Slack, &C. v. Maysville and Lexington R. C.

• Decision Date: 27 January 1852
• Citation: 52 Ky. 1
• Parties: Slack, &c. <I>vs.</I> Maysville and Lexington Railroad Company.
• Court: Kentucky Court of Appeals

Page 1

52 Ky. 1

Slack, &c. vs. Maysville and Lexington Railroad Company.

Court of Appeals of Kentucky.

January 27, 1852.

APPEAL FROM MASON CIRCUIT.

Judge MARSHALL delivered the opinion of the court, January 27, 1852 — Judge HISE dissenting.

The twenty-eighth section of the act of March, 1850, incorporating the Maysville and Lexington Railroad Company, enacts, "That the cities of Maysville and Lexington, and the counties of Mason, Nicholas, Bourbon, and Fayette, and any other city, county, or corporation, be and they are hereby permitted to hold stock in the corporation created by this act, upon the same terms, on the same conditions, and subject to the same restrictions, with other stockholders." It then fixes the maximum of stock which may be subscribed under this authority, as follows, viz: by Maysville, $150,000; by Lexington, $150,000; by Maysville and Mason county jointly, $150,000; by Nicholas county, $100,000; by Bourbon county, $150,000; by Fayette county, $200,000; and by any other city, county, or corporation, any sum not exceeding the largest of these amounts; and the president and directors of the company are authorized, after giving six weeks notice by advertisement, in the manner prescribed, "upon a day named in said advertisement, to take the sense of the qualified voters of said cities or counties, or of any one or more of them, as to the policy of said cities and counties, or any one of them, becoming subscribers to the stock in said railroad company, to any amount which may have been proposed in said printed notice, not exceeding the respective sums above specified." It is then made the duty of the mayor and council of the cities of Maysville and Lexington, and the duty of the county court in each of the counties above named, to open columns in the various precincts, &c., and take all necessary measures to ascertain the sense of the qualified voters of their respective cities and counties at the polls thereof, as aforesaid; "and, provided a majority of all the qualified voters of any of said cities or counties, who shall have cast their votes at said election, shall be in favor of said several subscriptions of stock as proposed to such city or county, it shall be the duty of the mayor and council of every such city to pass an ordinance directing the mayor to subscribe for any amount of stock provided for in the ordinance, not exceeding the amount in the said printed notice; and it shall be the duty of the county court of every such county, in like manner, to empower and direct their clerk to subscribe for the amount of stock authorized by the voters of the county, not exceeding the sum specified in said printed notice; and it shall be lawful for said cities and counties, so authorizing subscriptions, &c., to raise the amount of their separate subscriptions, as the same shall be called by the president and directors of said road, by a tax on the real and personal estate of the said several cities and counties subscribing, or by borrowing the amount thereof, payable in the way, and on the terms, the said several mayors and councils and the said several county courts may deem most advisable; and the interest on all such sums borrowed may be provided for in such manner as to them seems best; and, provided, that all sums paid by any citizen on account of such subscription, or of the interest thereon, shall entitle him to a certificate thereof, and when such certificates amount to fifty dollars, shall entitle him to one share in the stock subscribed by said city or county for every fifty dollars so held by him — the shares in the capital stock being fifty dollars each."

