Board of Commissioners of Hamilton County v. State ex rel. Cottingham
| Decision Date | 10 July 1888 |
| Docket Number | 12,624 |
| Citation | 17 N.E. 855,115 Ind. 64 |
| Parties | The Board of Commissioners of Hamilton County et al. v. The State, ex rel. Cottingham et al |
| Court | Indiana Supreme Court |
Original Opinion of January 30, 1886, Reported at: 115 Ind 64.
Counsel for appellees contend, with vigor and ability, that in this State, as elsewhere, there is no difference between an appropriation by a municipality by way of a donation and by way of taking stock in the railway company to which aid is voted.
That our statutes clearly recognize and create such a distinction is, in our judgment, so plain as to leave no reasonable ground for controversy.
The first section of the act of 1869 (Acts 1869, Spec. Sess., p 92, et seq.), as stated in the principal opinion, provided that when a petition was presented to the county board, asking that a township should make an appropriation by taking stock in, or donating money to, a railway company, etc., it should be the duty of the board, etc.
The 14th section of the act provided that, after any part of the assessment should be collected, the board of commissioners might take stock in the railway company from time to time, in the name of the proper township, and pay therefor when the same was taken, etc. The title of the act was "An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies."
Section 1 of the act of 1872, which seems to be in force yet (R. S. 1881, section 4065), provides that in all cases where a township tax has been levied and collected under the act of 1869, which authorizes townships, by taking stock in, or making donations to, railway companies, to aid in their construction, and the right to the tax has been forfeited, the money shall revert, etc.
Another act of 1872 (R. S. 1881, section 4070) had relation solely to stock in railroad companies, issued for aid voted by counties and townships.
Section 6 of the act (section 4075, R. S. 1881) clothes the township trustee with authority to vote the stock held by the township, in all meetings of the stockholders of the railway companies by which the stock may be issued.
And still another act of 1872 (Acts 1872, p. 49, Spec. Sess.; R. S. 1881, section 4077, et seq.) has relation alone to stock in railroad companies, issued for aid voted by municipalities.
The title of the act of 1873 was "An act supplemental to 'An act to authorize aid * * by townships taking stock in, and making donations to, railroad companies,'" etc. Acts 1873, p. 184.
The 1st section of the act provides (R. S. 1881, section 4068) that no tax shall be placed upon the duplicate of any county for the purpose of taking stock or making donations to railroad companies, etc., until the railroad shall be permanently located in the township, etc.
The 2d section of the act provided that, where stock was taken or donations made by any township, the collection of the tax should be suspended until the railway company had expended in the township in the construction of its road an amount equal to the amount of money to be donated or stock taken.
The same distinction between taking stock in, and making donations to, railway companies by municipalities is made in the amendatory act of 1875. Acts 1875, p. 121; R. S. 1881, section 4069. And so in the act of 1877. Acts 1877, p. 111, Reg. Sess.
The act of 1879 also provided that townships might vote aid to railway companies by taking stock in, and donating money to, such companies, etc. Acts 1879, p. 46.
Section 3 of the act provides that no township, which shall become the owner or holder of any stock in any railroad company, shall become liable for any debt or claim for work, labor or material incurred in the building of the road, etc. R. S. 1881, section 4064.
We have thus extended our references to the several statutes, not for the purpose of placing a construction upon them generally, nor of determining which, or what portion of each, is now in force, but for the purpose of showing by quoting some of the language of each, in substance, that they all not only very clearly recognize, but as clearly establish, a difference between aid to railway companies by municipalities by way of taking stock, and by way of donations. To say that they do not recognize and establish such a distinction, would be to convict the Legislature of the most useless and meaningless tautology.
