This being the state of the authorities, I will only add that the fiction which makes two or three corporations out of what is, in fact. one, is established only for the purpose of giving each state its legiiimate control over the charters which it grants, and that the acts and neglects of the corporation are done by it as a whole. It is immaterial, in considering the question of jurisdiction, that the damage complained of was suffered within. the limits of Massachusetts, and that the judgment will bind the corporation in that state. See Uphoff v. Chicago, St. L. <t N. O. R. CQ., supra. Motion to remand grallted.
RICH t1. TOWN OF MENTZ.
(Circuit C01/II't, N. D. New YQ1'k. Beptember, 1883.)
L An act providing for the issue of bonds, and stating that certain parties shall , be deemed tax-payers and others shall not, does not make two c)asses of taxpayers,-it makes one; and a petition alleging that the signers are a majority of the tax-payers of the town is not invalidated by the omission to state the words" not inclnding those taxed for dogs or highway tax only," notwithstanding such negative clause was used in the act providing. for the issue of bonds, and for the reason th'\t, in the word" tax.payer," the al1t expressly excludes persons so taxed.
SAME-ENFORCEMENT OF .illuNICIPAL BONDS BY THE FEDERAL CoURTS.
MUNICIPAL BONDS-OMISSION OF CERTAIN ALLEGATIONS TAX-PAYERS.
A PETITION 011'
In proceedings for the enforcement of payment of municipal bonds, the policy of the federal courts is to sustain, if possible, the validity of the bonds, and they will refuse to invalidate the same, except for grave and serious in1l.rmities. Even where the question which arises is a doubtful one, a construction should be given to the statute which upholds the bonds, rather than one which wvali· dates them in the hands of a bona Me holder.
COXE, J. ThiEl action is upon coupons cut from bonds purporUnR to ha"'e been issued by the defendant. At the trial the plaintiff had a verdict. The defendant now moves for a new trial. The point disputing the sufficiency of the petition is the only one that will be considered: The petition was presented to the county judge.in May, 1872. At that time chapter 925 of the Laws of 1871 was in force. Section 1 pl'ovides: "When,ever a majority of the tax-payers of any municipal corporation in this state' Who are taxed or assessed for property, not including those taxed lor dogs or highway ta:» upon the last preceding assessment roll or taxlist of said, corporation, and who are assessed or taxed, or represent a majority of the taxable property, upon said last assessment roll or tax-list, shall make application to the county judge of the county in which such municipal corporation is situate, by petition, verified by one of the petitioners, setting torth that they are such majority of tax-payers, and are taxed or assessed for
James R. Oox, for plaintiff. F. D. Wright, for defendant.
lUCll V. TOWN OF MENTZ.
or represent such a majority of taxable property, and that they desire, etc. * * * The words' municipal corporation,' when used in this act, shall be construed to mean any city, town, or incorporated village in this state; ltnd the word ·tax-payer' shall mean any corporation or person assessed or taxed for property, either individually or as agent, trustee, guardian, executor, or administrator, or who shall have been intended to have been thus taxed, and shall have paid, or are liable to pay, the tax as hereinbefore provided, or the owner of any non-resident lands, taxed as such, not including those taxed for dogs or highway tax only,' and the 'words ·tax-list or assessment roll,'. when used in this act, shall mean the tax-list or assessment roll of said municipal corporation last completed before the first presentation of fiuch petition to the judgl.' ·
The petition is in the following words:
"To the Honorable, the County Judge of the County of Cayuga, New York: 'fhe petition of the su\)scri\)er!'l hereto respectfnlly shows that they are a majority of the tax-payers of the town of ¥entz, in the county of Cayuga and state of New York, whose names appear npon the last preceding assessment roll or tax-list of said town of Mentz, as OWing or representing a majority of the taxable property in the corporate limits of the said town of Mentz; that they are such a majority of tax-payers, and are taxed or ass6ssed for orr&present such l10 majority of taxable property," etc.
