Brown v. Town of Point Pleasant
| Decision Date | 26 March 1892 |
| Citation | 15 S.E. 209,36 W.Va. 290 |
| Parties | BROWN et al. v. TOWN OF POINT PLEASANT. |
| Court | West Virginia Supreme Court |
Submitted January 14, 1892.
Syllabus by the Court.
1. The council of the town of Point Pleasant, by an ordinance passed on the 12th day of June, 1882, ordered that a vote of the qualified voters be taken on the question of subscribing $5,000 to the capital stock of the Point Pleasant & Ohio River Railroad, a corporation existing under the laws of this state. At the same time it was further ordered that a special election be held at the usual place of voting in said town on the 15th day of July, 1882, for the purpose of taking said vote, as provided by section 57, c. 17, Acts 1881, and chapter 11, Acts 1882. After the result of said election, which was favorable to the subscription by a vote of more than three fifths of those voting on the question coupon bonds were prepared, with coupons attached, payable to bearer at the office of a bank of deposit in the city of New York. Thus being negotiable in form, these bonds were duly delivered to the railroad company, and passed into the hands of the plaintiffs for valuable consideration, they having purchased them at par from the president of the railroad company. The town having subsequently refused to pay 10 of these interest coupons, which were detached and presented for payment, an action for assumpsit was instituted in the circuit court of Mason county. The declaration under which a trial was had set out the ordinances of the town, and the vote of the qualified voters; also an exact copy of one of the bonds sued upon, which bond recited the acts of the legislature by authority of which it was issued, the delivery to the railroad company, and the purchase for value by the complainants, and the failure to pay the semiannual installment of interest for which suit was brought. The declaration likewise contained, immediately after the recital of the said acts of the legislature and the ordinances of the town, the following general averment: "And so the plaintiffs aver that all of the said ten bonds and interest notes or coupons thereto attached were lawfully made executed, sold, and delivered by the said town of Point Pleasant to the said Point Pleasant & Ohio River Railroad Company." Held, a demurrer to this declaration was properly overruled.
2. The authority conferred by said acts of the legislature authorizing towns to subscribe to the capital stock of railroad companies and to issue bonds therefor, will be construed to be in aid of the constitution, and not in violation thereof, and as providing that the towns taking advantage of such legislation shall at the same time comply with all the provisions of the constitution, including section 8 of article 10, which is as follows: Said section provides that "no county, city, school district, or municipal corporation, except in cases where such corporations have already authorized their bonds to be issued, shall hereafter be allowed to become indebted, in any manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate, exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness; nor without at the same time providing for the collection of a direct annual tax, sufficient to pay, annually, the interest on such debt, and the principal thereof, within, and not exceeding thirty-four years; provided, that no debt shall be contracted under this section, unless all questions connected with the same shall have been first submitted to a vote of the people, and have received three fifths of all the votes cast for or against the same."
3. While the declaration in this case does not specifically allege a compliance with section 8 of article 10 of the constitution, yet it contains enough to make for the plaintiffs a prima facie case entitling them to recover; and, if the defendant wished to set up the defense of the unconstitutionality of the issuance of the bonds, it should have done so by proper pleading, and have sustained the issue by proper and sufficient, evidence.
4. In an action of assumpsit, it is not error in the court to reject special pleas which set up matter which amounts, in effect, to the denial of the original promise, for the reason that any evidence which the defendant has to sustain such pleas would be admissible under the general issue of non assumpsit, which, in this case, was pleaded.
5. Where a bill of exceptions states, after having set out the evidence of the plaintiffs, that "the defendant, by its attorney, excepted and objected to each and every part of the foregoing evidence going to the jury, and to every item thereof, but the court overruled said objection and exception, and allowed all of said evidence to go to the jury," it was not error in the court to refuse to grant the motion of the defendant, if any of the plaintiffs' evidence was proper to be introduced. It is the duty of a party objecting to evidence to specify and point out such portions as he deems objectionable, and, in the absence of any such specifications, the court will overrule the motion, if any of the evidence thus objected to en masse should be legitimate and proper.
6. The plaintiffs in this case, having proved substantially the allegations of the declaration by introducing the ordinances of the town and proving the canvassing of the vote, the delivery of the bonds, the incorporation of the town, (which had been put in issue by a special plea,) the purchase of the bonds by the plaintiffs for valuable consideration, and all other facts alleged which were necessary to make out a prima facie case, it was not error to overrule the defendant's demurrer to the evidence, and give judgment against it. It was not necessary for the plaintiffs to prove a compliance with section 8 of article 10 of the constitution, for the reason that the defendant had not put in that defense, as was its duty to do if it meant to rely upon the unconstitutionality of the bonds.
7. It was not error, under the facts and circumstances of this case as described above, to refuse to set aside the verdict and judgment rendered and entered as above described.
Error to circuit court, Mason county.
Trespass on the case in assumpsit by W. H. Brown & Bros. against the town of Point Pleasant to recover for certain unpaid coupons. Verdict and judgment for plaintiffs. Defendant brings error. Affirmed.
Gunn & Gibbons and Tomlinson & Willey, for plaintiff in error.
Simpson & Howard and Brown, Jackson & Knight, for defendants in error.
LUCAS, P.
The council of the town of Point Pleasant, by an ordinance passed on the 12th day of June, 1882, ordered that a vote of the qualified voters be taken on the question of subscribing $5,000 to the capital stock of the Point Pleasant & Ohio River Railroad, a corporation existing under the laws of this state. At the same time it was further ordered that a special election be held at the usual place of voting in said town on the 15th day of July, 1882, for the purpose of taking said vote, as provided by section 57, c. 17, Acts 1881, and chapter 11, Acts 1882. At a meeting of the council on the 17th of July, 1881, the vote upon the proposed subscription was canvassed, and it was ascertained that there were 121 votes case, of which 103 were in favor of said subscription and 18 opposed. The necessary three fifths required by the law were thus found to have voted in favor of the subscription. Subsequently, on the 22d day of August, 1882, it was ordered by the council that the bonds, with coupons attached, of the denomination of $500 each, be signed and executed by the mayor and recorder, bearing interest at the rate of 6 per cent. per annum, payable semiannually at the Metropolitan National Bank, Broadway, New York, payable to bearer in 15 years from their date, but redeemable and payable, at the pleasure of the council, any time after 5 years, on publication of 30 days' notice in the New York Herald. It was further ordered that D. W. Polsley be appointed a committee of one to have said bonds printed, and, when executed, delivered them to said railroad company, and receive certificates of stock in said company therefore. The form of the bond, for the interest of which the action was brought, is set out in full in the amended declaration, and is as follows: ...
To continue reading
Request your trial