113 Tenn. 697 | Tenn. | 1903
delivered the opinion of the Court.
The present bill was filed by taxpayers of the city of Clarksville, in Montgomery county of this State, impeaching a subscription of $100,000 made by that city to the capital stock of the Nashville & Clarksville Railroad Company, which afterwards, by an act of the legislature, had its corporate name changed to the Tennessee
It appears from tbe recitals of tbe original bill and tbe amendments thereto that 'the Nashville & Clarksville Railroad Company, a corporation organized and existing under tbe laws of Tennessee, on tbe 21st day of June, 1901, addressed a written communication to tbe mayor of tbe city of Clarksville, in wbicb it was stated that this company proposed “to construct a standard-gauge steam railroad from a point within tbe corporate limits, connecting with tbe tracks of tbe Tennessee Central Railroad or those of tbe Nashville Terminal Company, and crossing tbe Cumberland river ... in a northwest direction, to a point in tbe county of Montgomery, Tennessee, at a line between tbe States of Tennessee and Kentucky,” and asking a subscription to its capital stock by tbe city of Clarksville in tbe sum of $100,000, upon certain conditions, of wbicb those material to this litigation may be summarized as follows:
Second. That' no part of the subscription should become due and payable until the railroad was constructed and put in operation within the period of time stipulated as above, and substantially on the line as shown on the plan or map attached to the communication, and when this was done the subscription should become due and payable.
Third. “ Payment for the stock subscription of the city to be made at the option of the city “in cash or in its twenty year coupon bonds, bearing interest at not less than four per cent, per annum,«payable semiannually.’’
A meeting of the board of mayor and aldermen of the city of Clarksville was held on the 5th day of July, 1901, at which this communication was- submitted, and thereupon a resolution was adopted declaring it to- be sense of the board “that an election should be held by the qualified voters of the city of Clarksville to determine whether or not the city, in its corporate capacity, shall make the subscription asked for by the Nashville & Clarksville Railroad, in the amount and upon the terms and conditions set forth in the application,” and fixing the 8th day of August, 1901, as the date of the election, which should “be held according to the laws of the State
On the 6th of July, 1901, the commissioners of registration of Montgomery county gave the statutory notice that on the 8th day of August, 1901, an election would be held at two voting places named in the notice between the hours of 9 a. m. and 4 p. m., at which the qualified voters of the city of Clarksville should vote in order to determine whether or not the city of Clarksville should make a subscription to the capital stock of the Nashville & Clarksville Railroad Company, upon the “terms and conditions of the application or proposition submitted by the railroad company to the municipal authorities, Avhich application ®r proposition was by the commissioners appended to the election notice.
The'election thus ordered was held on the day appointed, and in due time a return of the same was made by the commissioners of registration to the board of mayor and aldermen, of that city, in which they reported at this election held “in accordance with the law as found in chapter 3, p. 57, of the Acts of the Legislature of 1887, and by resolution of the board, there was cast a total of 904 votes of the qualified voters .of the city of Clarksville, of which total 681 votes were for, and 223 were against, the subscription.” They further reported that, in addition to this total 88 votes were cast which “were rejected and thrown out by the judges of the election as illegal.” .
This formal act of subscription was clone by the mayor on the 15th day of April, 1902.
The original hill and the amendments thereto charge various irregularities as of an invalidating character in the holding of this election. The principal grounds of assault are:
(1) That the termini of the railroad to be constructed were not sufficiently definite.
(2) That the line of the contemplated railroad was not located in the application with sufficient certainty.
(3) That the city of Clarksville lacks power to malee the subscription.
(4) That the election was- ordered by resolution, when it should have been by ordinance.
(5) That, in giving the public notice calling the elec
(6) That the election was void because held at only two voting precincts, when'there were ten wards in the city.
(7) That there were 88 ballots cast which the officers of the election rejected without giving any reason therefor,
(8). That the ballots were not in proper form.
(9) That certain persons (naming them, 15 in number) voted in the election, “For Subscription,” about one-half of whom were disqualified by reason of their conviction of infamous crimes, and the remainder had been bribed by the railroad company to vote for subscription.
