50 Vt. 257 | Vt. | 1877
The opinion of the court was delivered by
Upon the facts found and reported by the referee the able counsel for the defendant have urged with much skill and force various objections to the right of the plaintiff to recover.
While conceding the general power of the Legislature to authorize municipalities to aid in the construction of railroads, they contend that the act of March 28, 1867, under which the defendant acted or attempted to act, “ is unconstitutional in the mode prescribed for binding the town, to wit, without any corporate action by vote.” They particularize their objections as follows: “ 1. It is not a vote, and is not done in a meeting duly warned ; 2. The persons to be appointed are named beforehand in the instrument of assent, and they are to be the commissioners, and no one else, thus leaving no way for choice or selection ; 3. Women, guardians, executors and administrators, and corporations are to sign, and the same person could sign on his own list, on that of his ward, as executor of one estate and administrator of another, and as director of a corporation ; 4. There is no provision for an adjudication by any one as to whether or not the commissioners are elected, and antecedent to having ascertained that fact, they are to adjudicate and decide upon the fact as to whether or not a majority in number and amount of the resident tax-payers have signed and acknowledged the instrument of assent, and on this count their own authority depends ; 5. If there is any such thing as a count to .ascertain whether the commissioners are elected, it is done indirectly by the commissioners themselves; 6. Important matters that are intended to involve the town 'in an immense debt, are to be decided by the persons named as commissioners, without a hearing, and in a private manner.” Most of these objections are not new, nor for the first time brought to the attention and consideration of this court. The constitutionality of this act, and the substance of the objections now made, were, very soon after the passage of the act, brought for adjudication before Judge Peck as Chancellor in the case of Daniel Goodall et als. v. L. P
The nintli article of the Declaration of Rights, cited by defendant’s counsel, that “ no part of any person’s property can be justly taken from him, or applied to public uses, without his own consent, or that of the representative body of the freemen”; and that,- “ previous to any law being made to raise a tax, the purpose for which it is raised ought to appear evident to the Legislature to be of more service to the community than the money would be if not collected,” — is not infringed by the act in question. “ The representative body of the freemen ” passed, in the passage of the act, upon the expediency of conferring the powers named in the act upon the defendant, and of the manner in which its inhabitants should exercise that power, and left to a majority of the resident tax-payers, both in number and amount of grand list, the determination of whether the purpose for which the tax was to be raised was of more service to community than the money would be if not collected. On general principles as well as the adjudged cases, we think the act is constitutional, and that the defendant was clothed with the power to aid in the construction of the enterprise named in the act.
II. It is claimed that the first section of the act, which empowered the towns therein named “ to aid in the construction of the Montpelier and St. Johnsbury and the Essex County Railroads,” &c., confined the defendant to giving aid, if at all, to both of the roads named. This language is to be construed with reference to the then existing state of affairs. Each of these roads had then been incorporated. The towns empowered to grant the aid, were partly on the line of one of the roads and partly on that of the other. The corporations were distinct and separate, and had no common stock or bonds which the towns could subscribe for, purchase, or guarantee the payment of. Whatever aid was thus authorized, must be furnished to each road separately.
III. The defendant claims, because it is found that the Montpelier & St. Johnsbury Railroad Company has abandoned the building of a part of the line included in its charter, that there has been such abandonment of the enterprise to which the defendant subscribed as to render its subscription void. The referee does not find that such abandonment was made before the defendant issued the bonds from which the coupons for which recovery is sought, were taken. It is not evident how such abandonment, made after or before the bonds were issued, could affect the right of recovery of the bona-fide holder for value. The subscription of the defendant was to the stock of the Essex County Railroad Company, which was authorized to build a railroad from the Connecticut River, in Essex County, to connect with the Connecticut and Passumpsic Railroad in St. Johnsbury. None of this enterprise to which the defendant alone subscribed has been abandoned. If it would have made it a condition on which the validity of its subscription depended, that the Montpelier & St. Johnsbury Railroad Company should also build its road to Montpelier, it should have embodied it in its subscription. All agreements, understandings, and conditions not inserted in the subscription are made of no effect by s. 5, c. 28, Gen. Sts.
