The opinion of the court was delivered by
“And whereas, some question has arisen as to the propriety and legality of subscribing the stock and issuing the bonds provided for by the election of the 7th of May 1867 to the Tebo & Neosho Eailroad, and whereas, it is considered that the foregoing order, in addition to the one affirmed on the 7th of May 1867 aforesaid, will be generally satisfactory to the people of this county, it is therefore ordered and provided, that the decision of this question by the qualified voters of*202 said county, at the said election, in favor of such subscriptions, shall be also a decision in favor of the former subscription of the 7th of May 1867 being made at once to the Tebo & Neosho Rld. Co., and the board of county commissioners will accordingly in such case make the subscription authorized by said election of May 7th 1867, and will issue the bonds therein provided for as soon as the terms and conditions of said subscription are complied with by said .Railroad Company.”
A -canvass of the votes cast at this election showed 1428 votes for, and 703 against the proposition. This result was declared by the canvassers, and thereafter the bonds were issued, and for value transferred to the plaintiff.
Upon these facts four questions are raised as to the authority' of the commissioners to issue the bonds.1 First: "Was the presentation óf a petition signed by one-fourth of the qualified voters a condition precedent to any action by the commissioners, and without which no power to issue bonds passed to the county authorities? Second: Did the failure to name the railroad corporation avoid the whole proceedings? Or, as counsel have stated the question in their brief,'“ Could a subscription be made to the stock of the Tebo & Neosho Rid. Co., under and by virtue of the order of March 8th 1867, and the vote of May 7th 1867, that corporation not being named as the recipient of the proposed subscription?” (This question is discussed more fully by counsel in a case submitted subsequent to this, that of the Mo. River, Ft. Scott & G. Rid. Co. v. Miami County, and we may have occasion to refer to the briefs and arguments in that case.) Third: A majority of votes having been cast (May 7th, 1867,) as a matter of fact against the proposition, were the county board authorized to subscribe the stock and issue the bonds? Fourth: If no authority existed theretofore, did the proceedings of July 23d 1869, and the subsequent vote, confer authority?
I. We shall not stop to discuss the first question raised, but will dispose of it by simply saying that if this were the only objection we should deem it cured by the act of 1868. (Gen. Stat., 892.)
*204 “Sec. 1. The board of county commissioners of any county •to, into, through, from or near which, whether in this or any other state, any railroad is or may be located, may subscribe to the capital stock of any such railroad corporation in the name and for the benefit of such county, not exceeding in amount, * * * but no such bonds shall be issued until the
“ Full power is conferred upon the board to subscribe for the stock and issue the bonds, when a majority of the voters of the county have determined in favor of the subscription, after due notice of the time and place of the election. The case assumes that the requisite notices were not given of the election, and hence that the vote has not been in conformity with the law. This would seem to be decisive against the authority on the part of the board to issue the bonds, were it not for a question that underlies it; and that is, who is to determine whether or not the election has been' properly held, and a majority of the votes of the county cast in favor of the subscription ? Is it to be determined by the court, in this collateral way, in every suit upon the bond, or coupon attached, or by the board of commissioners as a duty imposed upon it before making the subscription? The court is of opinion that the question belonged-to this board. The act makes it the duty of the sheriff to give the notices of the election for the day mentioned, and then declares, if a majority of the votes given shall be in favor of the subscription,*209 the county board shall subscribe the stock. The right of the board to act in an execution of the authority is placed upon the fact that a majority of the votes had been cast in favor of the subscription, and to have acted without first ascertaining it, would have been a clear violation of duty; and the ascertainment of the fact was necessarily left to the inquiry and judgment of the board itself, as no other tribunal was provided for the purpose. This board was one from its organization and general duties fit and competent to be the depositary of the trust thus confided to it.' The persons composing it were elected by the county, and it was already invested with the highest functions concerning its general police and fiscal interests. We do not say that the decision of the board would be' conclusive in a direct proceeding to inquire into the facts previously to the execution of the power, and before the rights and interest of third parties had attached; but after the authority has been executed, the stock subscribed, and the bonds issued and in the hands of innocent holders, it would be too late even in a direct proceeding to call it in question. Much less can it be called in question to the prejudice of a bona fide holder of the bonds in this collateral way.”
We have made this lengthy quotation because it contains as clear and complete a statement of the views .therein expressed as can anywhere be found, and also because it is from the leading case in that court. The views therein expressed have been uniformly adhered to by that tribunal: Bissell v. City of Jeffersonville, 24 How., 287; Morgan v. Miami County, 2 Black, 722; Gelpeake v. City of Dubuque, 1 Wall., 175; Mercer County v. Sackett, 1 Wall., 83; Van Hostrup v. Madison City, 1 Wall., 291; Supervisor v. Schenk, 5 Wall., 772; Pendleton County v. Amy, 13 Wall., 297; City of Lexington v. Butler, 14 Wall., 283. It will be observed that this language does not affirm that the determination of the county commissioners gives authority to issue bonds; but only, that that determination estops the county from denying the authority. All that is asserted, and all that can be found in any of the opinions, is, that that determination is- evidence of authority otherwise given, evidence that is conclusive in an action by a bona fide holder. It is like any other canvass — evidence,
We have given this case, and the questions involved in it, full and careful and patient consideration, both on account of the amount in controversy here, and because' of the many interests which may be affected by the decision of these questions. The conclusions we have reached are, that the proceedings of March 8th 1867 were void because no railroad corporation was named as the recipient of the proposed subscription and bonds; that the election of May 7th 1867 conferred no authority, because a majority of the votes cast were against the granting of authority; that for a like reason the curative act of 1868 did not apply to that election; that 'the proceedings in 1869 conferred no authority, because no question of issuing these bonds was submitted to the voters of Bourbon county, and because an attempt to submit two questions to a single vote is unauthorized by the statute, and a fraud upon the people; that there being no recitals on the face of the bond, the county is not concluded by the mere fact that the commissioners issued them, even in favor of a bona fide holder; that the want of authority to issue appears on the records of the county, and that the purchaser is referred to those records by the bond itself, and is chargeable with notice of their contents.
It follows therefore that judgment must be entered in favor of the defendants.