Louisville & Nashville R.R. Co. v. Cnty. Court of Davidson

• Decision Date: 31 December 1854
• Court: Tennessee Supreme Court
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY v. THE COUNTY COURT OF DAVIDSON et al.

33 Tenn. 637

LOUISVILLE & NASHVILLE RAILROAD COMPANY

v.THE COUNTY COURT OF DAVIDSON et al.

Supreme Court of Tennessee.

December Term, 1854.

FROM SUMNER, WHITE, AND DAVIDSON.

These several cases from the counties of Davidson, Sumner, and White, involving analogous principles arising under the several acts of the Legislature authorizing and regulating county subscriptions to railroads, were submitted to this court, and argued and considered together. The county court of Davidson, upon the application of the Louisville & Nashville Railroad Company to take stock in their road, ordered the question to be submitted to the voters of the county whether said county court should subscribe $300,000 to the capital stock of said company. In March, 1853, the election was held, and resulted in there being a majority of those voting for the subscription. At the January term, 1854, of said county court, application was made to the court, by said company, to levy a tax for the payment of the interest, etc., on said subscription. This was refused, and application was thereupon made to the circuit court, at its January term, 1854, for a mandamus to compel the levy of said tax. The mandamus issued, and was made absolute upon a final hearing by Judge Baxter; from which the county court appealed. The same company applied to the county court of Sumner, for a like subscription, and an election was ordered accordingly by the county court, composed of three justices, at its June term, 1853. The election was held, and the proposition carried. At the March term of said court, 1854, the question of issuing county bonds for the amount of said subscription was, upon the application of said company, ordered to be submitted to the vote of the people of said county. In pursuance of said order the election was held, and resulted in a majority of the votes given being in favor of the issuance of said bonds. In May, 1854, after said election, the agent of said company made application to the chairman of said court for the issuance of said bonds, which was refused. A mandamus nisi issued from the circuit court of said county, at the June term, 1854, to compel the issuance of said bonds, which was made absolute at the October term following, Judge Baxter presiding; whereupon the chairman appealed to this court. The case from White county was a bill filed by Eli Sims and others, tax-payers of said county, in chancery at Sparta, against the South-Western Railroad Company, and others, seeking a perpetual injunction against the collection of a tax levied by the county court of said county, for the payment of the subscription of said county to said railroad, which had been made in pursuance of the provisions of the act of 1852, ch. 117. At the July term, 1854, of said chancery court, his honor T. Nixon Vandyke, chancellor, dismissed the bill. The complainants appealed. All the material facts of each case are stated in the opinion.

Meigs, Wm. Thompson, Guild, Cooper, and N. S. Brown, for the Louisville & Nashville Railroad Company; Marshall and Bradford, for the county court of Sumner; E. A. Keeble and McEwen, for the county court of Davidson; Colms, for the South-Western Railroad Company; M. M. Brien and Washburn, for Eli Sims and others.

For the county courts it was argued:

1. That the election in Davidson county was void, because there was not a majority of the voters of the county in favor of the subscription. The general law of January 22d uses the words “majority of the votes polled,” while the act of February 28th requires a “majority of voters.” This change of phraseology evidences a change of intent.

2. But the election in both counties was void for irregularity: In Sumner, because not advertised according to the acts; because the propositions were not there prescribed by the act, were blended and misrepresented. In Davidson no election was held in one of the civil districts. This is a fatal error, and makes the election absolutely void. Marshall v. Kerns, 2 Swan, 68. It is no answer to say that an election cannot be attacked collaterally, because, in the first place, this election is of a peculiar character, and not between parties interested to purge the polls; and, secondly, it is not merely voidable, and therefore good until set aside, but absolutely void. This distinction is clearly made in the case referred to.

