116 Ky. 108 | Ky. Ct. App. | 1903
Opinion op the court by
Reversing.
The Cumberland & Ohio Railroad Company was incorporated by an act approved February 24, 1869 (1 Sess. Acts, 1869, p. 463, c. 1578). It was vested with power to construct and operate a railroad from the Ohio river, through the counties of Henry, Shelby, Washington, Nelson, Marion, Taylor, Green, Barren and Allen, to a point on the-boundary line between the States of Kentucky and Tennessee, “to be selected by the president and directors, about due north from the town of Murfreesboro, Tennessee, with a view of comnecrting with the southern systems of railways-converging at Nashville, Tennessee.” See Charter, section 12 J1 Sess. Acts, 1869, p. 468, c. 1578). Any city, town or county through which the proposed road should pass was-authorized to subscribe stock in the railroad company in any amount it desired, and to issue bonds therefor, payable to bearer, with coupons' attached, bearing interest not exceeding 6 per cent., payable in the city of New York at not more than thirty years from date; but, before any such subscription should be valid, the question of making it should be submitted to the qualified voters of the munic
At its June term, 1869, the following request was filed in the Green county court: “We, the undersigned commissioners of the Cumberland & Ohio Railroad Company, hereby request that the county court of Green county submit to a vote of the -qualified voters of said county the question
Appellee, James D. Shorten, is the holder -of six of these bonds, each for ttoei sum of $1,000, and of one bond for $500., He filed this suit against the county of Green to recoVer on the past-due coupons. The county pleaded in defense of the suit the conditions above set out. On the former appeal a demurrer was sustained to the answer on the ground that it did no:t state the facts relied on sufficiently to raise the question aimed to -be presented. See Shortell v. Green County, 22 R., 1010, 59 S. W., 522, 23 R., 144, 63 S. W., 979. On the return of the case to the circuit court, the answer was amended so as to set out all the facts above '-stated, and it was pleaded that the -conditions upon which the subscription was madia had not been complied with; that the Cumberland & Ohio- Railroad failed to erect or construct a line of railroad through Green county, or within one mile of the town of Greensburg; that there is no railroad now, -and never was any railroad, running through Green .county; that no part of the amount subscribed was ever spent in Green county in the construction of any railroad
0It is conceded that the appellee is a bona fide purchaser of the bonds, without notice of the defense now set up by the county, and the question to be determined is whether, notwithstanding this, the defense relied on is good against him. In determining this question, an important distinction is made by the authorities between those bonds which contain recitals certifying that the preliminary requisites for the issue of municipal bonds have all been complied with, and bonds containing m> such recitals. Thus in Citizens’ Savings Association v. Perry County, 156 U. S., 701, 15 Sup. Ct., 550, 39 L. Ed., 585, the United States Supreme Court said: “But it is urged that, the bonds having been executed and issued by those whose duty it was to execute and issue them whenever that could be rightfully done, tba county is estopped to plead their invalidity as between it and the bona fide purchaser for value. This argument would have force if the material circumstances bringing the bonds within the authority given by law were recited in them. In such a case, according to the settled doctrine of this court, the county would be estopped to deny the truth of the recital as against bona fide holders for value. But this court in Buchanan v. Litchfield, 102 U. S., 278 (26 L. Ed., 138), upon full consideration, held that the mere fact that the bonds were issued without any Tecital of the circumstances bringing them within the pow
It is insisted, however, for appellee, that, by the terms of the subscription, it was made upon the condition that the bonds should not be issued, or the, county pay any part of either the principal or interest of the amount subscribed, until the county was exonerated from the payment of its subscription to the Elizabethtown & Tennessee Railroad. It is urged that this part of the condition was made- precedent to the issuing of the bonds, but that the rest of the condition, to the effect that the company should locate and construct its road through Green county, or within one mile of Greansburg, and expend the amount subscribed in' Green county,' was not made a condition precedent to the issue of the bonds, aind therefore only an obligation was imposed upon the railroad company, for the performance of which the county only looked to if. It is also insisted that it is shown by the record that the subscription to the Elizabethtown & Tennessee Railroad was void. We .can not concur in either of these conclusions. The meaning of the contract, taken as a whole, is that the subscription is upon the condition that the company shall .locate and construct its railroad through Green county, and within one mile of Greensburg, and expend the amount subscribed in the limits of Green county; and the further condition is added that the bonds are not to be issued, or anything paid on account of the subscription, until the county is exonerated
It is insisted that the order is void because the county court, instead of making the - subscription, delegated this duty to its clerk; and Mercer County Count v. Kentucky River Navigation Company, 71 Ky., 300, is relied on. But in that case the order of the county court appointing the commissioner to make the subscription contained these words: “But said commissioner is directed not to subscribe said stock, or any part thereof, until said company shall, by proper orders entered on the books, agree that no part
Again it is urged that four and one-half miles of railroad have been built in Green county by .a successor of the Cumberland & Ohio Railroad Company, and this is relied on
The fact that the county paid the interest on the bonds for a few years does not estop it to show their invalidity. Norton v. Shelby County, 118 U. S., 425, 6 Sup. Ct., 1121, 30 L. Ed., 178; District Tp. of Doon v. Cummins, 142 U. S., 366, 12 Sup. Ct., 220, 35 L. Ed., 1044; Mercer County v. Providence Life & Trust Co., 72 Fed., 623, 19 C. C. A.,. 58; Graves v. Saline Co., 161 U. S., 373, 16 Sup. Ct., 526,. 40 L. Ed., 732.
We, therefore, conclude that, upon the facts shown, the county of Green is not liable upon the bonds sued on, and that the court should have overruled the demurrer to the answer. As the case was submitted both on a demurrer and a motion for judgment, notwithstanding the answer, we will not now direct a judgment to be entered for the defendant. As the bonds in contest contain no recitals, no opinion is intimated on the conflict of authority referred
Judgment reversed and cause remanded for further proceedings not inconsistent herewith.
Whole court sitting, except Judge Settle, who declined to sit in the case.
Petition for -rehearing by appellee overruled.