Douglas v. Town of Chatham, 41 Conn. 211

41 Conn. 211 | Conn. | 1874

Carpenter, J.

The principal question in this case, whether the legislature has the constitutional power to authorize towns to aid in the construction of railroads, is hardly an open question in this state. Successive legislatures have assumed the existence of the power, and granted authority to towns and cities to issue bonds, and in other ways to aid in building railroads, and the action 'of towns and cities pursuant to such authority has been held by this court to be valid and binding. Bridgeport v. Housatonic Railroad Co., 15 Conn., 475; Society for Savings v. City of New London, 29 Conn. 174. The same principle is recognized in Booth v. Town of Woodbury, 32 Conn., 118. The decisions of the Supreme Court of the United States are to the same effect. Gelpcke v. City of Dubuque, 1 Wall., 175; Rogers v. Burlington, 3 Wall., 654; Railroad Co. v. County of Otoe, 16 Wall., 667. Whatever therefore we may think of the expediency of its exercise, we are not at liberty to deny the existence of the power.

It is further contended that the town voted to guarantee bonds secured by a second mortgage of the railroad franchise and property, and that the bonds they are now asked to guar antee are secured only by a third mortgage. The record shows that the first mortgage was given to secure bonds issued by the railroad company, that the second mortgage was given to secure bonds issued by the towns in aid of the railroad; that the several towns, including the town of Chat-ham, acting through their respective committees or agents duly authorized, had agreed with each other and the railroad company to release the last named mortgage, so far as the towns were concerned, and that the towns, at meetings duly warned for that purpose, had voted, upon certain conditions, to release the mortgage accordingly, and that the conditions had been complied with. This -action of the towns was ratified and .confirmed by the legislature. It was the understanding that the release of the mortgage was to be executed by all the towns simultaneously, but it was not executed by any of them. The railroad company, relying upon this action of the towns, and their votes to guarantee bonds, entered into contracts for the completion of the road, issued its bonds, and executed a mortgage in due form for their security. That mortgage described the two prior mortgages, and stated the fact that the towns had voted to release the mortgage given to secure the town bonds. Had the towns in fact released the mortgage, the bonds now in suit would have been practically second mortgage bonds. That is precisely what all the parties contemplated. Hence the bonds were known and-called by the parties concerned and by the public generally “ second mortgage bonds and it is expressly found that whatever may be the proper name of these bonds they “ are the bonds which the town of Chatham by its vote intended to guarantee.” In order therefore to give effect to the obvious intention of the parties, we must regard them as “ second mortgage bonds ” within the meaning of the vote.

It is objected however, not very strongly to be sure, that the evidence upon which these facts were found was not admissible. We think the evidence was clearly admissible. It was not offered or received to explain a vote in itself free from ambiguity, but to show the circumstances connected with the transaction, for the purpose of applying the vote to the subject matter contemplated and intended by the parties.

The vote of the town is as follows: “ Will the town of Chatham authorize and direct the selectmen to endorse and guarantee an amount of second mortgage bonds of the New Haven, Middletown & Willimantic Railroad Company, that shall not exceed in amount the sum of forty thousand dollars, said bonds to be used to aid in the completion of said railroad, on and after such time as said road shall have been graded, the track laid permanently, and cars shall have passed over said road from the city of New Haven to the village of East Hampton in said Chatham.” The defendants claim that, under this vote, the avails of the bonds to be guaranteed can only be used in completing the road after the track was laid permanently, and the cars had passed over the road to East Hampton; -while the plaintiff claims that the expression, “ on and after such time, &c.,” relates solely to the time of guaranteeing the bonds, and does not limit the use of the avails of the bonds. We think the latter construction is the correct one. The object of the town was to secure the completion of the. road to East Hampton. That being accomplished, they received the benefit of their investment, whether the money was used to pay for work done at one time or another. The limitation of the use to any particular time or place was not essential; the whole object was accomplished by fixing a period in the progress of the work before which the bonds should not be guaranteed.

The claim of the defendants that the vote to guarantee bonds to the amount of $40,000 is void for the reason that the amount of stock owned by the town was only $35,000, cannot'be sustained. If it be true, as they assume, that the amount invested by the town was only $35,000, the vote is not void, but is valid for that amount. But we see no difficulty in regarding the bonds issued by the town, the avails of which were used in the construction of the railroad, as an “ investment.” The defendants themselves so regarded them, and we think properly. Therefore the vote of the town does not exceed the authority conferred by the act of the legislature, which limits the amount to be guaranteed to the amount invested in the railroad.

Wo have no occasion to consider the question whether a guarantee, or an agreement to guarantee, is negotiable. This is not an action upon such a contract. It is simply a proceeding in the name and in behalf of the state to compel public officers to perform an official act. The only point of view in which this question can be important in the present case is in determining whether Mr. Douglas has sucli an interest in the subject matter as that he may be a relator. The view we have taken of other questions in the case renders this question unimportant.

And this brings us to the question whether in this case a peremptory mandamus can properly issue.

The vote of the town was to do one act—to guarantee bonds not exceeding in amount the sum of 140,000. Not only the time but the manner of doing it was carefully provided for in the vote. The selectmen were to place the endorsement or guarantee upon the bonds; a financial committee was appointed, whose duty it was to receive such bonds from the selectmen, transfer them to the railroad company, and receive in exchange therefor from the company in its second mortgage bonds double” the amount so guaranteed. This vote measures and defines the exact duty of the selectmen. They were under no obligation to guarantee bonds in any other way, and had no authority to do so. This proceeding is instituted to compel the selectmen to guarantee only those bonds in which the relator has a special interest. If this can be sustained each of the other parties interested may also resort to this writ. Thus the duty of the selectmen to do a single act, may be made the subject of as many suits as there happen to be parties interested in its performance. There is no necessity for issuing several writs of mandamus to compel the performance of a single duty and we are not aware of any authority that will justify it. As the mandatory clause in the alternative writ follows the application, and as the peremptory writ in this respect must follow strictly the alternative writ, it follows that the peremptory writ cannot legally issue.

The writ, if issued against the selectmen, should command them to perform their whole duty under the vote, and not a part of it merely. That cannot be done in the present case for another reason. Neither the application nor the writ contains an averment that the selectmen have been requested to perform this whole duty, dr have ever refused to perform it. It is true the court has found such a request and refusal, but in the absence of any averment to that effect the finding is of no avail. A refusal to do the required act is essential and must be averred. Eor this reason also this proceeding must fail.

Again— this writ simply requires the respondents to guarantee the bonds in which the relator has an 'interest, without providing for their subsequent disposition, or that the town shall receive the stipulated security. If the import of the writ is to require the town to place its guarantee upon bonds belonging to the relator and leave them with him without such security, it is clear that the writ should not issue. If, as may be suggested, a proviso to the effect that the relator should leave with the town the required security may be implied from the whole proceeding, we reply that in a prerogative writ a substantial and material matter like this should not be left to implication. The duty required should be clearly and distinctly stated and the rights of the respondents should be expressly and carefully guarded. In this respect too the writ is fatally defective.

For the reasons last stated we must advise the Superior Court to render judgment for the. respondents.

In this opinion the other judges concurred.