50 Miss. 735 | Miss. | 1874
delivered the opinion of the court:
This bill was exhibited by the complainants, tax payers of Carroll county, to restrain the issuance and delivery of the bonds of Carroll county to the amount of $125,000 to the Greenville, Columbus and Birmingham Railroad Company. On the 3d of March, 1873, an application was made by D. A. Butterfield, president of the company to the board of supervisors, to submit to the electors of the county the proposition of making the subscription. On the
Subsequently at a day in July, the board of supervisors declared that the proposition for subscription had been carried by a vote of two-thirds of the electors, and directed the bonds to be executed by the president, and placed in the hands of three trustees, named in the order. On the 1st of April, 1873, the registration books showed the names of 3,129 voters. It was admitted as proved, but its competency and relevancy was reserved, that there were from 2,000, to 2,500 qualified voters in the county; that 2,500 votes were polled at the presidential election, the 5th November, 1872, and 1,900 votes at the November election, 1873.
On these facts, the question was elaborately and ably discussed by counsel, whether, First, the election in favor of subscription, was carried in accordance with section 14 of article 12, general provisions of the constitution. It is as follows:
“Sec. 14. The legislature shall not authorize any county, city or town to become a stockholder in, or to lend its credit to, any company, association or corporation, unless two-thirds of the qualified voters of such county, city or town, at a special election, or regular election, shall assent thereto.”
The language assumes that the authority-of the legislature is necessary to enable the county, city or -town to become a stockholder or lend its credit, and then puts a limitation upon legislative discretion and authority in an important particular, viz: the authority shall not be granted “ unless two-thirds of the qualified voters of such county * * * at a special * * * or general election shall assent thereto.”
The practice had grown up, and had been very generally adopted by the states, of allowing the civil municipal subdivis
The 5th section of the 12th article, prohibits the pledging the faith of the state in aid of any person, corporation * * * nor shall the state become a stockholder in any corporation or association. The 14th section allows the right to a municipality which the 5th section denied to the state, but not “ unless two-thirds of the qualified voters at an election assent thereto.”
Manifestly, the intent was to guard and protect the local public from such,burdens, unless, upon the assent of two-thirds of the voters, manifested by an election.
It is contended on the one side, that the intendment of the 14th section is satisfied, if two-thirds of those who vote at the election, are for the subscription, although that may be less than two-thirds of the qualified voters of the county. On the other side, it is contended, that the question is not carried unless two-thirds of all the qualified electors vote for it.
Dillon Municipal Corp., 1 vol., § 215, states the principle thus: “ If an act is to be done by an indefinite body, it is valid, if passed by a majority of those present at a legal meeting. No matter how small a portion these may constitute of the whole number entitled to be present, those who stay away are conclusively presumed to assent to what may be lawfully done by those who attend.”
The statement of the principle by the supreme court of Pennsylvania in the St. Mary’s church case, 7 S. & R, 517 is: “The fundamental principle of every association for self government, is that no one shall be bound except with his own consent, expressed by himself or his representatives, but actual consent is immaterial, the assent of the majority being the assent of all.”
The principle which runs through the cases is, that a majority of the legal voters who choose to vote, constitutes an election. A dissent without a vote is of no avail. Oldknow v. Wainwright, 1 Wm. Bl., 229; Rex. v. Foxcroft, 2 Burr, 1017; First Parish of Sudberry v. Stearns, 21 Pick., 154.
This principle, that where the electoral body is indefinite, a majority of the votes cast determines the election, originally applied to corporations, aggregate, to the election of officers, has been extended in analagous cases to questions propounded to be adopted or rejected by votes. 1 Sneed. (Tenn.), 638; 21 Pick., 148; 37 Mo., 272; 38 Mo., 450; 16 Wallace, 644; 9 B. Monroe, 326.
It may be admitted, that in the absence of any constitutional
The principle upon which the court rested its judgment was, that the return of the officer of the votes on the proposition of removal of the county seat was not conclusive of the number of voters in the county. But the vote given for the circuit judge might be looked at as showing that there were a larger number of voters than those voting for the removal. It is distinctly conceded in the carefully considered case reported in 1 Sneed., supra, that the law might refer to the vote cast for governor at the last election, or for the president, as a test of the number of voters.
