Cudd v. Calvert

Citation54 S.C. 457,32 S.E. 503
PartiesCUDD et al. v. CALVERT, Mayor, et al.
Decision Date23 March 1899
CourtUnited States State Supreme Court of South Carolina

32 S.E. 503
(54 S.C. 457)

CUDD et al.
v.
CALVERT, Mayor, et al.

Supreme Court of South Carolina.

March 23, 1899.


Preliminary Injunction—Dissolution—Appeai —Review—Railroads—Public Aid— Stock Subscriptions.

1. Where the facts alleged in the complaint entitle plaintiff to an injunction, and the injury may be accomplished before the final hearing, it is error to dissolve a temporary injunction on affidavits.

2. The supreme court will not refuse to consider a question involved in the decision, as not having been raised in the court below, unless the record shows that it was not so raised.

3. Where, on a motion on affidavits to dissolve a temporary injunction, the court considered the whole case as though the hearing was on the merits, the objection that a temporary injunction cannot be dissolved on affidavits where the injury may be accomplished before the final hearing, and where plaintiff's complaint entitles him to the relief, can be raised for the first time on appeal, on exceptions to the decree.

4. Act Feb. 9, 1882, authorizes cities and towns to subscribe to the capital stock of a railroad, subscriptions to be made in coupon bonds, with the consent of a majority of the voters of the subscribing towns. Citizens of the city of S. petitioned the council to submit the question of subscribing a stated sum by an ad valorem tax, to be expended in the construction of such railroad. This proposition was submitted to the voters, and carried by a majority. Const. 1895 authorizes the general assembly to validate the subscription of the city of S. to the capital stock of such railroad, and to validate and authorize

[32 S.E. 504]

the issuance of bonds and payment of the same. Held, that the general assembly had no power to pass Act Feb. 25, 1896 (22 St. at Large, p. 316), declaring said election in the city of S., on the question of subscribing to the bonds of said railroad, to have been legally held, and said subscription to have been legally made, and to be binding, and authorizing the issuance of said bonds, because there never had been a subscription by the city to the stock of said railroad, and the constitution merely authorized the general assembly to validate a subscription which had already been made.

Appeal from common pleas circuit court of Spartanburg county; D. A. Townsend, Judge.

Action by J. N. Cudd and others against Archibald B. Calvert and others, as mayor and aldermen of the city of Spartanburg, for injunction. A temporary injunction was dissolved, and plaintiffs appeal. Reversed.

The ordinance of the city of Spartanburg referred to in the opinion is as follows, viz.:

"Whereas, an election was held in the city of Spartanburg on the question of the subscription of the sum of twenty-five thousand dollars to the capital stock of the Spartanburg & Rutherfordton Railway Company; and whereas, a majority of the qualified electors voted in favor of said subscription, and the same was thereupon made; and whereas, said subscription was made payable in bonds of the city of Spartanburg, as authorized by the act of the legislature; and whereas, an ordinance of the constitutional convention passed on the 20th day of November, 1895, provided that the general assembly might enact such laws as were necessary to validate and carry into effect the subscription to the capital stock of the Spartanburg & Rutherfordton Railroad Company, and validate and authorize the issue of bonds of the city of Spartanburg in payment of the said subscription; and whereas, by the terms of said act, the organization of the Spartanburg & Rutherfordton Railroad Company, the acts of incorporation, and all acts amendatory thereto was validated and confirmed: Now, be it ordained, by the mayor and aldermen of the city of Spartanburg, that the said subscription of twenty-five thousand dollars to the capital stock of the Spartanburg & Rutherfordton Railroad Company is hereby ratified and confirmed; that, in accordance with the authority given by the election duly held, the ordinance of the constitutional convention, and the act of 1896, the said city of Spartanburg will cause to be issued and executed twenty-five thousand dollars of seven per cent, coupon bonds, payable in sixteen, twenty, and twenty-four years after the date thereof; that the coupons shall be made payable semiannually, on the first day of January and July of each year, payable at the city treasurer's office in the city of Spartanburg, the bonds to bear such date as may be fixed and agreed upon by the city council and the proper authorities of the Spartanburg & Rutherfordton Railroad Company; that said bonds, when printed and executed, will be delivered to the proper authorities of the Spartanburg & Rutherfordton Railroad Company, pro vided that said bonds shall not be delivered to the said railroad company, or to any other person or company, or to any other person or cor poration for it, until the said company, or some other company with which it shall become consolidated, shall have built and constructed a railroad into the city of Spartanburg from the direction of the North Carolina line, or shall have given sufficient guaranty to the committee herein provided for that said road will be constructed, said guaranty to be approved by city council. Ordained, further, that the faith and credit of the city is hereby pledged to the payment of the interest and principal of the said bonds, as they may fall due, and that an annual levy be made on all taxable property in said city to raise the amount sufficient to pay the interest upon said bonds, and also the principal as it may mature. Ordained, further, that the mayor will appoint a committee consisting of not less than two aldermen, who shall be charged with the special duty of printing said bonds and having them executed by the proper authorities; the said committee being authorized to select designs and make contracts for printing, and to do any and all acts necessary to carry out the object of this ordinance."

The decree appealed from is as follows, viz.:

"This is an action to enjoin the issues of certain bonds. A temporary injunction was granted, and an order to show cause issued. The return was made on August 16th, at Spartanburg. The plaintiffs contend, substantially, that the city authorities of Spartanburg are about to issue certain bonds, nominally in aid of the Spartanburg & Rutherfordton Railroad Company, but ultimately in aid of some other railroad company which it may consolidate, upon the basis and authority of a subscription claimed by said city authorities to have been authorized by a vote of the people of said city in 1882, under the charter of the Spartanburg & Rutherford Railroad Company and acts amending the same; that said issue of bonds will be a wrongful and injurious burden to the taxpayers...

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