Harrington v. Town of Plainview

• Decision Date: 06 October 1880
• Citation: 27 Minn. 224,6 N.W. 777
• Parties: HARRINGTON v THE TOWN OF PLAINVIEW AND OTHERS.
• Court: Minnesota Supreme Court

27 Minn. 224

6 N.W. 777

HARRINGTONvTHE TOWN OF PLAINVIEW AND OTHERS.

Supreme Court of Minnesota.

Filed October 6, 1880.

Appeal from order of district court, Wabasha county.

Taylor & Sperry, for appellant.

Wilson & Gale, for respondent.

GILFILLAN, C.J.

In this case the respondent moved to dismiss the appeal on the ground that since the entry of the judgment appealed from the bonds to enjoin the issuance of which the action was brought have been issued, and that, therefore, the question whether the defendants ought to issue them is a mere abstract question. This would be so were it not that the judgment is also for costs against the plaintiff. As held by this court in James v. Cornish, 4 N. W. REP. 2, 25 Minn. 305, the appellant has the right to have the judgment examined to determine whether it was correct, so as to entitle defendants to costs. The motion to dismiss is therefore denied.

The point is also made that it is not a proper case for injunction, because, if the statute is unconstitutional and gives no authority to issue the bonds, their invalidity will appear on their face, and there will always be a legal defence to them in whosesoever hands they may come. If, by recital of the act under which they issue; their invalidity must appear on their face, so that there could be no bona fide holder of them, an injunction will not lie to restrain their issuance. Township of East Oakland v. Skinner, 94 U. S. 255. But if the act be valid, a mere recital in the bond that it was issued under and pursuant to such act, without any further recital, is sufficient, so that a bona fide holder will be protected, although there may have been a defect in the proceedings under the act to authorize the officers to issue the bonds. Humboldt Township v. Long, 92 U.S. 642.

If the act in question here were wholly void, and no valid bonds could be issued under it, the case would fall within the former of these decisions. But the act provides two modes for authorizing the issue of bonds, one of which is conceded to be valid, and the other only is claimed to be invalid. We do not think the bond need recite under which of these provisions of the act it is issued. It is enough to refer to the act generally, and a purchaser would have the right to presume that it was issued under the valid provisions of the act. There might, therefore, be bona fide purchasers of the bonds.

It is a proper case for injunction. Chapter 106, Gen. Laws 1877, provides:

Section 1. “Any county, town, incorporated city, or incorporated village in this state is hereby authorized and empowered, in the manner herein provided, to aid in the construction of any railroad in this state to be constructed by any railroad company for public use, by authority of any law of the state, in the manner provided, and which will promote the general prosperity and welfare of the tax payers of such municipality; and the mutual agreement hereinafter referred to, when the same shall be arrived at, shall be conclusive evidence that such railroad will so promote the general prosperity and welfare of the tax payers of such municipality. ***”

Sec. 2. “The aid to be contributed to the construction of any such railroad by any such county, town, city, or village shall be by the bonds of such municipality, to be issued to or for the use of such railroad company. ***”

Sec. 3. “No such bonds shall be issued to or for the use of any such railroad company, and no such stock shall be issued to any such municipality until a mutual agreement in relation thereto shall have been arrived at in the mode hereinafter specified; and when such mutual agreement shall have been arrived at (in either one of such modes) the proper officers of such municipality shall be authorized and required to issue and deliver such bonds in conformity with the mode so agreed upon,” etc.

Section 4 provides that a railroad company, seeking such aid, shall make and deliver to the county auditor, town clerk, or city or village clerk its proposition in writing for the issuance to it of the municipal bonds.

Section 5 provides a mode for arriving at the “mutual agreement” mentioned in the preceding sections, which is by means of an election by the legal voters of the county, town, city, or village, as the case may be, notice of which is to be given in a mode prescribed by the county auditor, or town, city, or village clerk, upon receiving the proposition, in which such voters vote for or against such proposition; and only in case a majority vote for it, is it to be deemed accepted.”

Section 7 provides another mode of arriving at such “mutual agreement,” as follows: “First. Within three months after the filing of any such proposition as is specified in the fourth section of this act, with any county auditor, town clerk, or clerk of any city or village, as the case may be, the said railroad company shall cause notice to be given, as prescribed in the fifth section of this act, in three public places in each election precinct in the district in which aid is desired, stating that after a day named in said notice, which shall be at least five days after its date, a petition to the proper authorities of said county, town, city, or village will be presented to the resident tax payers of such county, town, city, or village for their signatures, asking such authorities to agree to such proposition, and such petition shall be appended to a substantial copy of such proposition. Second. If, within four months after the filing of such proposition with any such county auditor, town clerk, or clerk of any city or village, as the case may be, the said railroad company shall deliver to such clerk a substantial copy or copies of such proposition, so filed with such petition, to the proper authorities of such county, town, city, or village, asking such authorities to agree to such proposition appended thereto, bearing the signatures of a majority of the persons residing in such county, town, city, or village, who were assessed for taxes upon real or personal estate in such county, town, city, or village, as the case may be, as shown by the last assessment roll of the district of which aid is desired, which signatures shall be verified by the affidavit of some person witnessing such signatures, then such mutual agreement for the issue of bonds by such municipality, and of stock by such railroad company, shall be deemed and considered to have been arrived at and perfected, and thereupon such bonds and stock shall be issued and delivered in conformity with the true intent and meaning of such proposition, and with the provisions of this act.”

The Plainview Railroad Company proceeded, for the purpose of procuring the bonds of the town of Plainview, under section 7. Having filed its proposition with the town clerk, it caused notice to be given that a petition to the town authorities, asking them to agree to such proposition, would be presented for signature...