Morris v. Commissioners of Morris Co.

7 Kan. 576 | Kan. | 1871

Lead Opinion

The opinion of the court was delivered by

Valentine, J.:

statement <>f pieaiings. The principal facts in this case, as shown by the pleadings, are as follows : On the 17th of January, 1871, the plaintiffs in the court below, who are plaintiffs here, filed in the clerk’s office of the district court for Morris county their petition setting forth in substance that they were tax payers of said Morris county, and the owners respectively of certain described real and personal property therein, on which an assessment and levy of taxes had been made, by the proper officers of said county, for the year 1870, for the purpose of paying the interest on certain bonds issued by the board of county commissioners of said county to the Union Pacific Railway, Southern Branch, and to provide a sinking fund, etc.; that the said William P. Shamleffer as Treasurer of said county, and Jonathan Hammond as county clerk of said county, were respectively threatening to take certain steps to enforce the collection of the taxes assessed against the said property of plaintiffs for the payment of interest and sinking fund on said bonds. The petition sets out in full the record of the board of county commissioners of said county, upon which the issuance of said bonds was predicated, from which it appears, that on the 27th of May, 1867, a petition was presented to the said Board, signed by one-fourth of the legal voters of said county, praying that a special election be held for the purpose of deciding whether or not the county of Morris should take stock in the Union Pacific Railway, Southern Branch, to the amount of $ 165,-000, payable in thirty-year seven-per-cent, bonds of the county, upon certain conditions therein specified, a portion of which were, that work should be commenced on said road at or near Junction City within one year from voting the bonds, and that the same should be completed to Council Grove in two years from the same time, and to the Lyon county line in six months thereafter; that the said board of commissioners did order said election, according to the prayer of said petition, and that the same was held on the 29th of June, 1867, and resulted in favor of said subscription; that on the 17th of April, 1869, the said railway company presented to the said board of commissioners a resolution of its board of directors, of date April 12th, 1869, requesting said board of commissioners to submit to the voters of said Morris county a proposition granting an extension of time of four months to said company to complete their road to Council Grove and through the county, and the bonds to be issued in thirty days after making the points specified; that thereupon the said board of commissioners did call a special election to be held on the 22d of May, 1869, to vote upon the following proposition: “ Shall the time “ within which the Union Pacific Pailway, (Southern “ Branch) Company were to complete their road to Coun- “ cil Grove in said county, according to the conditions of “the vote taken in said county, on-the 29th of June, “ 1867, be extended to the 1st day of November, 1869, “ saving to the said company their right to the bonds “voted on the 29th of June, 1867, upon the following “additional conditions:” (Then• followed certain con- “ ditions immaterial to this proceeding, with this possible “ exception: “ The said bonds to be issued within thirty “ days after the road is completed to the points specified “in the proposition voted upon the 29th of June, 1867;”) that the said election resulted in favor of the proposition submitted; that on the 4th of October, 1869, the board of commissioners directed their chairman to “ subscribe, for and on behalf of said Morris county, one hundred and sixty-five thousand dollars of the capital stock” of said railway company, upon the conditions hereinbefore specified, and to issue, in connection with the county clerk, the bonds of said county to a like amount, payable in thirty years; that afterwards the said chairman did so-subscribe, and issue the bonds, which action was on the 3d of January, 1870, approved by said board of county commissioners; that on the 5th of September, 1870, the said board of commissioners 'levied a tax of ten mills upon the property in said county for “ railroad purposes,” which said tax 'is the one the attempted collection of which is complained of. The petition further alleges that each of the steps taken which resulted in the issuance of said bonds, the levy of the tax, and the bonds themselves, are wholly void, and concludes with a prayer for a perpetual injunction restraining the said county officers, or either of them, from proceeding to collect said tax from plaintiffs. To this petition the defendants interposed a general demurrer, which waB sustained. The district court denied the relief sought, and dismissed the plaintiffs’ petition; to all of which plaintiffs' excepted,, and now bring their case here for review.

In this case counsel for-plaintiffs in error raise or attempt to raise three questions:

First: They claim that the acts of the legislature under which said elections were had, stock subscribed, and bonds issued, were unconstitutional and void.

Second: They claim that the county commissioners had no authority to subscribe for said stock, or to issue said bonds except under the act of 1865 (ch. 12, p. 41,} and the amendatory act of 1866, (ch. 24, p. 72,) under which the first election was held; and that said acts were repealed before said stock was subscribed, or said bonds-issued, and therefore they claim that said subscription and said bonds are void.