If those who do not vote are taken as conclusively assenting to the majority, then the application of that rule in this case would have precluded the court from any inquiry or necessity of inquiry, as to the number of electors in the county. It accepted those who voted for the circuit judge, as evidence that there were more voters than those who cast ballots for or against the removal. The court
None of the authorities deny or dispute the position that if the law requires a majority of the electors of a county, city or town to vote for a'proposition, before the subscription or credit shall be given, or the other thing contingent on the vote shall be done, that the proposition fails, unless such majority is given. Is the ballot box the test of the result?
The practical question presented is, whether the constitution means if one, or five, or one hundred vote for the aid, the measure is carried ; or whether it means that a definite number of the entire body entitled to the ballot, must assent by an affirmative vote,. that definite number being two-thirds of the whole body.
Unless the law under which the vote is taken intends otherwise, the ballot is the test in two particulars: first, of the number of the electors, and second, if there be those who do not vote, then that they acquiesce in what the majority voting do. The rule in its original application to corporations, and the election of officers, originated in necessity. That there should be no vacuum in those offices in which the constituent body or tbe public had an interest, there was no mode by which the elector could be compelled to vote. That there might be no interruption in the functions of office, a majority choosing to exert their privilege was sufficient to fill the place. But as we have seen in cases other than the election of officers, the count of the ballots is accepted as the criterion of numbers, not because of the inflexible rule of law, but of the seemingly insuperable difficulty of getting any other which is not loose, shifting and unreliable. The necessity of the rule for the sort of elections for which it was framed, is apparent. When the practice obtained in these late years of giving municipal aid to railroads, and other public enterprises, on an approving vote of the people, the courts applied the rule in reference to the election of officers. If no other
Recurring to the 14th sec. of art. 12, and giving to the words their ordinary signification, what is their obvious and grammatical import? It seems to be plain that the “county * * * shall not become a stockholder or lend its credit, * * * unless that is (upon no other condition than) two thirds of the qualified voters * * * * at a special or general election, * * * shall assent thereto.” All would agree that the requisite number “ two-thirds ” must assent. That “assent” to fulfill the demands of the language must be given or expressed, in some mode or orther, at an “ election.” The two-thirds thus assenting, must be that number of the “qualified voters of the county.” The debatable ground begins at this point. How within the intent of the constitution shall this “ two thirds” manifest or give evidence at an election of “ assent,” by staying away from the polls, or being present and voting? The constitution which, in the 5th section of the same article, had absolutely prohibited the faith of the state from being pledged or loaned for such a purpose; and which was putting restrictions on the power of the legislature, to author
The power granted to the municipality is, in effect, a power to tax: “Taxes are burdens imposed by the legislature upon persons or property, to raise money for ‘ public purposes.’ ” Manifestly the object to which the aid is extended must be “public,” in the sense that it will contribute to the convenience, prosperity and general advantage of the “local public.” It has been established by authority, that aid tp a railroad corporation is a “public purpose,” for which the county may lend its aid. But that has not met the universal approval of the judicial mind. But aid to a steam saw and grist mill company, Allen v. Inhabitants of Jay, 60 Maine Rep., 124, or for any private business of manufacturing, or for aid to a school established by the will of a citizen, Jenkins v. Andover, 103 Mass., 91, or a school which was a private enterprise, Curtis v. Whipple, 24 Wis., 350, are not “public purposes” for whose benefit taxes may be imposed, although such businesses may contribute to the improvement of the community where located.
Long usage and acquiescence have declared railroads as one of the “ public purposes,” for which municipalities may impose taxes on persons and property. It would not be safe, wise or prudent to push the power beyond the line already established in usage,
We are persuaded,, that the constitution, for the protection of minority interests, intended that this power of creating a debt to be paid by taxation, for a local “public object,” should only be exercised, after it had been approved by that preponderating number of the voting class (two-thirds) as would give reasonable assurance that not only the object upon which the aid was bestowed, was a proper one, but also that the judgment of those most interested approved the loaning of the credit. It meant to put it out of the power of the few to impose the debt upon the many. To make it impossible for those proposing to construct a railroad (for instance) to procure the bonds of a county in its aid, unless the scheme had the deliberate approval of the people, manifested by their votes.
