Neely v. Yorkville
| Decision Date | 31 July 1878 |
| Citation | 10 S.C. 141 |
| Parties | NEELY v. YORKVILLE. |
| Court | South Carolina Supreme Court |
Where the charter of a municipal corporation did not in express terms confer upon it a corporate name, and, although a name was given to the town itself, all the authority and powers of the corporation were conferred upon the Town Council Held , That an action against the Intendant and Wardens of the Town Council of, & c., was properly brought.
A bond given by a municipal corporation for a debt incurred by it in executing a contract which the corporation had authority by its charter to make is valid and binding.
The Act of 1871 in relation to the town of Yorkville did not create a new corporation and substitute it in the place of the old corporation created by the Act of 1849, but such Act was a mere amendment of the Act of 1849, the corporation remaining liable for debts contracted by it before the Act of 1871 was passed.
A bond given by a municipal corporation, under its corporate seal subscribed by the Intendant of the town, and countersigned by the Clerk and Treasurer of the Council: Held to be in the usual and proper form, and to be binding upon the corporation.
A plea of the Statute of Limitations is inapplicable to an action upon a bond given in June, 1861, by a municipal corporation.
A bond given by a municipal corporation for work done in macadamizing the streets of the corpopation: Held to be valid and binding, and that the consideration might be proved by evidence aliunde .
Where a municipal corporation has authority under its charter to issue bonds to a certain amount, a bond given by it within the limited amount is at least prima facie valid and if the corporation had previously exhausted its authority by issuing other bonds to the full extent of its power, the onus of showing the fact is upon the corporation.
A proviso to an Act authorizing a municipal corporation to issue bonds to a certain amount, that the private property of the citizens should not be liable for the payment of the bonds except by a regular and uniform taxation, was simply intended to protect the private property of the corporators from liability for the payment of the bonds, and not to preclude the holders thereof from obtaining judgment against the corporation.
A clause in the charter of a municipal corporation, granted in 1849, giving the corporation the same powers over the streets and roads of the town as those vested in the then Commissioners of Roads, did not prevent the corporation from issuing its bond for a debt contracted by it in improving the streets of the town.
BEFORE MACKEY, J., AT YORK, APRIL TERM, 1876.
This was an action entitled Eliza A. Neely, plaintiff, against William H. McCorkle, Intendant, and John R. Schorb, Joseph Herndon, Robert Wright and Edward Wheeler, Wardens, the " Town Council of Yorkville, in the State of South Carolina," defendants.
The complaint alleged that by an Act of this State, passed December 20th, 1853, entitled " An Act to give the Town Council of Yorkville the power to issue bonds of the corporation, and for other purposes," power was conferred on the Intendant and Wardens of said corporation " to issue interest-bearing bonds, which shall be binding on said corporation," to the amount of $5,000 that by an Act passed December 21st, 1854, the said Act of December 20th, 1853, was extended and made of force for the period of nine years from the said December 21st, 1854; that by the 19th Section of " An Act to incorporate certain towns and villages, and to renew and amend certain charters heretofore granted," passed January 28th, 1860, power was conferred on the Town Council of Yorkville to make contracts for lighting the streets of said town with gas, either by subscribing to the stock of any partnership or corporation organized for said purpose or otherwise, and to make payment for the same out of any moneys belonging to the corporation; " that the Town Council of Yorkville made a contract with George Waterhouse and Michael Bowes for lighting the streets of said town with gas, and agreed to pay them therefor the sum of $600; that said contract was made by said Town Council by virtue of their power and authority as such Town Council, under the Acts above mentioned, and also by virtue of their general power and authority as such Town Council; and that on the fourth day of June, 1861, they evidenced their indebtedness to the said Waterhouse and Bowes by executing and delivering to them a bond for $600, a copy of which is as follows:
SOUTH CAROLINA, YORK DISTRICT.
Know all men by these presents that the " Town Council of Yorkville," in the State aforesaid, acknowledges itself to owe unto George B. Waterhouse and Michael Bowes the sum of six hundred dollars, to be paid to the said Waterhouse and Bowes, or bearer, on the first day of January, 1862, together with interest thereon from the first day of May, 1861.
