal proof, I think, was not produced before the county judge, as showed that a majority of the taxpayers *488 and representatives of a majority of them had petitioned for the issuing of these bonds. A considerable portion of the taxable property of that municipality, to. be divested, diminished, or made liable to the proposed tax or liability, belonged to infants, who were represented by guardians.
The property of infants is always, and in an especial manner, under the protection of the court, and every act calculated to affect their interests injuriously, the courts are ever jealous to regard; and whenever the court can discover any dereliction of duty on the part of guardians or trustees of infants, they will be careful to require, at least, "that all the forms of law shall be observed, and they will not allow guardians or trustees to be guilty of devastation of the estates of their wards or cestuis que trust, or to put them at hazard. "Upon the tax roll was an assessment of $2000 against “ the Shepherd children.” This was claimed as a part of the majority of the taxable property petitioning for the bonds. The authority for this petition is the signature of one “ John C. Shepherd, for Shepherd children.” hTo authority was proved. But it is "now said that the county judge did not count this in as a part; and it is alleged that the relators must affirmatively show that he did, in order to predicate error upon it. It is charged, upon oath, that the judge did so count this assessment as a part of the petition of the majority. The certiorari calls upon him to make return of all acts and decisions made by him, and his return entirely omits to state whether or not he did allow the said assessment, and the petition thereon, to be counted with such majority. The burden of showing want of jurisdiction is not with the relators, but by the party claiming" jurisdiction, to show it when called upon. It is not therefore with good grace that, upon such a return, the respondents should seek to cast this burden upon the relators. But, besides this, there is the evidence of Mr. Batehcller, in which he enu *489 merates the names that were omitted, and this is not among the omissions. Another case is that of the Congregational church, whose name is upon the; assessment roll “ Congregational Society,” but who petitioned for the issue of these bonds by the name of the “ First Congregational Society,” |9400, which was signed by Doctor L. E. Whiting, Solon B. Bushnell and Levi S. Packard, under their corporate seal, and authorized by a resolution of the board of trustees. First. There was no legal or other proof before the county judge of the existence of such a corporation' as is represented by the assessment roll, tax list or signatures; and if there had been such evidence, there was no power in this board of trustees to create such a liability against the property of the corporation they represent. A religious corporation, created under the general statute, consists not of trustees alone, but of the whole members of the society. It is the society that is incorporated, not the trustees; and its members are the corporators. The trustees are only the managing agents or officers of the corporation,'in charge of the temporal affairs of the society, with powers specifically conferred by the statute; but with no other powers. They cannot alien, mortgage or incumber the estate of the corporation but by permission of the court, except to mortgage for debt, under certain circumstances. (Robertson v. Bullions, 11 N. Y. 243 .) Their power’s being specified by the statute, this specification excludes all other powers; and to devastate and create liabilities is not among the specified powers. They neither proved to the judge their corporate existence, .nor any power to sign such a petition. The act. of 1869 confers no new power upon them., While it allows, representatives of taxable property to petition, it is to bé construed to mean legal representatives,- especially in an act which would divest individuals or corporations of their estates. The county judge was bound to exclude this petition upon the evidence produced before him. This was *490 to the amount of $9400. Before the act of 1869, so would have stood the case at common law and statute. But it is claimed that there is an express provision in the act of 1869, that allows corporations to become petitioners. This' is true. It permits, however, only solvent corporations so to petition; and the burden of proving solvency.was with the petitioners. This was necessary to confer jurisdiction upon the judge. This was not done. In this case the judge, has presented to us. the proof, but its solvency was not proved.
Another petitioner was that of the Baptist church, representing $740, set forth on the petition, “ S. B. Terwilliger, W. Waterbury, Baptist church.” This authentication is still more defective than that of the Congregational church. The only evidence in this case is, that the two persons named signed the petition. It does not appear that they were even members or trustees of this church; much less, that they were authorized to sign a petition to incumber their property. . The same remarks apply to this case as to that of the Congregational church.
