Coe v. Caledonia & Mississippi Railway Company
| Decision Date | 28 September 1880 |
| Citation | 6 N.W. 621,27 Minn. 197 |
| Parties | Charles A. Coe and others v. Caledonia & Mississippi Railway Company, impleaded, etc |
| Court | Minnesota Supreme Court |
The plaintiffs, resident tax-payers and freeholders in the village of Caledonia, in Houston county, brought this action in the district court for that county to restrain the defendant Buell from delivering to the defendant railway company, and the railway company from receiving from him certain bonds of the village, amounting to $ 20,000, voted in aid of the railway, and executed by the town officers, and by them placed in escrow in the hands of defendant Buell. The railway company appeals from an order of Page, J., overruling its demurrer to the complaint, the substance of which is stated in the opinion.
Order reversed.
W. H Harries and Cameron & Losey, for appellant.
Wilson & Gale, for respondents.
The petition on which the special election was called being coupled with the condition that the railway company should erect and permanently locate its depot on the land described in it (the same mentioned in the opinion) was void, (1) because the act under which it was made provides for no conditions, and hence the petition was not in the form prescribed by the statute; and (2) because the condition for the location of the depot at a particular place as a condition of the bonus is against public policy. Munson v. Town of Lyons, 12 Blatch. 539; Fuller v. Dame, 18 Pick. 472; Bestor v. Wathen, 60 Ill. 138; Jacksonville etc., R. Co. v. Mathers, 71 Ill. 592; St. Joseph, etc., R. Co. v. Ryan, 11 Kans. 602; Marsh v. Railroad Co., 64 Ill. 414; Holladay v. Paterson, 5 Oregon, 177; Williamson v. Chicago, Rock Island & Pac. R. Co., 4 N.W. (N. S.) 870. And the condition cannot be rejected as surplusage, but the whole contract must be held void. Kimbrough v. Lane, 11 Bush, 556; Lindsay v. Smith, 78 N.C. 328; Alexander v. Owen, 1 Term Rep. 225; Wellyams v. Bullmore, 32 Beav. 574; 1 Addison on Contracts, § 300.
The bonds are void because the notice of election on May 23, 1879, was posted on May 13, 1879, and less than ten days prior to the election called. Statutes authorizing municipal indebtedness in aid of railways must be strictly pursued. Town of Wellsborough v. New York & Canada R. Co., 76 N.Y. 182; People v. Hurlburt, 46 N.Y. 110; People v. Spencer, 55 N.Y. 1; and in such proceedings the election is a nullity where the notice thereof is not given for the prescribed time. Williams v. Roberts, 88 Ill. 11; People v. Hurlburt, 46 N.Y. 110; People v. Fort Edward, 70 N.Y. 28. The statute requires the notice to be posted "at least ten days" prior to the election, and this means that ten clear days must elapse between the posting and the election, exclusive of the day of posting and that of the election. Greve v. St. Paul, S. & T. F. R. Co., 25 Minn. 327; Wilson v. Thompson, 26 Minn. 299; State v. Brown, 22 Minn. 482; Rex v. Justices of Herefordshire, 3 Barn. & Ald. 581; Zouch v. Empsey, 4 Barn. & Ald. 522; Regina v. Justices of Shropshire, 8 Ad. & El. 173; In re Prangley, 4 Ad. & El. 781; Mitchell v. Foster, 12 Ad. & El. 472; Blunt v. Heslop, 8 Ad. & El. 577; Young v. Higgon, 6 M. & W. 48; Gorst v. Lowndes, 11 Simons, 433; Peables v. Hannaford, 18 Me. 106; Buttrick v. Holden, 8 Cush. 233; Marvin v. Marvin, 75 N.Y. 240; Small v. Edrick, 5 Wend. 137; Phelan v. Douglass, 11 How. Pr. 193; Commercial Bank v. Ives, 2 Hill, 355; Judd v. Fulton, 10 Barb. 117; Miller v. Lefever, 4 N.W. (N. S.) 929. In Warsop v. City of Hastings, 22 Minn. 437, the only question made by the appellant as to the notice of election was whether it was published prematurely, and the point now made was not made or passed on.
By the election of March 19, 1875, the power to vote aid under the act of 1875 was exhausted. Jones on R. R. Securities, § 268; People v. Town of Waynesville, 88 Ill. 469; Danville v. Railroad Co., 43 Vt. 144; State v. County Court of Daviess County, 64 Mo. 30; Musser v. Fuirmont, etc., R. Co., 7 Am. Law Reg. 284.
