52 Tex. 228 | Tex. | 1879
This suit was brought by the county of Anderson, denying the validity of certain bonds issued by her constituted authorities in her name to the Houston and Great Horthern Railroad Company, seeking to enjoin the transfer of the bonds and the further collection of a tax levied for their payment; praying, also, for the recovery back of payments made out of taxes previously collected, for the cancellation of the bonds, and, in an amended petition, praying, in case the bonds had been transferred to innocent holders, for judgment for the value thereof. The petition made exhibits of all the proceedings of the County Court of Anderson county in reference to said bonds. These proceedings show as follows :
On the 26th day of March, A. D. 1872, more than fifty freeholders petitioned the County Court of Anderson county to order an election to take the sense of the voters of said county on the question of donating $150,000 in the bonds of said county to the Houston and Great ¡Northern Railroad Company, and an additional $50,000 in the bonds of said county to the first railroad company that would build a railroad from the town of Palestine to the northern line of said county, upon certain conditions. The conditions to be complied with by the Houston and Great Horthern Railroad Company were, to build their railroad from the north boundary of Houston county to its intersection with the International Railroad at the town of Palestine, in said Anderson county, and build and maintain a depot of its said road within one-half mile of the court-house
The County Court accordingly ordered an election to be held on the 1st, 2d, 3d, and 4tli days of May, A. D. 1872, for the purposes mentioned in the freeholders’ petition. On the 6th day of May, A. D. 1872, the County Court made an order stating that the election had been held in pursuance of the previous order; that a special registration had been made for the purposes of said election, according to statute; that more than two-thirds of the qualified voters of Anderson county had voted for said proposition, and that it was carried; and further, that the county of Anderson would issue to the Houston and Great Northern Eailroad Company, on completing their road to Palestine according to terms, $150,000 in the bonds of said county, and $50,000 to the first company that would build a road to the northern line of said county according to the proposition.
On the 29th day of January, A. D. 1873, upon the petition of said railroad company, the County Court, declaring that the Houston and Great Northern Railroad Company had fully complied with the terms of said proposition, issued to that company $150,000 in the bonds of said county, as of date December 31, A. D. 1872.
At the same time the County Court levied a tax of one per cent, on the taxable property in the county for the year 1873, and each successive year until all of said bonds are paid. The bonds were issued accordingly, one member of the County Court protesting. During the year 1873, and up to the institution of this suit, on November 14, 1874, the tax levied was collected and appropriated, as by law required, to the interest
The court sustained general exceptions to the amended petition, having before sustained like exceptions to the previous pleadings of plaintiff". The plaintiff" declined to further amend, and the court having thereupon dismissed the case, this appeal is prosecuted.
The first question discussed by counsel is the constitutionality of the special registration statute of May 13,1871. (Paschal’s Dig., art. 6805.) This is not the first time that this question has been before this court. In the case of The Texas and the Mississippi River, Canal, and Navigation Co. v. Galveston County, it was directly presented. Justice Eeeves, in the opinion delivered in that case, says: “ There is nothing in the
But whilst we entertain views which coincide with those ex
Section 2 reads: “The order of the court shall be entered on the minutes, and shall state the time when and the place where the election shall be held, and how long it shall continue, and shall appoint the managers to conduct the election, and name a time when they shall make a return thereof to the court.” This section directs how the proposition must
Section 3 provides a remedy for the failure of the -managers to attend the election.
Section 4 directs Bow the vote shall be taken and who shall be allowed to vote, and requires a record to be kept of the names of all persons who vote, and then proceeds thus: “The managers shall count the votes and make a statement of the result, to which there shall be attached an affidavit of the managers and clerks that the election has been conducted according to law. And one of the managers shall, within three days after the election, make a return to the County Court of the result of the. election, with the ballots and record of the persons who voted.”
Section 5 reads: “A special meeting of the County Co-urt shall be held on the first Monday after the return day of such election, when the court shall ascertain and record the result of the election, and if two-thirds of the qualified voters of the county shall have voted in favor of the proposition at such election, then it shall be the duty of the court to- make such orders and adopt such regulations as null give practical effect to the proposition so voted for, and for that object the court shall have power to issue county bonds, to draw interest not exceeding ten per cent, per annum, and to levy a tax on all real and personal property situated in the county, not to exceed two per cent, on the assessed value of such property in any one year.” The act contains eleven other sections regulating the form, issuance, and registration of the bonds; the levy and continuance of a tax sufficient to pay the assessed interest and not less than two per cent, of the principal of the bonds, and sundry other provisions which need not be stated.
The evident purport of the act is to make the County Court the tribunal to judicially determine the result of the election.
