People ex rel. Denver & Rio Grande Railway Co. v. Board of County Commissioners, 2 Colo. 360

People ex rel. Denver & Rio Grande Railway Co. v. Board of County Commissioners

2 Colo. 360 | Colo. | 1874

Beleobd, J.

From a careful examination of the act, authorizing subscriptions to be made to aid in the construction of railroads, it is apparent that the body clothed with the power of contracting is the board of commissioners, and it is equally clear that the exercise of this power is made dependent upon the approval of the people, expressed at an election called for that purpose.

In this case, it is evident from the form of the proposition submitted to the voters, as from other things in the record, that no stock had been subscribed prior to the election, but that the purpose of the election was to ascertain whether the popular will would authorize and sanction such a subscription. The people can make no contract binding on the county. They can approve or disapprove a contract *364made by the board ; beyond this they cannot go. It is clear, also, that to maintain this action, the complainants must have a valid, legal right against the county, springing out of a contract made in a way known to and approved by the law.

To constitute a contract there must not only be parties competent to agree, but also mutuality of consideration and obligation. Both must be bound or neither can be held. The election proceeds upon the petition of the citizens. The railroad company is not a party in this preliminary step. The election is not and cannot be ordered at their request. They may submit their proposals to the board, and through it to the people; but the statute neither empowers the company to contract with the people, nor does it authorize the people, in their primary capacity, to contract with the corporation. This power is vested solely in their representatives, the commissioners, and to make it eifectual they must pursue th*e strict letter of the law granting it.

The most that can be said as to the action of the board in this case is, that at an election they submitted certain proposals— by whom made does not clearly appear — to the consideration of the voters, and that they approved them. This is not enough, for, as we have seen, the people in their primary capacity are not empowered to contract. Nor can the commissioners make a contract that will bind the county until the people, through the ballot-box, tell them so to do. The action of both in their appropriate ways must be had before the negotiations can be consummated. “Until the county has subscribed,” says the supreme court of Illinois, “ there is no privity between the road and the county.” It is the contract of subscription which compels the subscriber for stock to pay the money, and the company to issue to him shares of their stock. When the vote was taken and resulted in favor of subscription, it only amounted to a delegation of power to the commissioners to make the contract of subscription.

The company was no party to this vote, and has no more right to insist upon the execution of the power thus delega*365ted, than it would have in case an individual were to authorize an agent to subscribe for stock in the road, and who should refuse to exercise the power of his principal. P. & O. R. R. Co. v. Tazewell County, 22 Ill. 156.

If we were to concede the power of the people to make a contract by a vote to take stock, still their vote cbuld not amount to a contract, till the company, through its proper officers, also agreed to issue the stock. The record fails to disclose any such contract on behalf of the corporation.

The recitals in this writ are simply to the effect that the Denver and Rio Grande Railroad Company had constructed its railway from Denver to Colorado Springs, and contemplated extending it thence to the coal fields of Fremont county by the most advantageous route, and that the citizens of Pueblo county, desiring such extension via the town of Pueblo, made their petition, signed according to law, praying the board of county commissioners of Pueblo county to order an election for voting to subscribe $50,000 in this behalf, and to pay the same in the bonds of the county.

That, pursuant to this petition, a special election was ordered, the notice reciting the proposition upon which said subscription was to be made. Thus far it would appear that the acts performed were done by the commissioners on the one hand, and the people on the other; between the principal and the agents. There is nothing in the record to show that the propositions voted on were submitted by the company, or that they had any knowledge of the same. The connection of the corporation with the transactions only becomes apparent when, through their attorneys, they appear before the board and demand the bonds of the county. Clearly, then, according to the recitals of the writ, there is nothing that would indicate the existence of an obligation on the part of the company.

Had the commissioners, on behalf of the county, brought suit to compel the issue and delivery of stock, the company could well have replied under the facts set forth in this record: “We never contracted to deliver any. The election *366was a movement between the people and the commissioners ; we made no propositions. The record fails to disclose any agreement, and hence there is nothing on which to predicate a claim against us.” And taking the facts set forth, no sufficient rejoinder could have been made by the board. Tt is insisted, however, that when the proposals were approved by the people, it then became the duty of the board to subscribe. As stated above, it does not appear that these propositions were submitted by the company. If they were not, then the transaction was purely one between the people and their agents, the company being in no sense a party or privy thereto. Under a statute whose language is identical with that of our own, it was held that the vote of the people could create no obligation on the part of the county or railroad company. Mr. Justice Nelson, in answering the argument “that the duty of the board to issue stock after the election was imperative,” said “that a subscription was necessary to create a contract binding upon the county, on one side, to take the stock and pay in the bonds; and upon the other, to transfer the stock and receive the bonds for the same. Until the subscription is made, the contract is unexecuted and obligatory upon neither.” Aspinwall et al. v. Davis County, 22 How. 367; Commissioners of Crawford Co. v. The L. N. A., etc., R. R. Co., 39 Ind. 192; Union Pacific R., etc., v. Davis Co., 6 Kan. 256. In the absence of a contract, we see no obligation resting on the county which the complainants can enforce. It is very questionable whether the proceedings were valid in any sense. The order for the election was made at a special meeting, and there is nothing in the record to show that that meeting was appointed at a regular session of the board.

We are of the opinion that the court committed no error in sustaining the demurrer and refusing the writ.

Judgment is

Affirmed.