3. It is submitted that aiding in building a railroad by subscribing for stock in a company incorporated for that object is not a county purpose, in the sense of the Constitution. The very amount to be subscribed for success might deprive it of that quality. Would it be a county purpose to take stock of greater value than all the taxable property of the county? This is not the main objection. The road is not under the control of the county. The company might lawfully abandon the business of running the cars; or it might exclude the county from the benefits of the road, by having no depot in the county or its neighborhood. The institution of counties was neither for the purpose of facilitating commerce nor encouraging manufactures, but a mere police regulation, devised for the ease and convenience of the inhabitants in their individual concerns of the right of property and personal safety. They were not created by the Constitution, nor the laws under it; they are recognized, only, in both. And looking to their original institution, and tracing their history to the present day, we can find nothing which warrants the conclusion that the extensive power conferred by the acts in question is a purpose of their creation. The real gist of the act of 1852, ch. 117, is to force minorities to become subscribers to a pecuniary enterprise against their will, which is an unwarrantable interference in their private affairs, and a gross violation of the personal liberties of the people. Const., art. 1, sec. 1. It is against common right that the majority of citizens in a particular territory should subject the minority to heavy burdens against their will. A county purpose, to authorize a county tax, must be paid for out of the county treasury, and must be an adventure of the county, and under its control. A tax for a county purpose must be a county tax--that is, one that comes into the county treasury to be used for that purpose.

4. The counties in Tennessee, it is submitted, are neither corporations nor quasi-corporations, but are civil divisions of the state, under the jurisdiction of a body of men called justices of the peace, as to certain concerns and well-defined matters. By immemorial usage these justices are considered to have perpetual succession, under the name of “justices of the county court,” and to this extent compose a court, which is, in some sense, a corporation. This corporation, under the late statutes, takes bonds payable to the chairman of the county court and his successors in office. The county court is a corporation sub modo, but the county is not; and the inhabitants are not corporators, but citizens, subject to be governed by the court under the laws of the land. They have never consented, as corporators have, to be governed differently from citizens of all the counties, by reason of a vote of a majority of the county. Counties do not hold under charter; have no franchises; are not subject to forfeiture, or dissolution, or visitation, or legislative repeal; can make no by-laws. They are civil divisions of the state--in some sense, bodies politic--with restricted powers, and, under art. 11, sec. 7, of the Constitution, must have the same powers, and be subject to the same duties, throughout the state. These powers and duties are prescribed by statute. 1827, ch. 49; 1835, ch. 6; 1837, ch. 3 and ch. 135, etc. It appears from these acts that it is expressly incompetent for a court, composed of three justices, to bind the county court by an order such as comes in question in this case. But if the statutes are silent as to the number of justices who should be present when said order was made, the decisions are that a majority of all the justices must compose the court, and a majority of those present must make the order, and this can only be done at the quarterly courts. This is the way, and the only way, that a contract can be made by the court, binding on the county. Ang. & Ames on Corp. 459, 460; 9 Humph. 266; 2 Kent's Com. 288; Ang. & Ames, 199, 215, 267, 278.

5. The acts of 1852 are unconstitutional, because the powers conferred upon the people thereby are legislative in their character, and cannot be exercised by them. The vitality of the legislation is made to depend upon the popular vote. The efficacy of the law, as well as the making of the contract, depends on the popular will. The test is, Do the people, by their vote, do more than contract? If they do, it is legislation, by all the cases. The distinction is, if the subscription were not lawful without the vote, the vote would not make it so. If the subscription were authorized and lawful without the vote, and the vote was nothing more than a contract, or the execution of or carrying into effect a law in full force without a vote, then it would be a good law, under the decisions. 4 Har. 479; Supreme Ct. N. Y., 1834, Law Mag.; Vinton County Case, in Ohio. It is insisted that the law in this case has no effect except by the vote, and is therefore void.

6. The acts are, in fact, nothing more than a catalogue of judicial sentences pronounced by the Legislature, whose execution is to take place provided the legal voters of the counties shall, by a vote, say that the taking of stock in said counties shall be a corporation purpose; and, as such, is not only an encroachment on the judicial department of the government, but is an assumption of power to contract for the counties as bodies politic, and for the tax-payers thereof. State v. Fleming, 7 Humph. 152. The power granted to the circuit court, under the writ of mandamus, is contrary to the case of...