It is argued that the omission of the words "not including those taxed for dogs or highway tax only," from the petition, rendered the whole proceeding before the county judge coram non judice, null, and void. The state courts have adopted this view in senral reported cases. People v. Spencer, 55 N. Y. 1; People v. Smith, ld. 135; Wellsboro v. N. Y. ct C. R. R. 76 N. Y. 182; Metzger v. Attica ct A. R. R. 79 N. Y. 171. After careful consideration, it is thought that the petition contains all that the law requires. The pleader looked at the act and saw the word "tax-payer" there defined to mean a person taxed for property, "not including those taxed for dogs or highway tax only." A person taxed only for these, was not, so far as the bonding proceedings were concerned, a taxpayer. When the petition recited that the petitioners were a majority of the tax-payers, why did it not contain all that the strictest interpretation of the law required? Those taxed for dogs, etc., were not tax-payers. Can it be possi. ble that it was neccessary for the petitioner&, having shown what they were, to show, in addition, what they were not? They m.ight have recited that they were not aliens, 'or Indians, dr' infants, or lunatics, or taxed for dogs only; they might have alleged affirmatively that some of'the signers were "corporations;" that others were "assessed or taxed for property individually;" others, still, "as agents" or They did not proceed, however, upon any such awkward and cumbersome theory. 'The act 'provides that certain parties .shall others shall not. It does not make two classes be deemed of tax-payers by any means; it makes one class, and declares that all who are not in that class are not tax-payers. The law said to the
pleader and to the judge, use the word "tax-payer," for by so doing you include all who have a right to sign, and exclude all who have not that right; A person taxed only for a dog could not truthfully sign a petition which stated that he was a tax-payer. Should he do so, an affidavit averring that the signers were all tax-payers would be false. Suppose that the statute, instead of including corporations in the definition of "tax-payer," had excluded them. Would it still have been necessary to allege in the petition that the "petitioners are a majority of the tax-payers, excluding corporations?" No! Because the act, by express terms, had made this unnecessary. The petition was drawn under and refers to the law; its language is equivalent to the language of the statute. The same section defines the words "municipal corporation" to mean any "city, town, or incorporated village." The petitioners allege that "they are a majority of the tax-payers of the town of Mentz." Why is not the petition criticised fol' omitting to state that the town of Mentz is a "municipal corporation?" DOJlbtless, because the act provides that the word "town" and the words "municipal corporation" are synonymous, and any further description would be useless verbiage. The object of the petition is to place the subject be(ora the county judge for judicial inquiry; it is not evidence of f!.nyfact upon which the judge can act. He is required to take proof at the hearing, at which time tax-payers not on the petition may before him and be counted. Section 2. As well might it be asserted that the petition should set forth a copy of the assessment roll, with the metes and bounds of every tax-payer's real estate, and a full abstract of title, together with other evidence of his right to sign the petition, as that it should set forth the negative averment as to dogs, etc. lt will be observed that the definition of the word "tax-payer," and the words "excluding those taxed for dogs," etc., appear for. the first time in the act of 1871. Without this definition there would be some plausibility in the argument of the defendant; with it, the posi. tion becomes untenable. To reiterate what has been already said, where can be the propriety of requiring the pleader to aver that "the subscribers are a majority of the tax-payers of the town, excluding those who are not tax-paye'1'8?" This language seems absurd enough, and yet why is it not carrying the argument to its logical conclusion? The contention that the statute provides that the petitioners must state "that thlilY are such a majority," and that the word "such" refers to a majority, after excluding those taxed for dogs, loses its force when it is remembered that the same word appears in chapter H07 of the ,Laws of 1869, and therefore cannot with propriety be said to refer to a claUSE! which does not appear at all in the original act. There is no pretense any person taxed only for dogs or highways signed the petition or was counted by the judge; the point argued is purely a technical one, of statutory construction, and, for the reasons given, it must be overlllled. The federal courts,
RICH V. TOWN OF MENTZ.
