94 Tenn. 43 | Tenn. | 1894
This is. an injunction bill, brought by two taxpayers of Hamilton County, to enjoin the delivery to the railroad company of certain bonds of the county issued to secure the building of a free wagon and foot bridge across the Tennessee River at Chattanooga, and to have' the bonds declared void and canceled.
The defendants, county of Hamilton and Chattanooga Western Railroad Company, demurred to the bill, and, on hearing, Special Chancellor W. L. Eakin overruled the demurrer, and made the injunction perpetual; but in the exercise of his discretion under the statute, granted an appeal, which was taken, and the county and railroad, company have assigned errors.
The Court, by resolution, determined and resolved (reciting that it was a county purpose, and in the discretion, judgment, and opinion of the Court, to the best interests of the county and the public welfare) that it, for county purposes, would build a wagon and foot bridge between the points mentioned.
The resolution further recited that the cost of the bridge would exceed the amount which could be realized from special taxation during the period covered by its erection, and that, in order to build and pay for the same, it would be necessary for the county to issue $150,000 of its bonds, bearing-five (5) per cent, interest, and running twenty years to maturity, of the denomination of $1,000 each, and to be sold at not less than par.
The Court thereupon resolved, in substance, that if the defendant railroad company would, (1) in connection with its road and branches, construct a railroad bridge between the termini mentioned; (2) as a
It was further resolved, that the contract instrument should be registered, and its conditions and provisions run with the road and bridge and right of way into whatever hands they might thereafter pass.
On the same day that this resolution was passed, the railroad company, in open Court, accepted its provisions in writing, and the Court thereupon passed a resolution authorizing the issuance of the bonds, and their delivery to the bank, and the County Judge and bridge committee were authorized and directed to see to the erection, on the top of the railroad bridge, of the wagon and foot bridge provided for in the resolutions and agreement.
The demurrer to the bill proceeds upon the idea, among others of less importance, first, that the contract thus entered into constituted a giving or' loaning of the credit of the county to the railroad with
For defendants it is argued that such contract is authorized by and in conformity with the Constitution and general laws of the land; that the Chap-eery Court has no jurisdiction to inquire into the necessity, utility, or propriety of building a bridge, or its location, or time of erection, or as to the levy of taxes to pay for the same, because all these matters are exclusively in • the discretion of the County Court; that the contract is not prohibited by any statute, or the Constitution, and the acts relied on to sustain the contract are' constitutional, and the contract is not one giving or loaning the credit of the county to a railway, or becoming a stockholder therein.
Whether the arrangement ■ proposed to be entered into by the county is a judicious one, and for the best interest of the county, is not for this Court to inquire, but the question with us is simply one of authority to do what the county proposes to do, in the way it is attempting to do it.
That the Legislature has authorized the several County Courts to build jails, courthouses, and bridges in certain events, and raise money to pay for the same, will not be questioned. This necessarily presupposes the power to contract a debt for such purposes; and it is insisted that the right to create a debt carries with it, by necessary implication, the right to issue an evidence of that debt. This is, to a certain extent, conceded, for the county may, without doubt, issue its warrant on the County Trustee to meet the debts and demands against its treasury. But it is denied that this right extends to the issuance of bonds or commercial evidences of debt.
The case of State v. Anderson County, 8 Bax., 249, is referred to as holding “that a county, like any other corporation having a right to create a debt, has also the incidental right to issue the commercial evidence of it, in such form as may be satisfactory to the parties.” It is true this lan
In that case, the question ’ of the subscription upon which the bonds issued had been submitted to a vote of the people, and the real question at issue was, whether the submission was according to the statutes, and the controversy was between the county and an innocent holder of the bonds after an acquiescence of sixteen years in their validity by the county, and the payment of interest upon them. The effect of ratification by the county, and an es-toppel against it, were the controlling features of that case.
The mode of payment for bridges is expressly fixed by statute (M. & V. Code 1453), such payment to be made out of taxes annually assessed and collected by the County Trustee, and kept separate and subject to and paid out on the order of the Court, and the amount of such tax is limited by § 1452 to the same amount in any year as the State tax for that year. Special Acts have been and may be passed, authorizing counties to issue bonds to pay for bridges, courthouses, jails, etc., when these are the only objects to which the bonds are to be devoted. The exact question of authority in the county to issue bonds, in the absence of such a special statute, came before the Supreme Court of the United States in the case of Claiborne County v. Brook, 111 U. S. Rep., 400, a case arising under the general
And, again, in the case of Police Jury v. Britten, 15 Wall., 566, the same Court says: “It is one thing for County ■ Trustees to have the power to incur obligations for work actually done in behalf of the county, and to give proper vouchers therefor, and a totally different thing to have the power of issuing unimpeachable paper obligations,’ which may be multiplied to an indefinite extent. If it be conceded that counties have an implied power to issue coupon bonds payable at a future day, which may be valid and binding obligations in the hands of innocent purchasers, there will be no end to the frauds that will be perpetrated.”