IY. The act of March 28, 1867, in conferring upon the defendant the power to aid in the construction of the Essex County Railroad by subscribing for its stock, provides that such subscription may be made “ when the assent in writing thereto of a majority of those paying taxes, both in number and amount of the grand list then in force, shall first be obtained by an instrument of assent,” dated, signed, and acknowledged, and specifying the grand list of the person assenting, and the substance of the
The objection that the instrument of assent did not set forth the substance of the contract to be entered into by the town, in that it did not specify the rate of interest which the bonds of the town should bear, except that it should not exceed seven per cent., is untenable. The law fixes the rate of interest where none is specified in the contract. The town, by the instrument of assent and subscription having fixed the limit which the rate should not exceed, and by assuming to act under the act, having cast the duty of issuing the bonds in payment of its subscription upon its selectmen and treasurer, impliedly authorized them to fix the rate of interest within the limits prescribed. At least, these officers having fixed the rate, executed the bonds, made a record of them in the town clerk’s office, issued and allowed them to be put upon the market, it is now too late to raise this objection, or that a
The same, substantially, may be said in answer to the objection that the bonds were prematurely issued, and before the road was completed as required by the subscription. The duty of issuing the bonds was by the act cast upon the selectmen and treasurer. Of necessity they must judge when they were required to perform that duty. The town was also cognizant of the fact that they were being issued, and took no steps to prevent it. It did not speak when it might, and must now be silent when payment is demanded by a purchaser for value.
We think the objection to the insufficiency of the certificate of the commissioners is without foundation. The insertion of the word “ as ” before the word “ signed,” renders it somewhat inartificial in expression, but does not affect its manifest meaning and the construction to be placed upon it.
It is further objected that the record both in the town clerk’s office and in the county clerk’s office is defective, and that as the making of these records is a condition precedent to the making of the subscription, no valid subscription has been made. The defects principally relied upon are the failure to record but one of the instruments of assent, and the fact that the copy lodged in the county clerk’s office is certified by the town clerk to be a copy of the record in his office, rather than a copy of the original documents. The assent was obtained by the circulation of seven printed instruments, all exactly alike in contents, to which signatures were obtained. No one of these as signed 'was of any validity to bind the town. It took the signatures to all these to make the requisite majority. They were all filed with the certificate of the commissioners and their oath attached in the town clerk’s office. The town clerk recorded but one of the printed instruments, and recorded the signatures, acknowledgments, <fcc., of the others as if they were attached to this one. Nothing in substance would have been added if he had transcribed on the record each one of the printed forms. We think the record as made was a substantial compliance with the requirements of the act. It furnished all the required information to the inhabitants
It is claimed that the plaintiff is not entitled to recover because the coupons are signed by the town treasurer alone, and because some of them were taken from bonds signed by only two of the three selectmen. The act is silent in regard to the execution of the coupons. It is not therefore a violation of, nor a non-compliance with, the act, that they are not signed by the selectmen. The bonds provide for the payment of interest. The coupons only re-express this liability. In the absence of any provision of the act regulating their execution, the signature of any town officer, or any execution, by which they can be unmistakably identified as a part of the bond from which they are taken, is all that is necessary. This is accomplished by the signature of the town treasurer. The duty of-signing the bonds is imposed upon the selectmen in their official capacity. The Gen. Sts. c. 15, s. 92, make the acts of a major part of the selectmen as valid as though executed by the whole board.
From the records in the town and the county clerk’s office, it appears that they were made before the executipn of the subscription by the commissioners. This is all that was necessary to be shown by the plaintiff, although the act requires that these records
By s. 1 of No. 172 of the acts of 1868, it was made the duty of the selectmen of the defendant, in the absence of the appointment of a special agent for that purpose, to manage, control, vote on, &c., the stock subscribed for. It is found by the referee that the selectmen of the defendant voted on the stock subscribed and paid for by it, at the annual meetings of the railroad company for 1871 and 1872; that the issue of the bonds began in 1871, and continued to 1876 ; that a record of the same was made by the town clerk ; that coupons from the bonds were paid by the railroad company, and returned to the town treasurer; and that the town treasurer took receipts from the railroad company for the bonds as they were delivered. From these acts of the town and its officers, it may be questioned whether the town did not acquiesce in and ratify the bonds, and waive any irregularity or informality which occurred in their issue. But it is unnecessary to decide this point. For other reasons already indicated, the proforma judgment of the County Court must be reversed, and judgment rendered for the plaintiff to recover the amount of the coupons reported, with interest and costs.
Ante, p. 178.