which have with great unanimity sustained the validity of municipal bonds, should hesitate long before accepting the forced and narrow interpretation contended for by the defendant. These solemn obligations, issued to invite the investors of the world, should not be invalidated except for grave and serious infirmities. Even if the question were a doubtful one, a construction should be given to the statute which upholds the bonds, rather than one which turns them to ashes in the hands of a bona fide holder. Town of Aroma v. Auditor of State, 15 FED. REP. 843. The views here expressed were entertained ,by the learned judge who wrote the opinion in Whiting v. Town of Potter, 18 Blatchf. 165; [S. C. 2 FED. REP. 517.] The reasoning there, by impliqation, at least, disposes of the question here. n is, of course, unnecessary to discuss the same proposition with reference to the judgment; if the words were not needed in the petition they were not needed in the judgnlerlt. the act simply requires the judge to determine that the petitioners represent, in number and amount, "a majority of the tax-payers," without qualification or exception. The statute provides t4at the review of the proceedings of the eounty judge: shall be by certiorari, and it may well be doubted, in view of the facts,-the tOWll having received and retained the stock, and paid interest for two Or three years,-whether the 'objections raised, even if available in a direct proceeding, can be taken advantage of in a suit by a bona fideJlOlder. Whiting v. Tow'fl- of Potter, 8upra; Miller v. Town of Berlin, 13 BIatch£. 245; Town of Orleans v. Platt, 99 U. S. 676; Count.ll of Tipton V. Locomotive W01'ks, 103 U. S. 523; Wa),nut v. Wade, Id. 683; Menasha: v. Hazard, 102 U. S. 81; Block v. Com'1's, 99 U. S. 68(,i;Johnson Co.v.January, 94 U. S. 202; East Lincoln V. Davenport, Id. 801; Schuyler Co. v. Thomas, 98 U. S. 169; San Antonio v. MehaiJ.1J, 96 U. S. 312; 1'own of Coloma V. Eaves, 92 U. S. 484; Dill. Mun. Corp. § 418; v. Ottawa, 1}9 U. S. 86; Weyauweg(L v. Ayling, Id. 112; Calhoun v. Delhi It M. R. R. 28 HUn, 379. I have examined the other propositions argued, and think none of the positions well taken. Since the foregoing was written I have had a consultation with the <lircp.it judge, and have concluded, in view of the contrary opinion recently him in yowdrey v. Town of Caneadea, 16 FED. REP. 532, and in view of the.fact that the validity of other large issues of bond,s depends upon the determination qf these identicarl questions, that the most satisfactory disposition that. can be made of this motion is to set aside the verdfct, and order a new trial the two judges sitting together. A. unifo-fm rule for the future may then Le established. . New trial ordered.
(Oircuit Oourt, D. N8t1ada.
February 5, 1883.)
MOTION FOR NEW TRIAL NO
A motion for a new trial is not a waiver of a writ of error.
JUDGMENT, WHEN FINAL, PENDING MOTION.
Where a motion for a new trial has been made, and entertained by the court, the judgment in the case does not become final and effectual, for purposes of review before the supreme court, until the date of the order of COUrt overruling such Illation.
A writ of error may serve as a 8uper8edea8, if duly served within 60 days, Sundays exclusive, from the date of an order made denying a motion for a new trial. Where an execution has been prematurely issued, it will be recalled upon . motion made for that purpose.
WHEN RECALLED.· .
Motion to Recall Execution. R. M. Clarke and N. Soderberg, for the motion. R. H. Lindsey and W. E. F. Deal, contra. SABIN, J. This is a motion made by defendant to recall an execution issued in this action, February 8, 1883, upon the ground that the same was prematurely and improvidently issued. The defendant tenders a supersedeas bond, in double the amount of the judg.ment herein, with good and sufficient sureties, as admitted by plaintiff's counsel, and advises the court of his purpose of suing out a writ of error in this action, which may serve as a supersedeas in this court,as soon as his bill of exceptions is settled and allowed, and of giving the security required, to the end that the case may be reviewed in the supreme court. On the eleventh of November, 1882, at the present term of court, judgment was duly entered in this action against the defendant, upon the verdict of a jury rendered on that day in favor of plaintiff for the sum of $8,150.87, and costs. On the sixteenth of November, 1882, defendant filed in court a notice of motion for a new trial, and thereupon the court, on motion of defendant, on said day, entered an order staying execution upon the judgment pending said motion for a new trial. On the fifth of February, 1883, the court denied the motion for a new trial. The real contention in this matter is this: When does the timethe 60 days given by statute-within which defendant must serve and file his writ of error in order that it may serve as a supesedeas, begin to run? If, as defendant contends, the time begins to run, in cases where a motion for a new trial is made, only from the date of the decision of such motion by the court, then the execution in this case may have been prematurely issued,-the motion for a new trial