This is an appeal from an order overruling a demurrer to a complaint. The question is, does the complaint state facts constituting a cause of action?
The important allegations of the complaint are these: On March 11, 1874, the village of Caledonia voted to issue bonds to the defendant in the sum of $ 12,000. This was done under Sp. Laws 1874, c. 59. On March 19, 1875, the village voted to issue bonds to the defendant in the sum of $ 8,000, additional to the $ 12,000 before voted. This was done under Sp. Laws 1875, c. 132. It does not appear that either of these votes was based upon any proposition or agreement upon the part of the defendant, nor that it has been followed by any action on the part of the defendant by which it has bound itself to perform the conditions upon which the bonds were to be issued, so as to create any mutual engagement between it and the village; neither does it appear that the defendant has at any time claimed to be entitled to any of the bonds thus voted to be issued, or that it has demanded any of them, and none of them have been issued.
On May 23, 1879, the village voted to issue bonds to the defendant in the sum of $ 20,000. This also was done under Sp. Laws 1875, c. 132. This vote was based upon a written proposition on the part of the defendant, by which it agrees, in consideration of $ 20,000 of bonds to be voted and issued by the village, that it will "build and construct its railroad from Sumner, in the county of Houston and state of Minnesota, * * * to the said village of Caledonia, and have the cars and locomotives running thereon, and will build and erect its depot, and permanently locate the same, on the land reserved for that purpose by James H. Cooper, in his west addition to the village of Caledonia, and lying and being on the west side of Kingston street, in the corporate limits of said village of Caledonia, on or before the first day of October, 1879, and will not ask, demand or receive the bonds * * * mentioned, unless said railroad is so built and constructed, with the cars and locomotives running thereon, and the said depot is built and located at the place above designated: * * * provided, * that the said bonds be delivered into the hands of the Hon. D. L. Buell, in escrow, to be by him delivered to the said * * * company, only upon compliance with the foregoing proposition on the part of said company." The proposition, containing many other provisions in addition to those above recited, was in terms submitted to the voters of the village at the election at which the issue of $ 20,000 was voted, and was in terms accepted by the village, and the bonds were accordingly executed and delivered to Buell in escrow.
1. Sp. Laws 1875, c. 132, under which this vote was had, provides for a special meeting of the legal voters of the village to vote upon the question of issuing bonds to aid in the construction of a railway, and that notice of the time, place, and object of the meeting shall be posted in three public places, "at least ten days prior thereto." In the case before us, the notices were posted on the 13th of May, and the meeting held on the 23rd of the same month. The time of notice was sufficient. The general rule is that where notice is required to be posted or published a specified number of days before an event of which notice is to be given, the required number of days is computed by excluding the day of first posting or publishing, and including the day on which the event is to occur. Worley v. Naylor, 6 Minn. 123 (192;) Arnold v. Nye, 23 Mich. 286, 293. This is in accordance, also, with the rule prescribed by our statute with reference to the computation of time in civil actions. Gen. St. 1878, c. 66, § 82. No reason can be given why a different rule should obtain in cases arising otherwise than in civil actions, nor why the law should not be consistent in following the statutory rule in all instances to which it is logically applicable by analogy.
2. The plaintiff contends that the vote of May 23, 1879, to issue bonds to the amount of $ 20,000, was unauthorized, and therefore void, on account of the condition in reference to the location of the depot. The statute (Sp. Laws 1875, c. 132,) authorizes the village of Caledonia, and other villages, etc., in Fillmore and Houston counties, to "issue bonds * * * to aid in the construction of any railway running into, or proposed to be built through, either of the counties aforesaid." Section 4 provides that upon a petition of ten freeholders of any such village, etc., for a special meeting of the legal voters thereof, "stating the sum in bonds desired to be furnished, and the railway proposed to be aided," it shall be the duty of the proper authorities to call such meeting, "stating in the notice thereof the time, place and object of the meeting." "
The position of the plaintiff, in effect, is that these provisions of statute (and they are all that are important here) authorize the village of Caledonia simply to vote an issue of its bonds, in a designated amount, to aid in the construction of a designated railway, without any conditions of any kind. From this position we have no hesitation in dissenting. In direct...
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