
    The People ex rel. William Allen et al., Appellants, v. Henry L. Knowles, County Judge of St. Lawrence county, et al., Respondents.
    Where a county judge, in his return to a writ of certiorari brought to review proceedings had before him under the town bonding act of 1869 (chap. 907, Laws of 1869), did not return the evidence taken before him to prove the identity of the petitioners, and their signatures to the petitions presented to him, but simply returned that it was proven that each name subscribed to the petitions was written by or upon the request of the person so named, and whose name appeared upon the list or roll as a tax-payer; without stating how many signed personally, or how many names were affixed by others,—Reid, insufficient to sustain the pro ceedings.
    To justify an affirmance of the proceedings, the return must show affirmatively that the county judge had jurisdiction, and the proof of a jurisdictional fact should be returned to enable the higher court, to determine whether the fact was established. It should at least appear that those whose names were affixed to the petition by others were present at the time of signing, and authorized it, or that the one who affixed the signature had written authority so to do, which written authority was annexed to the petition and presented to the county judge.
    Where a new assessment roll and tax list have been made since the institution of the proceedings, although there are no defects which may not be remedied upon a rehearing, the proceedings will not be remanded under the act of 1871 (chap. 925, Laws of 1871, § 4).
    (Argued January 25, 1872;
    decided February 6, 1872.)
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming the proceedings and judgment of the county judge of St. Lawrence county, in proceedings under the town bonding act, chap. 907, Laws of 1869, brought up for review upon writs of certiorari.
    
    
      A petition under said act was made and signed by the taxpayers of the town of Hammond, in the county of St. Lawrence, and presented to the county judge of said county for the purpose mentioned in and authorized by said act.
    The county judge made the orders and publications prescribed by the statute, and on the 28th day of June, 1870, proceeded to hear the said application. The petitioners appeared in person and by counsel. The county judge, upon the evidence, adjudged that the petitioners were a majority of the tax-payers whose names appeared on the last preceding tax list and assessment roll of said town, and that they represented a majority of the property on said list or roll, and ordered the said decision to be entered of record, as authorized by said act, and appointed Alexander R. Gregor, James Moyer and Ohauncey Smith, commissioners.
    The relators sued out a writ of certiorari; which writ was served upon the county judge and upon the railroad company.
    The county judge made return to the writ; which return set forth the petition, but did not contain the evidence as to the signatures thereto, but in lieu thereof the following statement :
    
      “ It was proven that each name subscribed to said petition was written by or at the request of the person so named and whose name appeared, except as herein otherwise mentioned, upon said list or roll, as a tax-payer of said town.”
    
      B. H. Vary for appellants.
    The act of 1869 must be strictly construed. (Rex v. Cook, Cowp., 26; Gilbert v. Col. Turnpike Co., 3 J. Cases, 107; Sharp v. Spear, 4 Hill, 76; Sedgwick on Con., 62, 63, 117, 281; People ex rel. Haines v. Smith; People ex rel. White v. Hurlburt; Adams v. S. W. R. R. Co., 10 N. Y., 30.) The act is unconstitutional. (People v. Draper, 15 N. Y., 532; 7 Barb., 30; 2 Barb., 514; Devoy v. Mayor, etc., 36 N. Y., 449.) For authority I refer to Dr. Foster’s case (11 Coke, 59); Child v. Hudson’s Bay Co. (2 P. W., 209); Cohen v. Hoff (3 Brew., 500, 502, 504); Stradling v. Morgan (Plowd., 206); United States v. Morse 
      (3 Story, 89; 11 Weed, 151); Broom’s Legal Max. (414, 4th ed.); Cushman v. Johnson (4 Abb., 256; 13 How., 495); Griffin v. Griffin (6 How., 428); Bank of Rome v. Village of Rome (18 N. Y., 38); Clark v. City of Rochester (28 N. Y., 605); Strain v. Town of Genoa (23 N. Y., 439); People v. Mead (36 N. Y., 224).
    
      C. G. Myers for respondents.
    The General Term, in substance, quashed the writ. This court cannot review the decision. (People v. Stilwell, 19 N. Y., 531.) There was evidence upon the jurisdictional facts to be proven, and the judge having determined them, the decision cannot be reviewed on certiorari. (People v. City of Rochester, 21 Barb., 656, 670 ; 5 Cranch, 173; Betts v. Bagley, 12 Pick., 572; Birdsall v. Phillips, 17 Wend., 464; Haines v. The Judges, 20 Wend., 625 ; In matter of Faulkner, 4 Hill, 598.) The act is constitutional. (Bloodgood v. M. & H. R. R. Co., 18 Wend., 48; Beekman v. Saratoga R. R. Co., 3 Paige, 73; Conch v. Ulster Turnpike Co., 4 J. Ch., 26; People v. Mayor, etc., 4 Com., 419; Bank of Rome v. Village of Rome, 18 N. Y., 39; Clark v. City of Rochester, 28 N. Y., 605; see also, People v. Smith, 21 N. Y., 595; People v. Lawrence, etc., 41 N. Y., 137, 139; Gelpecke v. City of Dubuque, 1 Wallace, 175, 205; Thompson v. Lee County, 3 Wallace, 327, 330.)
   Rapallo, J.

The county judge has not returned the evidence taken before him to prove the identity of the petitioners and their signatures to the petitions.