This bond is issued in pursuance of powers vested in said Town Council to make contracts for lighting the streets of said town of Yorkville with gas; and it is intended, acknowledged and delivered as the bond of said " Town Council of Yorkville" for six hundred dollars, due to said Waterhouse and Bowes for lamp posts and fixtures, used as aforesaid, for lighting the streets of the said town. In witness whereof, the said Town Council has caused its corporate seal to be hereunto affixed, and these presents to be subscribed by the Intendant of said town of Yorkville, and countersigned by the Clerk and Treasurer of said Council. June 4th, 1861.
[CORPORATE SEAL.]
A. I. BARRON, Intendant.
J. B. ALLISON, Clerk and Treasurer.
That payments were made on said bond in 1863, 1867 and 1868; that there is still due on said bond, with interest from May, 1861, the sum of $600; that the plaintiff is the lawful and innocent holder and owner of said bond, and that the defendants above named now compose the Town Council of Yorkville.
The answer denied that the Town Council of Yorkville ever lawfully executed the bond, or that they were ever authorized to execute any such bond, and alleged that before the bond sued on was given the Town Council of Yorkville had exhausted its power under the Act of December 20th, 1853, by issuing bonds to the amount of $5,000. It denied that defendants were indebted or responsible in any way for the claim sued on, pleaded that the claim was barred by the Statute of Limitations, and concluded by denying each and every allegation of the complaint.
At the trial defendants gave testimony tending to show that at the date of the alleged bond A. S. Barron was Intendant, and J. B. Allison, Clerk and Treasurer, of the Town Council of Yorkville; that the signatures to said bond and the seal of the Council were genuine; that the bond was drawn by the attorney of the Council; that the lamp posts and fixtures were erected and the town lighted with gas; and it was admitted that the plaintiff was the lawful holder and owner of the bond.
The defendants moved for a nonsuit on the ground that no cause of action had been established against them; that a judgment, if obtained under the pleadings, would operate against the defendants individually, and that the town of Yorkville was not a party to the action.
His Honor overruled the motion, and the defendants excepted.
The defendants then produced in evidence the books of the corporation for the purpose of showing what number of bonds had been issued under the Act of 20th December, 1853, and the amounts thereof, and also examined witnesses for the purpose of proving the same matters.
The judgment of His Honor the Circuit Judge is as follows:
This is an action brought for the recovery of a balance due on a bond executed by the corporate authorities of the town of Yorkville, S. C., to George P. Waterhouse and Michael Bowes for lamp posts and fixtures used in lighting the streets of Yorkville with gas. The plaintiff is the innocent purchaser and holder of the bond. By an Act of the Legislature, passed in 1860, (see page 920, § 19,) the Town Council are authorized to make contracts for lighting the streets of the town with gas, either by subscribing to the stock of any partnership or corporation organized for said purpose or otherwise . The bond was executed on the 4th of June, 1861, and in the body of the instrument it is recited that " this bond is issued in pursuance of power vested in said Town Council to make contracts for lighting the streets of said town of Yorkville with gas, and is intended, acknowledged and delivered as the bond of said Town Council of Yorkville for six hundred dollars, due to said Waterhouse & Bowes for lamp posts and fixtures used as aforesaid for lighting the streets of said town."
In addition to the authority conferred by the special Act of the Legislature above referred to, the execution of the bond comes within the scope of the general corporate authority of the Council, and especially within the powers conferred by the fourth Section of the charter.-See Act 1849, Vol. II, p. 588.
The Council had the power and the right to make the contract with Waterhouse & Bowes, and to evidence the indebtedness arising therefrom by executing the bond upon which this action is brought.
It is, therefore, ordered and decreed that the plaintiff have judgment for the sum of ten hundred and forty-one dollars and eighty-five cents, with interest thereon from the second day of April, 1876, and costs.
The defendants appealed, and now moved this Court to dismiss the complaint on the grounds that the Court erred:
1. In refusing to grant the nonsuit asked for and holding that the present proceeding is a proper one in a suit upon the bond.
2. In refusing to hold that the testimony was sufficient to show that...
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