In addition, it is charged that the railroad had not been completed within the period of time fixed in the application or proposition, and that chapter 276, p. 796, of the Acts of 1903, ratifying and approving the subscription, was unconstitutional and void.
An examination of the record satisfies us that the first three of these grounds are without merit, and they are thus disposed of without discussion. This is equally true so far as the fifth ground is concerned, as it is apparent that the use of the word “election” instead of “registration” by the commissioners of registration in their public notice advertising the election was a clerical error, which was not misleading. As to the sixth ground, we do not understand the original bill to affirm that
But speaking to the ninth ground, we are not prepared to hold that an election carried by a corrupt use of money, or by the votes of person rendered infamous by judgments of courts of competent jurisdiction, would be any more validated by a subsequent act of the legisla
This being so, it becomes necessary to examine the pleadings in the cause, to ascertain whether complainants, in the face of the demurrer of defendants, have made such averments as will authorize the court to- investigate the election in question, so as to determine whether it was carried by the votes of electors corrupted by the use of money, or of persons disqualified by judgments of infamy pronounced against them by courts having jurisdiction. Before doing this, however, it is proper to bear in mind certain rules which control the courts in the investigation of fraud.
It is well settled that a mere general aveiment of fraud, without setting out the facts upon which the charge is predicated, is not sufficient. Wher&ver fraud
This is especially true where, as in the present case, extraordinary relief by injunction is required. “In such a case,” as is said by Chancellor Gibson in his work on Suits in Equity, section 785, “the bill is not only a pleading setting forth a cause of action, but it is also an affidavit showing reasons why the complainant is entitled to relief. ... If any averments are based on information at all, the source of the information should be stated, and the complainant aver his belief in its credibility. The bill should show definitely on its face what allegations are made on complainant’s own knowledge, and what on information and belief. The bill should be sworn to positively, and the affidavit should so show.”
The rule requiring specific allegations where fraud is averred as a ground for relief was rigidly applied in Crockett v. McLanahan, 109 Tenn., 517, 72 S. W., 950, 61 L. R. A., 914, where the legality of an election arose, because, as .was argued, a proposition such as we have in this case had not been carried by a constitutional majority of the qualified voters of Nashville. It was
Turning now to the pleadings, we find that the original bill charges that 88 ballots were cast which were rejected by the judges of the election; but it is nowhere alleged that these were the ballots of qualified voters, or that the judges violated any legal duty in rejecting them.
We think it evident no relief could be given on such an averment, for, in addition to its vagueness, it must be assumed, in the lack of specific charge, that in this there was no abuse of power on the part of the judges holding the election; that they discharged their duty in rejecting these ballots — -in other words, that they were thrown out because illegally cast, or for some other reason going to their integrity as ballots.
In the original bill, in a very general way, it was charged that the railroad company used a large amount of money with purchasable voters, and in that corrupt way secured a “number of votes” for the proposition, and that, had it not been for the use of money in corrupting the electors, the number of votes cast “for subscription” would have been greatly below the number returned by the judges of the election.
We do not understand the counsel of complainants to insist “that the expensive machinery of a court of equity is to be put in operation for the purpose of reviewing this election” on such loose.and untráversable-
In certain amendments made to this bill, complainants undertook to make more, specific these averments as to fraud. In these they allege that they are informed, and therefore charge, that “representatives and agents of the railroad company gave money to the following parties in consideration of their votes, to wit [naming seven persons]; that they paid the poll taxes of some of these parties, and paid them from two to seven dollars each for their votes; and that these parties voted for the proposition.” They further allege that they are “informed, and therefore charge, that the following parties, to wit (naming nine persons), had prior to said election been convicted of infamous crimes and rendered infamous, and yet they voted in said election and for the proposition.”