His return to the writ of certiorari states that it was proven that each name subscribed to the petitions, or either of them, was written by or upon the reguest of the person so named, and whose name appeared (except as otherwise mentioned in the return) upon the list or roll, or as a tax-payer of the town.

This statement in the return is all that the record contains to show the authenticity of the signatures appended to the several petitions. How many of the signatures were affixed personally by the parties named as petitioners, and how many by others at the request of the parties so named, does not appear. Several of the signatures appear upon their face to have been made by proxy, but there is nothing in the return to show that all those not so appearing were made by the parties in person. The general statement that the names subscribed to the petition were written by or upon the request of the parties so named, affords no means of distinguishing between the different classes of signatures, or of ascertaining that a majority of the tax-payers personally- signed the petitions.

In several cases which have lately been before this court, the question has arisen whether the power conferred upon tax-payers of a town to petition for the issue of town bonds, under the provisions of the act of 1869, was one which could be exercised by proxy, or whether it must be exercised by the tax-payers in person; and upon mature consideration we come to the conclusion that this power was one which must be exercised by the tax-payer in person. That it called for the exercise of discretion, affecting the rights and property of parties other than the petitioners themselves, and could not be delegated; also that inasmuch as the statute required a written petition of the tax-payers, their mere oral consent was not sufficient, and, therefore, a tax-payer whose name was subscribed to such a petition by a third party, in pursuance of a previous verbal authority, could not be counted as a petitioner. (People ex rel. Haines v. Smith, opinion of Allen, J.; People ex rel. White v. Hulbert, opinion Church, Ch. J.)

It was intimated in these cases that if it appeared that the ■tax-payer whose name was thus subscribed was present at the time of the subscription, and merely used the hand of another to write his name, the signature might be deemed his per-sonal act. . And it was also considered that a special written •authority to sign the particular petition might be available. -But in such a case the written authority should be annexed ‘to -the petition and presented to the county judge as a part •of the proceedings, in order that he may have before him the written evidence which the statute requires of the consent of the tax-payers, other than those who appear before him at the hearing to join in the petition.

It is very evident that the return in this case fells far short of showing a compliance with these requirements. Eo written authority appears to have been given by those whose ñames were signed by others, nor does it in any manner appear that the persons whose names were thus affixed to the petitions were present at the time, or ever saw the petitions, or knew their contents. The application by a majority of the tax-payers was a jurisdictional fact, upon which the powers of the county judge depended. The statute required him, before appointing commissioners to issue the bonds, to take proof of the number of tax-payers joining in the petition, and of the amount of taxable property represented by them, and to determine whether the requisite majority had joined. (Laws of 1869, chap. 907, §§ 1 and 2.)

To justify an affirmance of the proceedings the return must show affirmatively that the county judge had jurisdiction to make the order. Where, as in the present case, the jurisdiction of an inferior tribunal depends upon a fact to be proved before itself, and a certiorari issues to review the proceedings, the proofs of such jurisdictional fact should be returned, for the purpose of enabling the higher court to determine whether the fact was established. (People v. Goodwin, 5 N. Y., 572.) In the case of The People ex rel. White v. Hulbert ; People ex rel. Haines v. Smith ; and Averill v. The Adirondack R. R. Co., this principle was applied, and it was held that, in proceedings under the bonding act of 1869, the return must affirmatively show a compliance with the requirements of the act.

Assuming that the statement of the county judge in his return, that it was proved that the names subscribed to the petition were written by or upon the request of the persons named, was a sufficient substitute for the proofs themselves, it entirely omits the further essential statement as to those whose names were signed by proxy, that the signatures were made in their presence, or in pursuance of their special written authority.

This omission cannot be supplied by intendment. (See opinion of Allen, J., in People ex rel. Haines v. Smith, and of Church, Ch. J., in People ex rel. White v. Hulbert.) The case presented by the return is a naked one of the signature of the names of tax-payers by a third party, which for aught that appears may have been done in pursuance of mere verbal authority given at some previous time. The views expressed in the opinions referred to lead inevitably to the conclusion, that the return fails to show a compliance with the act, and that therefore the Supreme Court erred in affirming the proceedings.

Numerous other material objections to the proceedings are urged by the appellant; but as the one already considered is sufficient to dispose of the case, it could only be necessary to examine the others with a view to the question whether the case should be remanded, under the act of 1871, ch. 925, sec. 4, to be reheard by the county judge. A majority of the court are of opinion that even if it should appear, on further examination, that there was no defect which might not be remedied on a rehearing, it would not be proper to remand the case, for the reasons stated in the case of People ex rel. Haines v. Smith, nearly two years having elapsed, and a new assessment roll and tax list having been made up since the institution of the proceedings. I have not, therefore, examined the remainder of the appellant’s objections, and express no opinion respecting them.

It is objected, on the part of the respondent, that the judgment of the Supreme Oourt was, in effect, the granting of a motion to quash the writ of certiorari, and is not reviewable here under the decision in People v. Stilwell (19 N. Y., 531). This allegation is not borne out by reference to the record. The judgment is, that the judgment and proceedings of the county judge be in all things affirmed.

The questions as to the service on the respondents and on the commissioners, of notice of the certiorari, or of copies of the affidavit on which the writ was applied for, cannot he considered on this appeal.

The judgment of the Supreme Court and of the county judge should be reversed without costs.

All concur except Folgee, J., who is in favor of remanding proceedings.

Judgment reversed.  