Third: They claim that the condition upon which the county commissioners were authorized to subscribe for .said stock, and to issue said bonds, were not complied with by the railroad company, and therefore they claim, that said subscription and said bonds are void.

i. statutes núEBfHoLS™ .and valid. I. The first question was considered while we were examining the cases of the Commissioners of Leavenworth County v. Miller, (ante, p. 479,) and The State ex rel. The Saint Joseph and Denver City Railroad Co. v. Comm’rs of Nemaha County, (ante, p. 542,) and was when we decided those cases. "We think those acts are constitutional and valid. We shall therefore, without any further consideration of this question, proceed to the consideration of the other two ■questions.

a. Acts of isas, I860, and 186S, ío!.dlbond°,r“u‘ construed. II. The said acts Of 1865 and 1866 have never been, •expressly repealed, and if they have ever been impliedly repealed, all rights, power and authority that had accrued under them, prior to their repeal, have, at least, been impliedly preserved. It is claimed that sec-ti°ns 1 and 2 of ch. 119, Gen. Stat., 1868, entitled, An act concerning the General Statutes, (pp. 1123 to 1128,) impliedly repeal said acts. If they do, then sections 6 and 8 of. said ch. 119, and the act entitled “ An Act to authorize counties to issue bonds to railroad ■companies,” passed by the same legislature, and approved February 25th, 1868, (Gen. Stat., 892,) have preserved .all rights and powers that had accrued under said acts. Said section 6, ch. 119, provides that “ The repeal of the acts and parts of acts revised and reenacted in the General .Statutes aforesaid, or repugnant to the provisions thereof, shall not * * * affect any act done, or right accruing or accrued,” etc. Said section 8 reads as follows :

“ Seo. 8. The provisions of the General Statutes, so far as they are the same as those of prior laws, shall be comstrued as a continuation of such laws, and -not as new enactments.”

And section one of the said act “ to authorize counties to issue bonds to railroad companies,” (Gen. Stat., 892,) reads as follows :

“ Seo. 1. Whenever a majority of the persons voting at any election called by the board of county commissioners of any county have heretofore voted in favor of subscribing stock and issuing bonds to any railroad company or companies, the board of county commissioners of such county may subscribe to the capital stock of such railroad company or companies, to the amount and on the conditions specified in the order of such board of county commissioners in such eases, and pay such subscriptions by issuing to each company bonds of such county, at par, payable at a time therein to be fixed, not exceeding thirty years from the date thereof, bearing interest at the rate of seven per cent, per annum, with interest coupons attached, whether such orders and elections, or either of them, have been in compliance with the statutes, in such cases made and provided, or not, or whether the proposition submitted at the election had, was for the subscription of stock and the issuance of bonds to one or more railroad companies.”

These sections just quoted still remain upon the statute book unrepealed. At the same ession of the legislature at which these sections were enacted, another statute was enacted giving power to counties to subscribe for stock and issue bonds to railroad companies. (Gen. Stat., 208, 204, §§ 51 to 54.) This last mentioned statute was for the future, while the other statutes just quoted -were to preserve intact all that had been done prior to that time. Whatever was done under the acts of 1865 and 1866, prior to the passage of the acts of 1868, continued in force the same as though the said acts of 1868 had never been passed.

s. conditions fixed ac one bo&wkey;g?dby eiectionfnt III. It is claimed that the conditions upon which the county commissioners were -authorized to subscribe for said stock and to issue said bonds were not complied with that shows this. Counsel for plaintiffs in error nothing in the record brought to this court by the railroad company. Now there is have not under Rule 2 of the Rules of the Supreme Court referred us to anything that shows this, and upon examination we find nothing in the record that shows it. It does not conclusively follow that because the railroad company petitioned and the county voted to extend the time four months to the said company to complete their road to Council Grove, and through the county that the railroad company did not complete their road to Council Grove and through the county within the time prescribed by the first vote; and this is all that there is in the record that tends to prove that the railroad company did not comply with the conditions of the first vote. But we will suppose that the railroad company failed to complete their road to Council Grove, and through the county, for three •or four months after the time prescribed by the first election, yet there is nothing to show that they did not so complete it within the time prescribed by the second election ; and if so, that was sufficient. The second election was amendatory and supplemental to the first election, and changed the conditions prescribed by the first election just so far as the people intended to change such conditions. It seems to be admitted that the second election was held in all respects in accordance with the then existing law upon the subject, (ch. 29, laws of 1869, pp. 108, 109, 110,) except that it was an election to change certain conditions prescribed by a previous election, instead of an original election to subscribe for stock and issue bonds to a railroad company. We think the second election was valid as a supplementary and amendatory election.

This is not a preceeding to determine whether bonds may be issued or not. The bonds have already been issued, and the county has the stock of the railroad company, which it has received in payment therefor. The county commissioners, the agents of the county, have determined that all the conditions upon which the bonds were to be issued have been complied with, and the bonds have in all probability gone into the hands of innocent and bona fide purchasers. A strong case must then be made out in order to invalidate the bonds. We are not aware that bonds in the hands of innocent and bona fide purchasers have e,ver been declared invalid because the officers whose duty it was to issue them, and whose duty it was to decide upon all preliminary facts, committed an error in deciding upon some facts. But upon this question we do not now desire to express any opinion. The judgment of the court below must be affirmed.

Kingman, C. J., concurring.

---

Dissenting Opinion

Brewer, J.,

dissenting upon the first proposition decided, and concurring with the court upon the other two propositions.