Passing the failure of complainants to aver that they believe that which they thus charge on information, and dealing first with the averment in regard to the voters who were disqualified because of their conviction of infamous crimes, it will be observed it is not alleged that these convictions were had in a court or courts of competent jurisdiction, nor are the courts where these parties were tried, if tried at all, or the terms of the court at which such trials were had, anywhere alleged. There is nothing in the bill or the amendments thereto to put the defendants on notice as to these essential particulars, and, lacking them, we think the defendants were
It will be observed, further, while it is Charged that those persons named as having been bribed cast their ballots “for the proposition” (meaning, no doubt “for the subscription”), it is not averred the judges counted them in favor of subscriptions. The votes of persons rendered infamous by a court of competent jurisdiction, and discharged from the rights of citizenship, and of those persons who had been bribed, were illegal, and should have been rejected altogether. In the absence of a specific allegation or the necessary implication from an averment, it would seem it must be assumed on demurrer that all such votes were rejected, and constitute a part of the 88 thrown out by the officers of election. Again, it is not averred that these votes were counted in making up the total of the 681 votes cast, as the judges reported, by qualified voters in favor of subscription. In order to impeach the return of the judges of the election, upon whom rested the duty of accepting the ballots of qualified voters, and rejecting all others, and of making an honest return of the result of the election, it must be shown not only that there were vote's cast by disqualified voters in favor of subscription, but that these votes helped to make up the three-fourths majority reported to and by the commissioners of registration. For, as is said in the argument of the counsel of defend
It is further insisted by the complainants that the railroad was not completed within the time stipulated in the proposition, and for this reason the city of Clarks-ville was not bound to issue its bonds in payment of its subscription. The bill shows, as has already been stated, that the election was held on the 8th day of August, 1901, and the city council passed an ordinance making effective the vote cast at this election on the 15th day of August, and at the same time directing the mayor to subscribé for the stock in the name of and for the benefit of the city. But there is no averment that the city or its agent came in legal contact with the railroad company at that or any other date, though it is assumed by the counsel for both parties in argument, and stated as a fact in the act of 1903, hereinbefore referred to, that the subscription was made by the mayor on the 15th of April, 1902. The insistence, however, of complainants, is that by the resolution of the board approving the election return, and authorizing a subscription by the mayor to the capital stock to be made, the act of subscription was consummated on the day this resolu-act of 1852) was not suspended by the acts of 1867, and
It would seem that a mere acceptance by the council of the city of Clarksville of the returns of the commissioners of registration, and the passage of an ordinance of resolution directing the mayor, “in the name of and for and on behalf of the municipality,” to formally subscribe, was not of itself a subscription which without more would bind the corporation. Nugent v. Supervisors, 19 Wall., 241, 22 L. Ed., 83; Moultrie v. Bank, 92 U. S., 631, 23 L. Ed., 631; Bates v. Winters, 97 U. S., 83, 24 L. Ed., 933. Why might not the council the next day have rescinded this action? If it had done so, could the railroad company have complained? Why might not, as in the case of any other proposition for a contract, the city have withdrawn this offer of acceptance before its communication to the railroad? It was not the case of the railroad offering to sell to the city of Clarksville $100,000 of its capital stock, but simply a proposition made to the authorities of the city for a subscription to that amount upon certain conditions embraced in the proposition, and a request that it be
Upon the day following, to wit,’May 5, 1870, the present State constitution went into effect, by section 29, art. 2, of which it is provided “the credit of no county, city or town shall be given or loaned to, or in aid of any person, county, association or corporation, except upon an election to be first held by the qualified voters .... and the assent of three-fourths of the votes cast at said election.”
The validity of the bonds issued by the county of Haywood in aid of this railroad depended upon the question whether the subscription was made so as to be binding and effective before the constitution became operative. This court held, by a majority opinion, that, on the facts set out hereinbefore, the subscription was converted into a contract on the 4th day of May, 1870. The court said: “The contracting parties evidently under
We have no doubt of the soundness of the conclusion announced in that case. There the minds of the two contracting parties came together on the 4th day of May. The county’s proposition to subscribe was accepted by the corporation on that day, through its duly constituted representative, and the manual subscription for the stock was unnecessary, and if .made thereafter would simply have been evidentiary. In ‘ the present case, however, we have no agent or officer of the railroad company, duly authorized to speak for it, presenting himself in the council chamber, and by speech and manner accepting the city’s offer to subscribe for the stock-, and thus converting the offer into a subscription binding in law.
