McDowell v. Rutherford Ry. Const. Co.

• Decision Date: 09 May 1887
• Citation: 96 N.C. 514,2 S.E. 351
• Court: North Carolina Supreme Court
• Parties: McDOWELL v. RUTHERFORD Ry. CONST. Co. and others.

96 N.C. 514

2 S.E. 351

McDOWELL

v.RUTHERFORD Ry. CONST. Co. and others.

Supreme Court of North Carolina.

May 9, 1887.

Appeal from superior court, Rutherford county.

W. P. Bynum and E. C. Smith, for plaintiff.

No counsel contra.

MERRIMON, J.

The defendant, the Rutherford Railway Construction Company, is a corporation organized under and in pursuance of the statute, (Acts 1883, p. 141.) The sections of that statute necessary to an understanding of the opinion of the court provide as follows:

“Sec. 2. That the capital stock of said company may be created by subscription on the part of individuals, municipal or other corporations, in shares of $50 each, which may be in land, timber, work, or money as may be stipulated.”

“Sec. 10. That, after the written request of one-fifth of the qualified voters of the county of Rutherford, the board of commissioners of said county shall cause an election to be held at the several precincts of said county for the purpose of submitting to the qualified voters thereof the question whether the subscription of $50,000 voted by said county on the seventh of August, 1881, to the Rutherford & Spartanburg Railroad, may or may not be transferred and subscribed to the capital stock of the Rutherford Railway Construction Company, and also at the same time the question of subscribing an additional $50,000 to the capital stock of said Rutherford Construction Company.

“Sec. 11. That, if a majority of the qualified voters of Rutherford county at said election shall vote for ‘transfer,’ then the railroad agents for said county, appointed by the commissioners to control the subscription voted to the Rutherford & Spartanburg Railroad on the seventh of August, 1881, shall be authorized to subscribe said $50,000 to the capital stock of the Rutherford Railway Construction Company, and shall pay said subscription to said company in such manner as such agents shall believe to be best to promote and advance the construction and completion of said railroad.

“Sec. 12. And if a majority of the qualified voters of said county at said election, as aforesaid, shall vote for ‘subscription,’ then the said agents aforesaid shall be authorized to subscribe the additional $50,000, thus voted for, to the capital stock of said Rutherford Railway Construction Company in like manner as provided in section 11 of this act.”

Section 13 of the statute provides that the county commissioners may issue bonds of the county named, in the way prescribed, to pay for the capital stock so to be and when subscribed; and section 14 provides that the proper county authorities shall levy a county tax adequate to pay the interest that may accrue upon the bonds so to be issued, and the principal thereof when the same shall come due.

The plaintiff alleges in his complaint, in substance, that the defendants the county commissioners of the county of Rutherford purported and professed, in pursuance of the above statutory provisions, to cause an election to be held in that county, as therein prescribed and allowed, on the second day of August, 1883, to take the sense of the qualified voters of that county upon the proposition to subscribe for it $100,000 to the capital stock of the Rutherford Railway Construction Company in the way and manner prescribed, and they declared the alleged result of such election as follows: “It having been shown to us that at the election held on the second day of August, 1883, upon the subject of a railroad subscription, it was carried for ‘transfer,’ and also for subscription, by a majority of the qualified voters of said county, in accordance with the eleventh section of said act incorporating the Rutherford Railway Construction Company, ratified by the general assembly of North Carolina on the sixth day of February, 1883, it is therefore ordered that the returns of said election be registered.”

The plaintiff further alleges and demands judgment as follows:

“(8) But complainants allege and show that prior to said election the books of registration of qualified voters were not opened at each or any of the election precincts in said county, as the law required, nor were the qualified voters of said county who had not theretofore registered, and those who had become qualified voters since the last registration, allowed an opportunity to register themselves, as by the law they were entitled to; nor at said election were any persons allowed to vote whose names did not appear upon the old registration books had and kept at said election precincts, there having been no registration of voters made or allowed since the election held in November, 1882, for members of the general assembly, and for other purposes.