Another petitioner, whose name upon the assessment roll stands as follows: “Weibelzahl, Wm., Mrs. $460.” Upon the petition is the same name, with the addition at the end, “administratrix.” There is no other name on the tax list that resembles this, and the name, “ as administratrix,” added, is allowed to be a petitioner, with no proof that she is such administratrix; nor is. it easy to see how an administratrix can vote to incumber real estate, which generally belongs to the heirs at law.. To entitle her to petition, she must be a legal representative of the real estate assessed.
Another petitioner, whose name was on the assessment roll was “ The Bed Spring Company,” $560. The return does not show by whom this petition was signed; and there is the absence of all evidence that any body was authorized to sign for this company, as well as the want *491 of evidence of solvency, in order to confer jurisdiction upon the judge.
There were several petitioners claiming to represent estates, viz., Simeon H. Barrett’s estate, $600; C. Buell’s estate, $600; Nelson Burnham estate, $360; Wm. Putnam estate, $1,000. There is no legal evidence in the ease that the persons signing the petition legally represented these estates, or had authority to sign the petition. The name of Elvira Putnam appears upon the tax list for $200. The petition is signed by her as administratrix, without evidence of authority, or rather with the presumptive legal evidence that she possessed no authority. Among the petitioners is “ Walter Barrett estate.” What amount of estate this petition represented, cannot be determined, as no such name is found on the assessment roll for 1869; but adjoining, and next to two names of Barrett, is “ Walter Balfour,” and there is no other name upon the roll so nearly resembling it. This name represents $1500. There is either no proof to make this petition good for any amount, or if it represents an estate, there is the additional defect of'proof of authority; or if it is a clerical error, meaning “Balfour,” then it is the representative of $1500. If it be neither of these, the name is not on the tax list. The burden was upon the party claiming jurisdiction.from it to show this, and to show how much he represented by his petition; it may have been received for a very large amount.
There also appeared upon the list of taxable estates the name of George S. Batcheller, guardian, $6666. In this case Mr. Batcheller, being sworn, proved himself to be guardian of the Cook estate, but did not offer any evidence of his authority to .incumber the estate of his ward or to commit devastation of it. He had no authority at common law, or by statute, unless the statute of 1869 can be stretched to authorize the estates of his ward to be thus divested, whi,ch, as we have already stated, is not the rule by which such statutes are to be construed. Had he ap *492 plied to the court for permission so to incumber it, it would have been refused. The same remark will apply to the petition of “John C. Hulbert, guardian,” $2000; to which it may be added, that in the latter case there was no evidence of the existence of guardianship, nor of the name of the estate or persons for whom he was guardian. The name of D. B. Harrington was also included, who was a petitioner to the amount of $6000. This was also proved before the judge, and by the testimony of Mr. Batcheller. His petition was not excepted from the amount estimated as a part of the majority. The name of D. B. Harrington is not upon the assessment roll presented before us, nor any name that resembles it, representing any such sum.
[Third Department, General Term, at Elmira,
April 4, 1871.
The taxable value of the property of the town is, by the assessment roll, $2,318,170; one half of this is $1,159,085
The petitioners allowed by the county judge
seem to be............ 1,189,394
Making a majority upon the petitions of . . 30,304
The errors above pointed out, exclusive of the petition of Walter-Barrett, the amount of
which does not appear, is ...... . 30,586
Falling short of a majority ....... 177
But adding Walter Barrett, upon the assumption of a clerical error in his name .... 1,500
There is a failure of a majority by .... 1,677
If I am right in these views, we need not discuss the other questions in the case. It is a question of jurisdiction. Jurisdiction was questioned; the writ called upon the actors to show their authority; the strictest construction of the statute was demanded.
I think jurisdiction has not been shown, and that the proceedings should be set aside.
Order and judgment of the county judge affirmed, without costs to either party.
Miller, P. J., and Potter and Parker, Justices.]