The People, ex rel. Abel Angel, vs. Woolcott Hatch, late County Judge of Allegany county

The People, ex rel. Abel Angel, vs. Woolcott Hatch, late County Judge of Allegany county. Tax-payers who have signed a petition to the county judge praying that the bonds of the town in which they reside may be issued in aid of a railroad, have the right to withdraw their names from said petition, on application to the county judge for leave to do so, before a determination has been reached. And if the county judge refuses to permit the applicants to withdraw, and counts them as tax-payers signing the petition, it is error, for which the determination and judgment of the county judge may he reversed. CERTIORARI to review the determination and judgment of the county judge of Allegany county, in proceedings to bond the town of Belport, in aid of the construction of a railroad. [MAJORITY — By the Court, Mitllin, P. J.] By the Court, Mitllin, P. J. The proceedings to bond the town of Belport in the county of Allegany were instituted under section 1 of chapter 935 of the laws of 1871, which amends chapter -907 of the laws of 1869. A petition, purporting to be signed by a majority of the tax-payers of said town, whose names appear on the last preceding assessment roll of said town, and who were assessed for, or represent, a majority of the taxable property of said town, praying that bonds of said town be issued in aid of the Belmont and Buffalo Railroad Company, to the amount of $30,000, was presented to the county judge of said county, accompanied by the affidavit of one of the tax-payers, setting forth that said petition was signed by a majority of the tax-payers of said town, and that they were assessed for, or represented, a majority of the taxable property of said town. On presentation of this petition, thus verified, the county judge acquired jurisdiction to publish the notice that on a day named he would take proof of the facts and circumstances stated in the petition. The county judge is not authorized to enter into any examination of the question whether the petition is signed by the requisite number of tax-payers, until the day of meeting designated in his notice. The affidavit of the tax-payer is conclusive evidence that the petition is signed by the requisite number, for all purposes of jurisdiction. On the hearing before the county judge pursuant to notice, it was found that 114 persons whose names appeared on said assessment roll had signed said petition. In the affidavit made by Abel Angel for the purpose of the motion for a certiorari, it is stated that 29 of the persons who had signed the petition applied to the county judge to be permitted to withdraw their names from said petition ; but the county judge refused to permit them to withdraw, and counted them as tax-payers signing said petition. It is further stated, in said affidavit of Angel, that had the said persons, when they requested to withdraw, been permitted to do so, there would not have remained a majority of the tax-payers of said town of Belport owning or representing a majority of the taxable property appearing on the last preceding assessment roll of said town. [Fourth Department, General Term, at Buffalo, June 3, 1873. Mullin', Talcolt and E. JO. Smith, Justices.] The county judge returns that the affidavit of Angel contains a true history of the proceedings and rulings of said county judge, and his determination in said matter ; and he adopts it as his return, with certain qualifications, none of which affect the question now under consideration. The Court of Appeals having decided, in The People v. Sawyer, that persons signing the petition have the right to withdraw their consent to bonding the town, and that they be counted in ascertaining the number of .tax-payers who have consented to bond the town, it follows that the determination of the county judge was erroneous, and must be reversed. It is unnecessary to examine any other of the numerous questions discussed by counsel. The determination and judgment of the county judge reversed, without costs.