It is next said in argument, though not alleged by complainants as a ground for. relief, that the act of 1887 under which this election was held contemplated a submission to the vote of the qualified electors of Clarks-ville, as an indivisible proposition, of the question of subscription and that of the mode and terms of payment of that subscription. If this was essential, as was argued, we think it was practically done in tliis case, as the notice of commissioners of registration of this election had appénded, as a part of it, a copy of the proposition, for the information of the voters, and we think every vote for subscription was an approval of the proposi
The next question is upon chapter 276, p. 796, of the Acts of 1903. Is it constitutional? And if so, what is its effect?
This act is entitled “An act to approve a subscription made by the city of Clarksville for one hundred thousand dollars of the capital stock of the Nashville & Clarksville Railroad Company, and to authorize said city to issue its bonds in payment of same, or to provide cash funds for payment.”
The preamble to this act contains recitals of the submission by the board of mayor and aldermen of the proposition to subscribe for $100,000 of the capital stock of the railroad company to the qualified voters of the city of Clarksville, and of the holding of the election, and of the resolution of the board affirming the election to
The second section is as follows: “Be it further enacted, that in the event the said city of Clarksville shall elect to pay said subscription in cash, it may in like man
In the first place, the complainants, through their able counsel, insist that this act is void because it is a partial law, suspending, for the benefit of the city of Clarksville, the general railroad subscription act of 1887, modified, as is contended, by the general election law known as the “Dortch Law” of 1890.
Since the case of State v. Wilson, 12 Lea, 246, it has been the settled law of this State that special legislation
Coming now to tbe question raised by tbe complainants, that tbe ratifying or curative act of 1903 is a partial law suspending general laws for tbe benefit of tbe city of Clarksville, we think tbe case of Lauderdale County v. Fargasson, 7 Lea, 153, a controlling authority against tbis contention. That case arose under tbe constitution of 1834, and involved tbe legality of bonds issued in accordance with two acts of tbe legislature, tbe first of wbicb was passed February 25, and the last Nov. 5, 1867.
By these acts, any county along tbe line wbicb tbe Mississippi Railroad was proposing to build was authorized to subscribe for its capital stock to any amount not exceeding two-tbirds of tbe estimated cost of grading tbe roadbed through tbq county, and to- issue short-time bonds to tbe railroad company in anticipation of tbe revenues to be raised from taxes wbicb tbe county
The line of. this projected road was laid out to pass through Lauderdale county and a majority of the justices of the county, in court assembled under the authority of the acts of 1887, made a subscription for an amount of the capital stock of that road, and issued short-time bonds to the railroad company in payment of that stock; and the case in Question involved the validity of this action.
It was insisted by the complainant, Fargason, that the act of 1852 was “the general law of the land at the time of the passage of the act under which these bonds are [were] issued, and that these acts were void, and that either they suspended a general law for the benefit of the particular counties, or else conferred a benefit on these counties inconsistent with the general law of the land.” The court said, however, that this insistence was in no sense sound, that the general law (that is, the ast of 1852) was not suspended by the acts of 1867, and
It is next contended that this ratifying or curative act is .violative of section 17 of article 2 of our constitution, which provides as follows: “No bill'shall become a law which embraces more than one subject, that subject to be expressed in the title.”
Assuming for the moment that the legislature may,
This act was drafted in view of the contract already made by the city with the railroad company. By the terms of the contract, payment for the stock which the city agreed to take might be made either in cash or twenty-year bonds of the city, bearing interest at not less than 4 per cent., payable semiannually, as the city might elect. This contract was strictly within the limitations of section 12 of chapter 3, p. 60, of the Acts of 1887. We think it clear that the act and proposition both contemplated that after the subscription was made the option was to be open for the city of Clarksville to determine the mode of payment for this either in its 20-years bonds or in cash; the limitation on this option being that if paid in bonds they should bear not less than 4 per cent, interest. Thus the matter stood at the passage of the act of 1903, and it would seem that any resolution which came to the aid of the city in discharging its contract in either mode would be in harmony with the contract, and would derogate neither from the rights of the railroad nor the city.
