McCrackin v. Greensboro, N. & A.R. Co.
| Decision Date | 13 January 1915 |
| Docket Number | 325. |
| Parties | MCCRACKIN ET AL. v. GREENSBORO, N. & A. R. CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Alamance County; Rountree, Judge.
Action by J. M. McCrackin and others, taxpayers, etc., against the Greensboro, Northern & Atlantic Railway Company and the Board of Commissioners of Alamance County, to restrain the issuance of county bonds in payment of a subscription to the defendant railroad company's preferred stock. A demurrer to the complaint was sustained, and complainants appeal. Reversed.
A provision that a county railroad aid should be void if the road was not constructed and in operation within three years held a condition precedent and that the county commissioners had no power to extend the time.
The following is the statement of facts taken from one of the briefs:
"On the 5th day of August, 1912, a petition was presented to the board of commissioners of Alamance county on the part of each of those townships of said county named in paragraph 2 (Record, p. 4) of the complaint in this action said petitions praying orders for elections to be held in each of said townships on the question of subscribing to the preferred capital stock of the Greensboro, Northern & Atlantic Railway Company, as provided for in chapter 770 of the Public Local Laws of 1911 and the laws amendatory thereof. The elections were duly ordered and held, the aforesaid townships each voted in favor of a subscription; and bonds, bearing date of 8th of October 1912, were issued by the county commissioners, as provided by the aforesaid chapter of the Public Local Laws of North Carolina.
Subsequent to the 5th day of August, 1912, the date of the orders for the elections, but prior to the 17th day of September, 1912, the date on which the elections were held, viz., on the 8th day of August, 1912, an agreement, set forth in the sixth paragraph of the complaint herein (Record, pp. 11-16), was voluntarily entered into between the railway company and the Greensboro Loan & Trust Company. This agreement provides, among other things, that, in consideration of the qualified voters of these several townships voting in favor of a subscription, the railway company agrees that the bonds therefor, when issued, shall be delivered to the trust company to be held in trust upon the condition that said bonds shall not be delivered to the railway company, or to any one else for it, until a railway from Greensboro, N. C., through Alamance county, to some connecting point on the Seaboard Air Line Railway, or the Norfolk & Southern Railway, or both, is completed by this company or its successors, and there are in operation over such line of railway trains for the transportation of passengers and freight, and upon the further condition that, unless a railway is so constructed and in operation within three years of the issuance of said bonds, the trust company shall deliver the bonds to the commissioners to be destroyed, and all the rights and equities of the railway company in said bonds shall cease. This agreement was widely published prior to the election in all the election districts. The bonds themselves contain no reference to the agreement, but, when issued, they were delivered to the trust company by the commissioners and are now held by it.
After the lapse of about 20 months of the 36 months' time limited in said agreement for the completion of said railway, the railway company presented to the commissioners a petition, as set forth in the seventh paragraph of the complaint (Record, pp. 16-20), alleging that it would be impossible to complete the railway within the time limited, and praying that the said time be enlarged by an additional two years. This petition was granted. Thereupon plaintiff brought this action and alleged that the commissioners were without authority to grant such an extension of time, and asked that the order to that effect be declared void, and that the trust company be enjoined from making any other disposition of said bonds than might be made under the aforesaid agreement between it and the railway company. Defendant railway company demurred to the complaint. Demurrer sustained, and judgment accordingly. Plaintiff excepted and appealed."
W. S. Coulter and J. R. Hoffman, both of Burlington, for appellants.
Long & Long, of Graham, and King & Kimball, of Greensboro, for appellees.
From a perusal of the facts stated in the complaint, it clearly appears that this question of subscription was submitted to the voters of these townships and approved by them as a conditional proposition, and, in order to make the same definite and put it in a form that would render it enforceable, the railroad, some time prior to the election, and in reference thereto, entered into an agreement with the Greensboro Loan & Trust Company, "as trustees for the various townships," among other things, that, if subscriptions should be approved at the approaching election, the bonds should be prepared and left with the trust company. Among other stipulations, on condition:
"First. That the said bonds shall not be delivered to the Greensboro, Northern & Atlantic Railway Company, or any one else for it, unless and until there is constructed by it. or by its successor or successors, or its assigns, so much of its projected or proposed lines of railway as shall constitute and include a line from a point within the city of Greensboro, N. C., in an easterly direction through the county of Guilford, to the Alamance county line, and thence through the county of Alamance to a point necessary to connect, and which does connect, with the Seaboard Air Line Railway Company and the Norfolk & Southern Railway Company's line or lines, or either of them, or with the subsidiary line or lines of said corporations, or either of them.
Second. That in the event the said portions of the lines of railway of the party of the first part is not constructed by it or its successor or successors or assigns within three years from the date of the issuance of said bonds as indicated and set forth in condition first, as above set out and numbered, then in that event it is agreed by the party of the first part that the party of the second part (the Greensboro Loan & Trust Company) shall, and it agrees that if will, in that event, deliver all of said bonds so issued by the county of Alamance for the several townships of said county, to the board of commissioners of Alamance county in order that they may all be destroyed, and it is further agreed by the party of the first part that, in the event of the failure to construct the aforesaid lines of railway within three years from said date of the issuance of said bonds, all rights and equities which the party of the first part may have in said bonds shall cease.
Third. That said bonds shall not be delivered by the party of the second part to the party of the first part, or to any one for it, unless and until the party of the first part, its successor, successors or assigns, construct said lines of railroad as agreed in condition No. 1 (first), as...
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