When a statute, or section of the constitution is expressed in
The observations of Bronson, J., in People v. Purdy, 2 Hill (N. Y.), 35, have great force; remarking upon the danger of departing from the import and meaning of the words employed to express the intent, and hunting after probable meanings, not clearly embraced in the language, he says: “ In this way the constitution is made to mean one thing by one man, and something else by another, until in the end, it is in danger of being rendered a mere dead letter, and that too when the language is so plain and explicit that it is impossible to mean more than one thing, unless we lose sight of the instrument itself, and roam at large in the fields of speculation.”
To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the “words” convey a definitite meaning, which involves no absurdity or contradiction with other parts of the instrument, then that meaning apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed; and neither the courts nor the legislature have a right to add to or take from that meaning. Newell v. People, 7 N. Y., 97; Denn v. Reid, 10 Pet., 524; Leonard v. Wiseman, 31 Md., 204; Cooley Con. Lim., p. 57.
What is the meaning of the word “ assent,” as used in the 14th section ? Lexicographers define it, “ the act of the mind in agreeing to, or assenting to a thing,” “ consent,” or “agreement.” Consent is defined to be, “ agreement in opinion or sentiment,” “ the being in one mind,” “ accord,” “ concurrence.” Giving to “ as
The constitution is explicit in laying down a test of the number of votes requisite to approve an amendment proposed. 13th Art. ; “ And if it shall appear that a majority of the qualified electors, voting for members of the legislature, shall have voted for * the amendment, then it shall be inserted,” etc.
The constitution of Tennessee, adopted in 1870, contained this-clause: “ No part of the county shall be taken off without the consent of two-thirds of the qualified voters of such part.” The question considered in Cocke v. Gooch et al., 5 Heiskel, 308-9, et sequiter, was whether the clause meant two-thirds of those actually voting, or “ two-thirds of the qualified voters in the part of the county proposed to be “ taken off.” It will be remarked, that the language is of tantamount import, with that of the 14th section of the 12th .art. of our constitution, unless the word “consent,”' in the former, has a more specific meaning than the word “ assent,”' in the latter. It is manifest that “ assent,” as used in the constitution of New York, above quoted, meant an expression of opinion by a “ vote.” That comports, as we have seen, with the definition of the term. In the Tennessee constitution, the “thought”’ embodied in the word “ consent ” is the same, viz: that “ two-thirds of the qualified electors ” shall manifest their concurrence by their votes, and such was the intent of the provision as held by the court.
That was the “fact” upon which the title to relief rested.
Perhaps, under the machinery contemplated in the 2d and 3d sections of article 9 of the constitution, and the statutes passed to give them effect, better means exist in this state than elsewhere of determining the result of an election, such as was held in this case. The 2d section declares the qualification of voters, their requisite sex, age, residence in the county and state, registration, and citizenship'of the United States. The right of those having the other qualifications to vote is completed and evidenced by registration. 3d section, and statutes on the subject. This section intends a registration “ of all persons entitled to vote at any election,” so that the evidence may exist in favor of those who-have acquired the right by moving into the county, attaining majority, etc. There exists, therefore, in each county, a registration of the list of voters, which ought to show, with approximate accuracy, the names of those entitled to vote “at any election.” In ascertaining, therefore, the result of an election requiring two-thirds of the qualified voters of the county to assent thereto, we think that the registration books are competent evidence on the
We are of opinion, therefore, that this proposition to subscribe for stock and issue bonds did not receive the assent of the number of voters required by the constitution.
There is no power, then, in the board of supervisors to impose •the burden on the county, unless something has intervened which estops the tax-payers from claiming the relief sought.
The boards of supervisors are a quasi corporation, with a general jurisdiction of the subjects confided to them in the 20th section of 6th article of the constitution; after the enumeration follow the words, “and perform such other duties as shall be provided by law.” The grant of power to such a body, of an extraordinary character, such as is not embraced in the general scope of its duties must be strictly construed. When exerting jurisdiction under a special law, it must act strictly on the conditions under which it is given. In Ballard v. Davis, 31 Miss. Rep., 526, it is said the terms of the law conferring a special jurisdiction (there a tax for levee purposes) must be strictly pursued in the mode prescribed in the statute. The same rule has been enforced else
Another manifestation of the principle is, where one acts under delegated authority, as an agent or an officer of the government. There is no controversy or disagreement in the courts as to the general rule. In Hagan v. Barksdale, 44 Miss. Rep., 191, it is said: “those dealing with others (not in virtue of original, inherent right), but acting as delegates for others must, at their peril, know the extent and measure of the authority. Others are bound, if at all, by reason of the authority delegated for that purpose.”
