Goshorn v. Bd. Of Supervisors Of Ohio County. Nicholas Crawley

• Decision Date: 31 July 1865
• Court: West Virginia Supreme Court
• Parties: John Goshorn v. Board of Supervisors of Ohio County.Nicholas Crawley v. Same.Andrew Wilson v. Same.William S. Bryan v. Same.R. W. Hazlett v. Same

1 W.Va. 308

John Goshorn

v.Board of Supervisors of Ohio County.

Nicholas Crawley

v.Same.

Andrew Wilson

v.Same.

William S. Bryan

v.Same.

R. W. Hazlett

v.Same.

Supreme Court of Appeals of West Virginia.

July Term, 1865.

1. The county court of Ohio county issued bonds to the amount of 300, 000 dollars, payable to the Hempfield Railroad Company, due in twenty years, with interest payable semi-annually, after having been authorized to subscribe that sum to the capital stock of the company, by the voters of Ohio county, at an election held according to law. Held:

That the court acted within the scope of the authority and the powers granted it in the 61st chapter of the Code of Virginia, 1860.

2. The Hempfield Railroad Company is a Virginia corporation within the meaning of 57th and 61st chapters of Code of Virginia, 1860.

The Hempfield Railroad Company was incorporated by the legislature of Pennsylvania in 1850, to construct a railroad through the territory of that State from a point on the Penn sylvania Central Railroad, near Greensburg in Westmoreland county, to the western boundary of Donegal township, in Washington county.* Under this law, the company was organized as a Pennsylvania corporation.

On the 14th March, 1851, the General Assembly of Virginia passed "An act to incorporate the Wellsburg & Bethany Bailroad Company, and for other purposes." Session Acts, 1850-1, page 71. The sixth section of this act is as follows:

"The Hempfield Railroad Company, incorporated by virtue of an act of the General Assembly of Pennsylvania, approved on the day of 1850, shall be, and are hereby, authorized to extend and construct their railroad from a point on the western boundary of Donegal township, in Washington county, in the said State of Pennsylvania, through the territory of Virginia, to the city of Wheeling; and if the said company shall avail themselves of the privilege hereby granted, they shall, as to all their rights, property, franchises, powers, duties and obligations within this State, be subject to all the provisions of the Code of Virginia, so far as the same are applicable and not inconsistent with the intent of this section; and they shall commence their said extension within three years, and complete the same within six years from the passage of this act."

The 11tb section provides that the act shall be in force from its passage. The other sections contain nothing material to this controversy. The Code of Virginia referred to in the 6th section above quoted, is the Code of 1849.

A vote having been taken on the 8th of May, 1851, in Ohio county, on the question of a subscription by the county for not exceeding 3000 shares of the capital stock of the Hempfield Railroad Company, (the shares being 50 dollars each,) and three-fifths of the votes then given being in favor of the subscription, the county court, at its June term, 1851, ordered " that a subscription be made on behalf of the county for capital stock of the Hempfield Railroad Company to the amount of 150, 000 dollars, or 3, 000 shares, payable in coupon bonds of the county, which shall be made payable to said company or its order, at twenty years from their date, with interest payable semi-annually." Certain persons named in the order were appointed commissioners to make the subscription, and to agree with the directors of the railroad company as to the terms on which the subscription should be made, and the place at which the bonds and coupons were to be payable.

Under this order, a subscription to the amount of 150, 000 dollars was made to the stock of the Hempfield Railroad Company in the name of Ohio county, and 150 bonds of 1, 000 dollars each, numbered from 1 to 150, and dated May 15th, 1852, were delivered to the company in payment of the subscription.

Another vote having been taken on the 23rd of October, 1851, on the question of an additional subscription of 150, 000 dollars, with the like result, the county court at its June term, 1852, ordered such additional subscription to be made, payable as before, in twenty year coupon bonds. This order was substantially the same as the one made at the June term of 1851. Under it, the second subscription was made, and one hundred and fifty more bonds were delivered to the railroad company, each bond being for 1, 000 dollars, and dated May 15th, 1853. These last bonds were numbered from 151 to 300.

All the bonds from No. 1 to 150, thus issued, were in the following form:

Commonwealth of Virginia, Ohio County.

No. 40.

$1,000.

