Harrington v. Town of Plainview And Others
Citation | 6 N.W. 777,27 Minn. 224 |
Parties | George W. Harrington v. Town of Plainview and others |
Decision Date | 06 October 1880 |
Court | Supreme Court of Minnesota (US) |
The plaintiff, a resident and tax-payer in the town of Plainview in Wabasha county, brought this action in the district court for that county to restrain the town officers from issuing the bonds of the town to the Plainview Railroad Company, to aid in the construction of its railway. The action was tried by Mitchell, J., and judgment was ordered and entered for the defendants, and the plaintiff appealed.
Judgment reversed, and cause remanded for judgment pursuant to this opinion.
Taylor & Sperry, for appellant.
Wilson & Gale, for respondents.
It is certainly competent for the legislature to authorize the issuance of bonds by towns in aid of railways, and taxation for their payment. Davidson v. Com'rs of Ramsey County, 18 Minn. 482. And where the legislature may authorize, it may direct or order; for the town being the mere agent of the state, and having no power whatever itself in the premises, except to perform the functions for which it is created, its assent or dissent cannot affect the validity of the act which it is delegated to do. Town of Duanesburgh v. Jenkins, 57 N.Y. 177; Town of Bennington v. Park, 50 Vt. 178; Guilder v. Town of Otsego, 20 Minn. 74; Guilder v. Town of Dayton, 22 Minn. 366. The last two cases relate to the power of the legislature to order the construction of ordinary highways and that the towns within which they are or which are to be benefited by them should pay therefor; and the principle is the same in the case of railways, for they are merely improved public highways. Davidson v. Com'rs of Ramsey County, 18 Minn. 482; Thompson v. Lee County, 3 Wall. 327; Railroad Company v. Otoe County, 16 Wall. 667; Olcott v. Supervisors, 16 Wall 678.
But even if the approval of the town was a condition on which alone the legislature has the right to authorize or direct the issuance of the bonds, that approval has been given in this case. How that consent shall be given -- whether by vote of the electors, or by petition of a majority of the resident tax-payers -- is clearly in the discretion of the legislature. Town of Duanesburgh v. Jenkins, 57 N.Y. 177; Town of Bennington v. Park, 50 Vt. 178; First Nat. Bank v. Town of Concord, 50 Vt. 257; People v. Batchelder, 53 N.Y. 128; Horton v. Thompson, 71 N.Y. 513; People v. Mitchell, 35 N.Y. 551; Williams v. Town of Duanesburgh, 66 N.Y. 129.
In this case the respondent moved to dismiss the appeal on the ground that, since the entry of the judgment appealed from, the bonds to enjoin the issuance of which the action was brought have been issued, and that, therefore, the question whether the defendants ought to issue them is a mere abstract question. This would be so, were it not that the judgment is also for costs against the plaintiff. As held by this court in James v. Cornish, 25 Minn. 305, the appellant has the right to have the judgment examined to determine whether it was correct, so as to entitle defendants to costs. The motion to dismiss is therefore denied.
The point is also made that it is not a proper case for injunction, because, if the statute is unconstitutional and gives no authority to issue the bonds, their invalidity will appear on their face, and there will always be a legal defence to them in whosesoever hands they may come. If, by recital of the act under which they issue, their invalidity must appear on their face, so that there could be no bona-fide holder of them, an injunction will not lie to restrain their issuance. Township of East Oakland v. Skinner, 94 U.S. 255, 24 L.Ed. 125. But if the act be valid, a mere recital in the bond that it was issued under and pursuant to such act, without any further recital, is sufficient, so that a bona-fide holder will be protected, although there may have been a defect in the proceedings under the act to authorize the officers to issue the bonds. Humboldt Township v. Long, 92 U.S. 642, 23 L.Ed. 752. If the act in question here were wholly void, and no valid bonds could be issued under it, the case would fall within the former of these decisions. But the act provides two modes for authorizing the issue of bonds, one of which is conceded to be valid, and the other only is claimed to be invalid. We do not think the bond need recite under which of these provisions of the act it is issued. It is enough to refer to the act generally, and a purchaser would have the right to presume that it was issued under the valid provisions of the act. There might, therefore, be bona-fide purchasers of the bonds. It is a proper case for injunction.
Laws 1877, c. 106, provides:
* * *"(Gen. St. 1878, c. 34, § 92.)
* * *"(Id. § 93.)
etc. (Id. § 94.)
Section 4 provides that a railroad company, seeking such aid, shall make and deliver to the county auditor, town clerk, or city or village clerk, its proposition in writing for the issuance to it of the municipal bonds. (Id. § 95.)
Section 5 provides a mode for arriving at the "mutual agreement" mentioned in the preceding sections, which is by means of an election by the legal voters of the county, town, city or village, as the case may be, notice of which is to be given, in a mode prescribed, by the county auditor, or town, city or village clerk, upon receiving the proposition, in which such voters vote for or against such proposition; and only in case a majority vote for it, is it to be deemed accepted.
Section 7 provides another mode of arriving at such "mutual agreement," as follows: (Gen. St. 1878, c. 34, § 98.)
The Plainview Railroad Company proceeded, for the purpose of procuring the bonds of the town of Plainview, under section 7. Having filed its proposition with the town clerk, it caused notice to be given that a petition to the town...
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