“(9) Complainants allege and show that, at the time of said railroad election, there were many citizens and residents of said county who were qualified voters and entitled to registration and to vote at said election, and that were deprived of their right and privilege to vote, by the neglect and refusal of the proper officers of the county to order the books of registration to be opened as the law directs in such cases. Further complaining, the plaintiff alleges, from information and belief, that a large majority of those so entitled to register and vote would have voted against ‘transfer’ and against ‘subscription’ at said election, if they had had an opportunity to do so, and whose votes would have changed the result adversely to ‘transfer’ and ‘subscription,’ as declared by said county commissioners.

“(10) Further complaining, the plaintiff alleges and shows that a majority of the qualified voters of said county at said election did not vote for ‘transfer’ and ‘subscription;’ for that the qualified voters in said county exceed three thousand, as the plaintiff is informed and believes, whereas the number that voted for ‘transfer’ was 1,493, and for ‘subscription,’ was 1,225 votes, being a minority of the qualified voters of the county.

“(11) Complainants further show that notwithstanding the fact that no books of registration were opened as aforesaid, and the qualified voters of the county allowed to register and vote in the way provided by the law, and notwithstanding the fact that a majority of the qualified voters of the county did not vote for ‘transfer’ and ‘subscription,’ yet said board of commissioners, in defiance of these facts and the law, proceeded to declare, as aforesaid, that the said election was carried for ‘transfer’ and ‘subscription’ by a majority of the qualified voters of said county.

“(12) That, in further consummation of their illegal purposes, the said board of commissioners did subscribe to the capital stock of the Rutherford Railway Construction Company, in the name of the county of Rutherford, the said fifty thousand dollars theretofore subscribed to the Rutherford & Spartanburg Railroad, and the further sum of fifty thousand dollars voted as aforesaid.

“Further complaining, the plaintiff alleges and shows that the defendant Frank Coxe, a citizen and resident of the county of Polk, was appointed by the board of commissioners the agent of the county, and the said bonds so signed by the chairman, to-wit, bonds to the amount of $100,000, were delivered to him to be paid to the said Rutherford Railway Construction Company as provided in section eleven of said charter.

“Further complaining, the plaintiff alleges and shows that for the payment of the coupons on said bonds now accrued and accruing, for the purpose of creating a sinking fund for the ultimate payment of said bonds, the board of commissioners of Rutherford county are threatening to and are about to levy and collect a special tax upon the persons and taxable property of the plaintiff situate in said county, and upon the taxable property of all other property holders in said county, and that said tax will be levied unless said levy and collection are restrained by the order and decree of this court. Further complaining, the plaintiff alleges and shows that the ‘transfer’ of the subscription of fifty thousand dollars theretofore made to the Rutherford & Spartanburg Railroad Company was illegal and void, in that the election was not held upon the petition in writing of one-fifth of the qualified voters of the county, but a less number, as plaintiff is informed and believes, and because said election was held without a registration of voters as the law requires, whereby a large number of the qualified voters of the county were disfranchised, and not allowed to vote, because their names were not upon the old registration books which were used at said election, and because, also, the said ‘transfer’ of subscription was not carried by a majority vote of the qualified voters of said county. Further complaining, the plaintiff shows that, for the reasons set forth in the foregoing paragraph of complaint, the said election, as to the additional subscription of fifty thousand dollars, was illegal and void, and that the said subscription was not carried by a majority vote of the qualified voters of the county.

“Further complaining, the plaintiff shows that by the first section of the act incorporating the Rutherford Railway Construction Company it is provided- First, that a railroad may be constructed from Rutherfordton, by way of Forest City, to the South Carolina line, in the direction of Spartanburg or Gaffney City, South Carolina; or, secondly, by way of Forest City to Shelby and Whitaker, North Carolina, or to King's Mountain or to Gastonia, North Carolina, by way of Shelby, as may be most practicable. That, disregarding the provisions of the charter, the said Rutherford Railway Construction Company have selected neither of the routes prescribed by the charter, but have located the line of their road by way of Forest City and Shelby, and thence to Black's Station, a point on the Atlanta & Charlotte Air-Line Railroad in South Carolina, and about ten miles distant from Whitaker, and much further from...