Under the Constitution and laws then in force, the County Court was composed of the five justices of the peace of the county, and was intrusted with powers- of different kinds. In
In its judicial capacity, it was an appropriate tribunal to ascertain and record the result of the election. Speaking of this statute and of the County Court, this court has said: “A matter of great importance, involving judgment and discretion, is intrusted to its determination.” (Austin v. Gulf, Colorado and S. F. R. R. Co., 45 Tex., 270.)
In that case a proposition to aid the railroad had been submitted to the voters of Galveston county on May 20, 1874, and the result had been ascertained and recorded by the County Court on June 15,1874. In July, 1875, some of the bonds issued, a tax having been levied for their payment. On January 19,1876, suit was brought to enjoin the collection of the tax and the further issuance of bonds, one of the grounds of relief being that two-thirds of the legal voters of the county had not voted for the proposition, and that, therefore, the county had no authority to issue the bonds-or levy the tax. This court said: “Other objections are made to the action of the court in ascertaining and declaring the result of the election. If, however, we were to concede the most that can be claimed for them, it would be found that they were mere irregularities or errors in the course of a judicial proceeding, for which the judgment could not be impeached at the time and in the manner proposed by appellant in this case.”
In the present case, it was more than two and a half years after the election, and after the determination of its result, when this suit was instituted, seeking to impeach the judgment and conclusion of the .County Court.
• In the final amended petition, plaintiff sought to excuse the delay by alleging fraudulent concealment of the wrongs complained of. In so far as this related to the election and the official action of the managers and the County Court, it is believed that the court was justified in disregarding the averment of concealment. The proposition, that if the result of such an election is by law to be ascertained and declared by any tribunal, the action of that tribunal is conclusive unless it be impeached or sought to be revised in a direct proceeding instituted in time, is supported by numerous decisions of the Supreme Court of the United States and other courts. (Commissioners of Knox Co. v. Aspinwall, 21 How., 544; Munson v. Town of Lyons, 12 Blatch., 545; Township of Rock Creek v. Strong, 96 U. S., 278; Marcy v. Township of Oswego, 92 U. S., 638; Town of Coloma v. Eaves, 92 U. S., 484; Railroad Co. v. City of Evansville, 15 Ind., 395; Railroad Co. v. Town of Chatham, 42 Conn., 465.)
It cannot be denied that the law authorized the submission of the proposition, nor that if the election was held in such a way as to deprive citizens entitled to vote of the right to do so, or if illegal votes were received or other irregularities committed, that these facts, however sufficient to have authorized the County Court to set the election aside, or to support a direct proceeding to revise the action of that court, do not make the election void, or authorize the determination of its result to be collaterally marked.
The company did undertake, however, to build and maintain a depot within half a mile of the town of Palestine, and this was to be done before they were entitled to the bonds. In an amended petition, there is a distinct averment of the failure to build and maintain this depot. From the petition and exhibits it amply appears that, prior to the issuance of the bonds, the County Court officially declared that the company had fully complied with the terms of the proposition. In passing upon that question, our opinion is, that the County Court acted in their capacity as the agents of the county, intrusted with the management of its business affairs. As such agents, they represented the county for the purpose of inspecting the road and depot, and being satisfied that they had been constructed according to contract, they so' declared and proceeded to issue the bonds. Not only so; the tax for their payment was levied by them, and was collected up to November, 1874, over twenty-one months after the bonds had issued. After such action of the county by its authorized agents, our opinion is, that it is not a sufficient ground for canceling the bonds to allege that, in fact, the compliance by the railroad had not been complete. It is only as affecting the validity of. the
If, after all that had passed, the question of failure on the part of the company to construct a depot was still open for any purpose, it was not open for the purpose of canceling the bonds, or of granting relief based on the ground that, if still in the hands of the company, they ought to be canceled. (County of Randolph v. Post, 93 U. 8., 513; Commissioners v. Thayer, 94 U. S., 642; Leavenworth, Lawrence and Galveston Railroad Co. v. Douglas County, 18 Kan., 169; Louisville and Nashville Railroad v. State of Tennessee, 8 Heisk., 663.)
This suit was evidently brought mainly on the ground that the proposition submitted to the voters of Anderson county was never carried by the requisite majority, and that, therefore, there was no authority to issue the bonds,—a question which has been sufficiently disposed of. By amended petitions, other objections were made to the issue of the bonds. Donations to railroads, it is claimed, were authorized under the Constitution, and it is further claimed that the statute was in derogation of the power conferred by the Constitution on the County Courts to assess and provide for the collection of a tax “ to aid in the construction of internal improvements.” (Const., art. 12, sec. 32.) We content ourselves with saying that we have not been able to see that the law was unconstitutional. For these reasons, in our opinion, the exceptions to the' petition were rightly sustained, and the judgment is affirmed.
Affirmed.
[Associate Justice Bonner did not sit in this case. Chief