Cudd v. Calvert

• Citation: 32 S.E. 503,54 S.C. 457
• Parties: CUDD et al. v. CALVERT, Mayor, et al.
• Decision Date: 23 March 1899
• Court: South Carolina Supreme Court

32 S.E. 503

54 S.C. 457

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

Supreme Court of South Carolina

March 23, 1899

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 by 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 property 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, provided 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 corporation 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 as wrongful and injurious burden to the tax-payers of said city, and is not authorized by either the charter of the said Spartanburg & Rutherfordton Railroad Company or the acts amending the same; that the charter of the city of Spartanburg did not authorize the people of Spartanburg to vote for such subscription, or allow the said city authorities to make such subscription, even if voted by the people, and that no such subscription has been made; that neither the original petition of the people to the city council, nor the order issued by the council, was such as required by law, nor was the said election legal; that no such company as the Spartanburg & Rutherfordton Railroad Company was ever legally organized or ever existed in this state; and that the plaintiffs sue on behalf of all taxpayers of the said city. Defendants deny that plaintiffs sue for all the taxpayers of the city of Spartanburg, and deny the correctness of plaintiffs' construction of the acts of June 8, 1877, and February 9, 1882, and that said election was without authority, and that no such company as the Spartanburg & Rutherfordton Railroad Company was ever incorporated by the general assembly of the state, and that no act to amend the act of June 8, 1877, was ever enacted by the general assembly of the state, and that said Ordinance C was adopted without authority, and they also deny all the allegations of paragraphs 7 and 10 of the complaint. The defendants admit the incorporation of the city, and also the various acts of the legislature set forth in the complaint, and that the people of the city petition the city council to be allowed to vote for 'Subscription' or 'No subscription,' and that the election was ordered and held, and they allege that at said election a majority of the qualified voters of the said city voted in favor of such subscription, and that by an ordinance adopted June 2, 1898, they have directed bonds to the city of Spartanburg to the amount of $25,000 to be executed and delivered to the Spartanburg & Rutherfordton Railroad Company. The defendants set forth many other and various matters in relation to the importance of said railroad and its various connections, none of which I deem it necessary to set out here. Defendants also deny that the bonds so to be executed and issued are to be issued for any other or different purpose than that originally intended when the subscription was voted, in 1882.

"At the hearing in Spartanburg, there was a question raised as to whether certain affidavits should be read either in reply or as a part of the return. It was finally agreed that all the affidavits should be read, and I should rule on their admissibility; the affidavits referred to being in relation to the importance of the contemplated road and the various connections. I have read these affidavits, but do not consider them in forming my opinion, because I consider them irrelevant to the real issues in this proceeding, and therefore rule them out. I refer to the affidavit of O. S. Roberts, all of the affidavit of R. K. Carson except the last paragraph, and all of the affidavit of C. H. Schutte and others.

"After due consideration of the law and the evidence submitted before me, I think the temporary injunction heretofore granted herein should be dissolved. In my opinion, the defendants are simply proposing to do what a valid law of the state requires them to do, and I do not think that the disposition which they propose to make of the bonds about to be issued would be a diversion thereof, or would be in any other way illegal. None of the attacks made on the proceedings under which the bonds were originally voted, nor on the organization of the railroad company in whose aid they are about to be issued, nor on the power of the city council to issue and dispose of them as proposed, can, in my judgment, be sustained. I regard the original petition presented to the city council as in proper form. The expression 'ad valorem' therein found refers merely to the manner in which the petitioner thought the tax should be levied, in order to pay the principal and interest on the subscription for which they petition to be allowed to vote, and may just as well have been omitted from the petition, as the law would have followed that course of taxation in any event. I can find nothing wrong about the order issued by the city council through J. S. R. Thompson, as mayor, for the election to be held. It refers unmistakably to the act of June 8, 1877, which chartered the Spartanburg & Rutherfordton Railroad Company, and sets out intelligibly and plainly the object of the order, so that no one could be mistaken as to the nature of the election held. The last-mentioned act (February 9, 1882) does not style the company the 'Spartanburg & Rutherford Railroad Company,' as it is styled in the act of June 8, 1877; but it is clear that the two names refer to the same company, and the difference does not amount to even an irregularity or discrepancy, because it is plain that the legislature intended to make that change in the name of the company without the use of the formal words to express it. As to the point

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