In Ryan v. Terminal Company, 102 Tenn., 111, 50 S. W., 744, 45 L. R. A., 303, this clause of the constitution Ayas invoked to invalidate an act entitled “An act to amend an act entitled ‘An act to provide for the organization of railroad terminal corporations and define the powers, duties and liabilities thereof/ ” because, as was insisted, this title covered much of incongruous legislation. Among the provisions found in the act which Avere
It was there argued with much force and plausibility that these provisions were foreign to the title, and introduced into the body of the act new and independent subjects. After a review of the authorities, the court rejected this contention, and, adopting the language of Judge Cooley, said, “The generality of a title is no- objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as bearing necessary or proper connection.”
Again returning to the line of suggestion already made, had this been an act authorizing the city of Clarksville to subscribe for $100,000 capital stock of this railroad in the event three-fourths of the qualified voters of the city, at an election held, approved the subscription, and to issue, its bonds to pay for the same, and both these matters were embraced in the title and the body of the act, could it be maintained that these were distinct and independent subjects, making the whole act void? That the authority to subscribe was one thing, and providing a mode of payment was a dif
But the argument of the counsel of complainant in relying upon this act as one which, in part, serves to avoid the curative act of 1903, by clear implication, concedes the constitutionality of that act; and we think that, if in it there was no violation of the constitutional provision in question, there is none in the act now being examined. We do not think, however, either of these
It is further insisted that chapter 276 is void because it confers a new power upon tbe city, in that it authorizes tbe issuance of bonds for a longer term than twenty years, by mere resolution of tbe municipal board, when one of tbe terms of tbe proposition voted on was that payment should be made in 20-year bonds, bearing not ■■more than 4 per cent, interest. It is true that section 2 of tbe act does not fix tbe date of tbe maturity of tbe bonds which are to be issued under its authority, but chapter 3, page 57, of tbe Acts of 1887, does; and these two acts, being in pari materia on this point, are to be construed together, so as to impose a 20-years’ limitation in tbe running of these bonds, and thus leave tbe proposition and section 2 of chapter 276, page 796, corresponding in every particular.
Nor does section 2 of chapter 276 make a departure so far as interest is concerned. The proposition submitted was to take bonds in payment of tbe subscription, bearing interest at not less than 4 per cent. Not more than 6 per cent, could be paid on these bonds under tbe law. Tbe proposition therefore left it open for adjustment, as between tbe city and the railroad, as to tbe rate of interest — anywhere between 4 per cent, and’6 per cent. So, when tbe legislature authorized tbe issuance of these bonds, and limited interest upon them to 6 per cent., we do not discover in what respect it made
Tbis leaves open, as tbe only question yet to be determined, tbe right of tbe legislature to pass chapter 276 of tbe Acts of 1903, and its legal effect. Tbis question has already been answered in our reported cases. Shields v. Land Company, 94 Tenn., 123, 28 S. W., 668, 26 L. R. A., 509, 45 Am. St. Rep., 700; Muse v. Lexington, 110 Tenn., 655, 76 S. W., 481. Tbe import of these cases may be condensed in a paragraph from Sykes v. Mayor, 55 Miss., 137, embodied and approved in tbe opinion of tbe court in Grenada Supervisors v. Brown, 112 U. S., 261, 5 Sup. Ct., 125, 28 L. Ed., 704: “The idea implied in tbe ratification of a municipal act performed without previous legislative authority is that tbe ratifying communicates authority which relates back to and retrospectively vivifies and legalizes tbe act, as if the poAver bad been previously given.”
It results that tbe demurrer to tbe bill on tbe point discussed herein was well taken, and tbe decree of tbe court of chancery appeals must be reversed and tbe bill of complainants dismissed.