In the matter of the Floyd acceptances, 7 Wallace, 676, the doctrine is applied in all its force, to the acts of an agent or officer of the government, in transactions in negotiable paper. The person who deals with him knows that he acts by virtue of a delegated power; “ must, at his peril, see that the paper on which he relies comss within the power on which the agent acts. This applies to every person who takes the paper afterwards. For the protection which commercial usage throws around negotiable paper can not be used to establish the authority by which it was originally issued.” “These principles,” say the court, “are applicable to the transactions of government.”
A county has no inherent right to become a stockholder in a railroad corporation, or any other association for making public improvements, nor can it issue its bonds for such purpose.
If empowered so to do, it must conform to the conditions prescribed in the law. By the statute, the board of supervisors is made the organ and instrumentality of the county. But its power does not come into existence except upon certain conditions, which are of the nature of conditions precedent. Those are an approving vote of the constitutional majority at an election, assenting thereto. If the requisite notice of the election has not been given, or it has not been held at the proper time and place,
How far these or any of these matters of defense may be set up against a bona fide holder of the bonds acquired in due course of business, the authorities are not agreed.
Many of the state courts, after great deliberation, have held that the officers of a municipality, inasmuch as they are exerting an extraordinary power, do not bind the county to pay the subscription or the bonds, unless issued in conformity to the law, which is, as to them, a power of attorney, and that any person proposing to purchase bonds, must, at his peril, enquire as to whether they are legally issued or not.
Other courts, especially the federal tribunals, hold that if a statute authorized the county or other municipality to give the aid, and issue the bonds, then the presumption will be indulged conclusively in favor of the bona fide holder; that alt the conditions and prerequisites have been complied with, and that the county or municipality is estopped from setting up such non-compliance with law. Perhaps in all the cases in the supreme court of the United States, the bonds themselves contained a recital of a compliance with the conditions precedent, or the records of the county imported on their face such compliance. The cases in that court are Knox County v. Aspinwall, 21 How., 539; Bissell v. Jeffersonville, 24 How., 287; Pendleton v. Amy, 13 Wallace, 298; Lexington v. Butler, 14 Wallace, 282; Grand Chute v. Winegar, 15 Wallace, 355; Kennicott v. Wayne County, 16 Wallace, 452; Moran v. Miami County, 2 Black, 722; Gelpcke v. City Dubuque, 1 Wallace, 175; Supervisors v. Schenck, 5 Wallace, 772.
Many of the state courts hold to the opposite view, viz : The invalidity of the bonds may be pleaded against a bona fide holder, in that the bonds were not issued by the municipal authority, in the circumstances authorized by law. People v. Mead, 24 N. Y., 124; Harding v. Rockford & R. R. R. Co. (supreme court, Illinois), Chicago Legal News, vol. 5, 424; 11 Ohio St., 183 ; State v. Green County, 54 Mo., 574; State v. Callaway County, 51 Mo., 402; Carpenter v. Lathrop, 51 Mo., 483.
It is not involved in this case, and we forbear to express an opinion upon it, as to how far the county or the tax payers are estopped, and concluded from setting up the character of defenses, we have been considering, after the bonds may have been purchased by a bona fide holder.
The bonds in question have not been negotiated. No person has yet acquired the privileges of a bona fide holder.
The legislature had no power in the first instance to authorize the subscription and issuance of bonds, except upon the vote of the county.
If the project was not adopted by the requisite majority, plainly the legislature could not by a curative statute, cure so radical an infirmity. If there*were mere irregularities in the election, at which two-thirds of the voters give their assent, these may be cured; but not the failure to hold an election, or a failure of the requisite majority. For that would be to impose the obligations on the county, in circumstances not warranted by the constitution and laws.
It has been argued also that the decision of the supervisors that the project was approved is conclusive on the county. That which confers the authority on the board is the vote of the two-
We are satisfied that the complainants are not estopped by any or all the matters relied upon, írom a contestation of the validity of the bonds. The suit was instituted before the bonds had been negotiated, and before third persons had acquired vested rights in them. We refer to the cases hereinbefore cited. Citizens Savings and Loan Association, etc., v. City of Topeka, Sup. Ct. U. S., February 9, 1874; Cent. Law Jour. (1875), pp. 156-9.
Decree reversed, and judgment may be rendered in this court.