Towards the close of the year 1850, the president and directors of the railroad company gave notice, by advertisement in the newspapers as required, for taking the sense of the voters of Mason county, including the city of Maysville, on the fourth Monday in January following, as to the policy of a subscription of stock by that county to the amount of $150,000, under the foregoing provisions of the charter. The county court of Mason, at its December and January terms, made a provision for taking and returning the vote, and at its February term, 1851, being on the 10th day of February, the votes from the several precincts being returned, and it being ascertained that the whole number of votes cast was 2,113, of which 1,328 were given for and 785 against the subscription, making a majority of 543 in favor of it, the court made an order directing its clerk to subscribe, on behalf of the county, $150,000 in stock in said company, and to issue the bonds of the county for that sum, payable in thirty years, in bonds not exceeding $1,000 each, bearing six per cent. interest per annum, payable annually, and to be delivered to the president and directors as called for, not exceeding $50,000 per year; which course had been indicated by the order of December, 1850. On the 17th of February, 1851, the legislature, by amendment to the charter of the company, authorized the county court of any county, or the city council of any city, who shall subscribe stock in said company under the provisions of the original act, to execute bonds of the county or city to the president and directors for the amounts severally subscribed, payable at such times as the county courts and city councils may deem best; and authorized and required them, severally, to levy and collect upon the real and personal property of said counties and cities, assessed for state taxation, an amount in money sufficient, annually, to pay off the interest on said bonds. This act also provides for the mode of levying and accounting for the tax; also, for the negotiability and transfer of the bonds by indorsement of the president, countersigned by the secretary, and for the transfer of certificates given to tax-payers; and that the stock issued on such certificates shall not be deducted from the county or city stock. Other minor provisions need not be stated.

Prior to this enactment no bonds had been issued by the county court of Mason. And although a general order had passed for their being issued by the clerk, yet, as the mode of executing them had not been prescribed, we suppose he had no authority without the further order of the court. At the May term, 1851, however, an order was made, that the senior justice should sign bonds to the amount of $20,000, to be countersigned and sealed by the clerk, and delivered to the company in payment of so much of the stock subscribed. At the same term an order was made for the levy and collection of a tax of 3½ cents on the $100 worth of real and personal property in the county assessed for state taxation, for the purpose of paying interest on the bonds. And at the same time the court recommended that the bonds to be issued should be made payable in New York, and should bear interest payable semi-annually in the same city. This was the last session of the old county court.

In August, 1851, the presiding judge of the county court, acting under the present constitution, adopted the recommendation of the former court, revoked and canceled the bonds for $20,000 before referred to, and provided that bonds to the amount of $50,000, payable in the city of New York, with coupons for interest payable semi-annually in the same city, should be issued to the company by the presiding judge, to be countersigned and sealed by the clerk, the coupons to be signed by the clerk.

On the 29th day of September, 1851, the tax levied in May of that year being in the course of collection, Jacob Slack, and one hundred and fifty other citizens and tax-payers of Mason county, owning taxable property to the value of more than $900,000, and more than one-tenth of the entire taxable property of the county, and who had been opposed to the subscription, filed their petition complaining of the tax as oppressive, illegal, and unconstitutional, and praying for an injunction against the sheriff, the railroad company, and the county court of Mason, to prevent its collection from such of them as had not already paid it. The railroad company, by its president, answered the bill, maintaining the validity of the charter and of the proceedings under it, and the legality and constitutionality of the tax. And it having been agreed that the case should be finally disposed of upon the motion of the complainants for an injunction, the court, on the hearing, overruled that motion and dismissed the bill. From this decree the complainants have appealed to this court.

I. It is objected in the bill, and has been urged in argument, that the proceedings of the county court were not conformable to the prescriptions of the statutes which have been referred to, and were therefore unauthorized by them. But we perceive no material discrepancy, nor in fact any discrepancy at all, in the performance of the acts required to be done in order to authorize the subscription, which, if valid and obligatory, imposed necessarily a debt of serious magnitude upon the county. The subscription itself, and the duties of the court preparatory to its being made, were ministerial acts, prescribed particularly by the original statute, without leaving any discretion to the court. In providing for taking the vote, in ascertaining the result, and in making the subscription in obedience to it, the court followed the plain mandates of the statute. If that is authoritative, the subscription is valid and binding. And if the court, in any matter not affecting these preliminary steps, made orders in anticipation of the result, or in any manner exceeded their authority, such excess is simply void, and can have no effect upon the validity of the subscription, or upon the subsequent rights or powers of the court. The orders by which, before the subscription was voted for, the court laid down the form or mode in which the bonds should or ought to be executed, or disposed of, are of no consequence, unless in the effect they...