This is to certify, that the county of Ohio, in the commonwealth of Virginia, is indebted to the Hempjicld Railroad Company in the sum of 1, 000 dollars, which sum said county promises to pay twenty years after the date hereof, to the said railroad company, or the holder hereof, at the city of New York; together with interest thereon, at the rate of six per cent, per annum, payable semi-annually, on the 15th day of May and November, (until the principal sum shall be paid,) on the presentation of the annexed coupons or interest warrants, at the said city of New York. And the said county further agrees, that this obligation, and all rights and benefits arising therefrom may be transferred by general or special endorsement, or by delivery; for which payments well and truly to be made, the faith and property of the said county of Ohio, together with the amount of its stock subscribed and held in the said Hempfield Railroad Company, are hereby pledged under the authority granted in the 61st chapter of the Code of Virginia. In witness whereof, the undersigned, commissioners and agents appointed by the court of the said county, have hereunto set their hands, and caused the corporate seal of the said county to be affixed, and attested by the clerk of the said court, this 15th day of May, A. D., 1852.

l.s.

J. Gooding,

w. t. Selby,

James Kelly,

James Baker,

Agents and Commis-sioners of Ohio County.

Teste, JoHN McCULLOCH, Clerk."

The bonds numbered 151 to 300 were, as before stated, dated the 15th day of May, a. d., 1853, instead of the 15th day of May, a. d., 1852; and were signed by J. Gooding, W. T. Selby and James Baker, as agents and commissioners of Ohio county; but in all other respects they were in the same form as the above.

Immediately beneath each of the said bonds, from No. 1 to No. 150, there was, upon the face of it, a guaranty of the Hempfield Railroad, Company, in the following form:

"For value received, the Hempfield Railroad Company hereby guaranties the payment of the principal and interest of the above bond, No. 40, according to the terms thereof.

l. s. In witness whereof, the seal of the said company is hereto affixed, and these presents are signed by the president, and countersigned by the treasurer, this 15th day of May, a. d., 1852.

Thomas m. T. McKennan, President. Joseph Henderson, Treasurer."

The guaranty subjoined to the bonds numbered 151 to 300 was the same as the above in all respects, except that it was dated the 15th day of May, a. d., 1853, and was signed William Hart Carr, treasurer, and R. T. Conrad, president.

Forty coupons or interest warrants, for the several semiannual instalments of interest, were annexed to each bond. These were mutatis mutandis, in the following form:

" Ohio County Bonds.

Warrant for Thirty Dollars.

Interest on Bond No. 40, payable in the city of New York, on the 15th of May, 1858.

$30. John McCulloch, Clerk of Court."

A large amount of the bonds had been arranged on terms satisfactory to the holders, and surrendered to and cancelled by the county.

There were five separate writs of mandamus nisi, issued respectively on the petitions of John Goshorn, Nicholas Crowley, Andrew Wilson, William S. Bryan and Robert W. Hazlett, against John C. Hupp and nine others, members of the Board ot Supervisors of Ohio county. The petitioners proved to the court, in all, thirty-nine of the bonds above described, amounting to 39, 000 dollars; with unpaid coupons annexed to the same, maturing at different dates from November 15th, 1857, to November 15th, 1864. The coupons amounted to 12, 630 dollars, exclusive of interest. The demands of the petitioners were not for the principal of the thirty-nine bonds, but for the unpaid coupons, with interest on each from the time it matured. The coupons were held respectively, as follows: by John Goshorn, 196 coupons, amount 5, 880 dollars; Nicholas Crawley, 122 coupons, 4, 560 dollars; Andrew Wilson, 48 coupons, 1, 440 dollars; William S Bryan, 13 coupons, 390 dollars; and R. W. Hazlett, 12 coupons, 360 dollars.

The writs commanded the defendants, as members of the Board of Supervisors, to allow these claims and levy a tax on the property within the county to pay the same, or show cause before this court why they had not done so.

The cases involving the same matter of controversy were heard together. When the petition was first presented by the plaintiff at the January term, 1865, of this court, the issuing of a peremptory writ of mandamus was resisted by the defendants, who insisted that a rule for a mandamus nisi should first be granted, which position was sustained by the court; and accordingly, a rule was issued requiring the defendants to show cause at the July term following, if any they could, why a peremptory writ of mandamus should not be awarded against them. To this writ they made return: 1st. That the writ was not sufficient in law; 2nd, That the county of Ohio did not, nor did the defendants or the Board of Supervisors of Ohio county, owe the plaintiffs any part of the sum demanded in the writ; 3rd, That the Hempfield Railroad Company was not a joint stock company incorporated by or under any law of Virginia, at the time the pretended bonds and coupons were issued; 4th, That whilst it was true the county court of Ohio county had authority in law to subscribe, on behalf of the county, in the manner, and subject to the regulations, restrictions and limitations specified in the acts of the General...