Connor v. Green Pond, W. & B.R. Co.
| Decision Date | 26 September 1885 |
| Citation | 23 S.C. 427 |
| Parties | CONNOR v. THE GREEN POND, WALTERBORO AND BRANCHVILLE RAILROAD COMPANY. |
| Court | South Carolina Supreme Court |
1. An act entitled " an act to incorporate the Green Pond Walterboro and Branchville Railway Company" does not relate to more than the one subject expressed in its title ( Const. , art II., § 20), even though the act contains, besides the charter, provisions authorizing the County of Colleton to subscribe in county bonds to the capital stock of this company, upon certain conditions, such as petition for election, election, & c., and providing for a tax to pay interest on the bonds so issued.
2. The county commissioners having determined that the conditions precedent to a railroad subscription had been complied with and having issued to the railroad company county bonds in payment therefor, in action by taxpayers of the county to compel the cancellation of these bonds upon the ground that the conditions precedent had not been complied with, the burden of proof is upon the plaintiffs. They must show in such action, that the county commissioners acted without authority, or exceeded it.
3. Findings of fact by the Circuit Judge not disturbed.
4. Whether in a case like this the railroad company occupy the position of bona fide holders for value of the bonds issued to them, not considered.
Before HUDSON, J., Colleton, November, 1884.
The Circuit decree in this case, after reciting the act of incorporation and the pleadings, proceeded as follows:
The complaint showing these various matters and things upon its face, in the outset of the hearing a motion was made before me to dismiss the complaint, because it did not contain facts to constitute a cause of action. This motion I did not at the time grant, it being too grave a matter in my opinion to determine without a further investigation of the law, and without hearing further argument. I then, therefore, withheld my judgment upon that motion, and directed the plaintiffs to proceed with their testimony; to the introduction of the testimony the defendants objected. The objection was overruled and the testimony received. I have heard argument of counsel fully upon the testimony and upon the law of the case, and propose now to render my judgment.
The first question that presents itself to my mind, and which I will pass upon now, is whether, after the bonds were issued and delivered to the railroad company, the plaintiffs, as taxpayers of the County of Colleton, will be admitted to question the validity of those bonds, and have an investigation made of the regularity or irregularity of the various proceedings of the board of county commissioners. During the progress of those proceedings there is no evidence that any objection on the part of these taxpayers, or others was interposed to any part of the proceedings of the commissioners. No protest was preferred to the election, and now, for the first time, the validity of the bonds is attacked in the present complaint.
It is admitted by counsel on both sides that if these bonds were in the hands of bona fide purchasers for value, that these taxpayers could not assail their validity in this proceeding, or otherwise. Now, can they do so after the contract of subscription has been executed and the bonds delivered to the railroad company and the stock issued to the county? I find in Jones on Railroad Securities , to which I am referred by counsel for the plaintiffs, that the author, in section 268, holds that the taxpayer has the right in this form of proceeding and at this stage to ask for relief, and bases his authority upon two North Carolina cases, cited in his report below, one found in 76 N. C. , at page 79, and the other in 72 Id. , at page 86. These cases are not before me, and I regret that I have not the time to examine them for my own satisfaction.
I find in 24 Howard , U. S. Supreme Court Reports, in the case of Bissell et al v. The City of Jeffersonville , that Mr. Justice Clifford, in delivering the opinion of the court, holds a different doctrine. Here is what he says on page 299: " When the contract had been ratified and affirmed, and delivered to the railroad company in exchange for the stock, it was then too late to call in question the fact determined by the common council, and a fortiori , it is too late to raise that question in a case like the present, where it is shown that the plaintiffs are inncent holders for value." Whether there has been any modification in this opinion in any subsequent judgment I don't know. Upon reason and upon principle I think that it is a sounder doctrine than that which would suffer the taxpayer, who took no steps during the progress of the subscription to assert his rights, afterwards, and after the contract has been fully executed, to come forward and ask relief in the Court of Equity.
The process of preventing a subscription to a railroad company usually consumes a considerable length of time. All the taxpayers of the county are presumed to have full notice of so important and interesting a step, and, in fact, do ordinarily have actual notice, and are usually well informed in regard thereto. At all events, it is the duty of the taxpayer to watch such proceedings with vigilance, and to take such steps as will correct error or fraud on the part of those upon whom devolves the duty of making the subscription. If he neglects so to do, and suffers the contract to become executed, and the railroad to become the holder of the bonds in exchange for their stock, sound policy requires that a court should not at so late a day interpose to relieve it.
I hold, therefore, that these taxpayers are too late in asking the relief at the hands of this court. It was an easy matter for them to know whether a bona fide subscription of $10,000 was made; whether a bona fide petition of a majority of the freeholders had been presented, and whether the election ordered thereupon resulted in favor of subscription or no subscription. If they paid no attention to these matters and suffered the county commissioners to execute the contract, they are excluded now to ask the court to relieve them. But inasmuch as I have admitted and caused all a full hearing, and suffered these taxpayers to introduce evidence with the view to show that conditions precedent to the issue of these bonds had not been complied with, I deem it my duty to proceed and pass upon the weight of that testimony.
It is contended by the plaintiffs' counsel that it is only necessary that the plaintiff should make out a prima facie case of want of compliance with these conditions precedent, and that the proposition is then thrown upon the defendants to show fully and satisfactorily that the conditions were complied with. I do not so regard the burden of proof. He who assails the validity of a bond, or the validity of a judicial act of the board of county commissioners, whether acting as a board in the regular discharge of their duty, or a special board designated by the legislature to do and perform a certain act, takes upon himself the burden of proving the invalidity of that bond, or the error of the judgment so rendered.
In regard to the judgment of this special board, the doctrine that all things are presumed to have been rightfully done until the contrary is made to appear is rule of evidence in this case. Now, to show that the majority of freeholders did not sign a certain petition may be a very troublesome and difficult thing to do, and the fact that it is a difficult thing to prove does not relieve the plaintiff from the burden of so proving. But before they can have an executed contract rescinded, it devolves upon them to show by proof satisfactorily their right to have it so rescinded. The evidence adduced in this case, without attempting to repeat it here, is, in my opinion, not sufficient in justifying me in reversing the judgment of a local board, the members of which have large personal knowledge of the standing of the citizens of the county, and who possess facilities far greater than this court for ascertaining such a fact.
It appears from the evidence in the case that this board of county commissioners did take testimony, and resort to the most available testimony to ascertain the genuineness of the petition, and the status in regard to property of the various signers. The county auditor was examined and gave his certificate in regard to those petitions. Other citizens were examined. The board made use also, it is presumed, of their individual knowledge of the signers. They were in no haste to form a judgment, and after due deliberation decided that the majority of the freeholders of the county had signed a petition. For me now to hold otherwise would require full and satisfactory proof of the error committed by these men.
The evidence offered by the plaintiffs consists of the books of the auditor and the testimony of twenty-five or thirty persons, whose names appear upon the list, to the effect that they did not sign, nor did they authorize any one to sign for them. It is stated by counsel for the plaintiffs that of the names of the supposed signers of the petition, that there are 1,050 whose names do not appear upon the auditor's assessment book. This statement was allowed to be used by the counsel in the argument of the cause as a fact ascertained by them after comparison of the lists with the books.
In the argument of the cause counsel for the defendant gave a cursory examination to a part of the names and alleged that they had discovered that twenty-five of these names did appear upon the books. It is a well known fact that land is not always returned in the name or names of all the various persons entitled to a freehold interest therein. I fully appreciate the difficulty...
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