We are clearly of opinion that this is sound law', and that the county of Hamilton, under the
But defendants claim that the county had such right under the provisions of an Act of the General Assembly of 1893, Chapter 116. This Act is special, and applies to Hamilton County, and was no doubt passed to enable the county to undertake some such contract as is involved in this case.
The Act provides, in substance, that the County Court of Hamilton County may join, and co-operate with any individual, firm, joint stock company, or corporation, in the construction of a combined foot, wagon, and railroad bridge or- bridges, across any navigable stream within the county, and may appropriate and contribute, on such terms and conditions as they deem proper, not to exceed $150,000, and that, in order to raise the amount, the County Court might issue the bonds of the county, and provide for their payment, as authorized by the Act, not to exceed $150,000, and not to bear greater rate of interest than five per cent., or run longer than fifty years to maturity. The Act does not require the question to be submitted to a vote of the people of the county. It is said this Act is unconstitutional, because it seeks to extend the credit of the county of Hamilton in aid of the railroad company, without the assent of the citizens of the county by a three fourths vote, and because it seeks to make the county a stockholder in the bridge and right of way with
It is possible that this action might be made constitutional by submitting it to a rote of the people, but this is clearly not the intention, of the Act, and the bill in this cause charges that a motion to submit the action of the Court to a vote was made in the County Court and rejected, and no election has ever been held.
The language of the Constitution is: “The credit of no county, city, or town shall be given or loaned to or in aid of any person, company, association, or corporation, except upon an election to be first held by the qualified voters of such county, city, or town, and the assent of three fourths of the votes cast at such election; nor shall such county, city, or town become stockholders with others in any company, association, or corporation, except upon a like election, and the assent of a like majority.”
It is evident that the letter and spirit of this provision is that the county shall not be a stockholder nor joint owner with any company, association, or corporation in any enterprise or improvement, although it may be one in which the county may be otherwise authorized to enter.
We think it apparent that, under their contract,
There is nothing to indicate that the $150,000 of bonds is the cost of the superstructure or wagon way, as separate from the substructure or railway, nor can the former exist without the latter, and the right of the county extends to the foundation and substructure, at least to the extent of an easement, for support and maintenance.
It is not simply the case of the railroad company building the -bridge, as the agent of the county and for the county, to be paid for by the county after it is built, but they are engaged in a joint enterprise, and the aid of the county is extended to the railroad, to enable it to consummate the enterprise, by issuing its bonds as a basis of credit for the enterprise. Garland v. The Board, etc., 6 So. Rep., 442 (Ala.).
Not only is this so, but the county does become concerned in the matter far beyond its mere interest in the building of the county bridge. This joint agreement contemplates not only the building of the bridge for both railroad and county pxirposes, but the building of twenty-five to fifty miles of railroad branches, in order to reach coal and iron mines, stone quarries, timber, and the main line of the Cincinnati Southern Railroad Company, and one of
If we are correct in our construction of this ■ agreement between the county and the railroad, that it is not merely a contract to build a bridge for the county, to be used for county purposes and belong to the county, but that it is a lending of credit to the railroad, and becoming a stockholder and joint owner with the railroad company in the proposed improvements, then we need not consider the Act of 1885, Chapter 149, to which we have been referred, at all, for it relates exclusively to the building of county bridges in certain localities, not in connection with any railroad enterprise, and under its provisions will be found no authority to
We need not, therefore, consider whether the latter Act is constitutional or unconstitutional, as, under our construction of the contract in this case, the contemplated issue of bonds would not be authorized by that Act, whether it be constitutional or not.
We are of opinion, that under a proper construction of this contract, or agreement, between the county of Hamilton and the railroad company, the issuance and delivery of the bonds, ,as proposed, is contrary to the Constitution in the absence of any submission of the proposition to the people of the county, and the decree of the Special Chancellor sustaining the demurrer was correct, and the same is affirmed.
The county of Hamilton and the defendant, First National Bank of Chattanooga, are perpetually enjoined from delivering said bonds to the defendant railroad company, or otherwise negotiating them, and the bonds are canceled, and will be delivered up for destruction.
The county of Hamilton and the railroad company will pay the costs of this Court and the Court below, equally.