Our cases have always recognized and enforced the distinction thus established by the statutes. For example, in the case of Faris v. Reynolds, 70 Ind. 359, cited in the principal opinion, the petition by the taxpayers to the county board was, that a tax might be levied upon the property of the township to be collected and invested in the stock of the railway company. It was held that, under the statutes, the taxpayers of the township might determine by their petition, and by their votes, whether the aid voted should be by way of taking stock in the railway company, or by way of donation. Amongst other things, it was said: "The people of a township, who vote this tax upon themselves, should have the right, and, we think, have the right under the law, to determine by their vote the manner in which the money shall be used, whether by donation of the money or by taking stock in the company."
In the case of Bittinger v. Bell, 65 Ind. 445 (458), cited in the principal opinion, the difference between aid to a railway company by way of a donation, and by way of taking stock therein, is fully recognized and asserted. And so, in the case of Indiana, etc., R. W. Co. v. City of Attica, 56 Ind. 476, which arose under a statute similar to those involved here, so far as concerns the point under discussion, it was held that there is a clear and material difference between aid to railway companies by municipalities by way of a donation, and by way of taking stock in such companies.
In the case of Board, etc., v. Indianapolis, etc., R. W. Co., 89 Ind. 101, it was held that the difference between an appropriation to a railway company, under the statutes above referred to, by way of a donation and by way of taking stock, is so marked, that section 18 of the act of 1869, providing for a forfeiture of the right to an appropriation voted, applied only to donations, and not to cases where the appropriation was by way of taking stock in the company.
We held in the principal opinion that the people to be taxed have a right to determine in advance, by their petition to the county board, and by their votes, that the appropriation shall be by way of taking stock in the railway company, and that, when they have thus determined, the amount can not be recovered as a donation by the railway company, nor by its successor, by whatever means or method there may be a successor. To that conclusion we adhere with much confidence in its correctness.
We yield our assent to the proposition, that where an appropriation has been lawfully made and completed, and a subscription for stock has been made in the manner provided by the statutes, such appropriation and subscription become a binding obligation upon the township. But it will not do to say that the township can be bound by an obligation which it has in no legal way assumed. In other words, the township can not be compelled to make a donation of the amount voted, where, as here, it has been voted upon the condition that the township shall receive therefor an equal amount of stock in the railway company. The township will be held to the terms of the appropriation, as expressed by the petition to the county board, by the vote of the people and by the final order of the board, and so, also, will the railway company.
The railway company must accept the appropriation as tendered by such petition, vote and order, or not at all. If the people have thus declared that the appropriation shall be by way of taking stock in the railway company, they have a right to the stock in return for the appropriation, and the railway company can no more coerce the payment of the money without the stock than can the township demand the stock without the payment of the money.
To hold otherwise would be to abolish all distinction between an appropriation by way of donation and by way of taking stock, which is so clearly established and recognized by our statutes and the cases, and to hold that, while the township may prescribe conditions, it is powerless to have them respected by the railway company. In short, it would be to hold, as before stated, that the township may be held by an obligation which it has in no way assumed.
There is no reason why an appropriation by a township by way of taking stock in a railway company, when within the authority given by the statutes, and when the subscription is made, should not be considered a contract, just as a subscription for stock in such company by an individual is a contract. And, clearly, the township is entitled to all the protection that will be awarded to a private subscriber. The protection is not to be less because the people, in the aggregate, are concerned. Cook Law of Stock and Stockholders, section 99; Shipley v. City of Terre Haute, 74 Ind. 297; City of Buffalo v. Bettinger, 76 N.Y. 393; Gray v. State, ex rel., 72 Ind. 567 (580); People v. Dutcher, 56 Ill. 144.
Mr Cook, in his work above referred to, at section 100, states the following, which is sustained by reason and by the cases: ...
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Bd. of Comm'rs v. State ex rel. Cottingham
...115 Ind. 6417 N.E. 855Board of Commissioners et al.v.State ex rel.Cottingham et al.Supreme Court of Indiana.July 10, Appeal from circuit court, Hamilton county. Elmer Cottingham and the Midland Railway Company, as relators, filed their complaint against the board of commissioners of Hamilto......