Ravenswood v. Town Of Ravenswood.

• Decision Date: 25 March 1896
• Citation: 41 W.Va. 732
• Court: West Virginia Supreme Court
• Parties: Ravenswood, S. & G. R'y Co. v. Town of Ravenswood.

41 W.Va. 732

Ravenswood, S. & G. R'y Co.

v.Town of Ravenswood.

Supreme Court of Appeals of West Virginia.

Submitted January 9, 1896

Decided March 25, 1896.

1. Railroad Companies Municipal Aid Bonds Consideration of Stock Subscription.

If, at the time a proposition to subscribe to the stock of a proposed railroad is submitted to the voters of a small municipal corporation, the route of such road is loeated through the corporate limits of such municipality, in the absence of proof to the contrary such location will be presumed to be a part of such prop sition; and if, after the vote is taken, such location is materially changed to a route entirely beyond the limits of such municipality, the right to demand the issuance of the bonds authorized by such vote will be presumed to have been abandoned, even though the authorities of such road should, by leave, obtain the privilege of running trains over the track of another road in full operation, and extending through such municipality on a different route and in a different direction.

2, Railroad Companies Municipal Aid Bonds Mandamus. Under such circumstances, a mandamus will not lie to compel the municipal authorities to issue such bonds,

V. 13. Archer for plaintiff in error, cited Code, c. 54, ss.

57, 58; Code, c. 39, s. 24; 31 W. Ya. 781; 128 U. S. 102; Merrill, Maud. § 111; 45 Ala. 696; 127 U. S. 105; 51 111.

191; 44 Kan. 676; 92 U. S. 631, 634; 31 Pa. St. 174; 7 Cal. 419; 17 Ind. 318.

Rorert F. Fleming, Nathaniel C. Prickitt and Wm. A. Parsons for defendant in error:

Statutes. Code, c. 54, ss. 57, 58; Code, c. 39, s. 24; Code, append. 1019; Code, c. 109, s. 2.

Pleading. 28 W. Va. 158; Hogg's Pleading & Forms, 496, Form No. 236; 14 W. Va. 55, 63; 14 Am. & Eng. Enc. Law, 220; 40 111 126; 17 W. Va. 595, 612, 613.

Merits. 2 High, Inj. (2nd Ed.) ss. 1289, 1290; 31 W. Va. 781 (8 S. E. R. 552-7); 4 Fed. Rep. 378; 47 Fed. Rep. 282; 15 Neb. 262; 4 Ga. 115; 16 Neb., 217; 15 Am. & Eng. Enc. Law, 1259, n. 2, 1260, 1292, 1.272-3, 1886; 37 Cal. 354; 7 W. Va. 501-3; 22 Howard, 364; 86 Va. 158 (9 S. E. R. 999); 2 Wood, 584 (Fed. Cas. No. 2, 686); 25 Am. & Eng. Enc. Law, 951-2; 20 S. E. R. 921.

Dent, Judge:

On the petition of the Ravenswood, Spencer & Glenville Railway Company, the Circuit Court of Jackson county issued a mandamus nisi against the town of Ravenswood et al., requiring them to appear and show cause, if any, why the authorities of said town should not be required to issue three thousand dollars of bonds'of said town in payment of subscription to the capital stock of the petitioner, authorized by the voters of said town at an election held therein for that purpose on the second Tuesday in July, 1889.

The defendant appeared, and demurred to the said petition and writ. The demurrer having been overruled as a return thereto, they filed their separate answers. To these the plaintiff demurred, but the court overruled the demurrer; and, the plaintiff not pleading or replying to the answers, the court heard the case on the papers filed, orders had, and oral testimony, and entered a final order refusing the relief prayed, quashing the writ, and dismissing the petition. From this order a writ of error and supersedeas was awarded, and the plaintiff now here insists that the circuit court, in refusing the relief prayed, erred.

The answer of the town, by its officers, with great prolixity and at length denies everything set out in the alternative writ and petition, but from its numerous allegations the following is gleaned to be the real reason why the bonds were not issued, to wit: That the vote was taken and the bonds were authorized to be issued by the voters of the town of Ravenswood, a small town situated on the Ohio river and Ohio River Railroad, containing about nine hundred inhabitants, with the understanding that the plaintiff's road would be built as then located through the corporate limits of said town, and that, after the vote was taken, the location was changed so as to throw the line without and several hundred feet to the south of the corporate limits.

To such allegation the plaintiff makes no reply or plea, but, in its evidence taken at the hearing, admits the change of location, but seeks to avoid its effect by showing that from the point where its road intersected with that of the Ohio River Railroad Company, it made traffic arrangements with the latter company for the period often years by which it was to use the latter company's tracks to reach and enter the corporation of Ravenswood, and also use its depots and terminal facilities therein, and insists that this is substantial compliance with all necessary conditions existing at the time the vote was taken.

There are numerous questions raised, but this presents the real gist of this litigation, the determination of which must settle this controversy. In the case of Banet v. Railroad Co., 13 111. 504, it is held: "A subscriber to railroad stock will be held liable^to the payment of bis subscription although the legislature may have authorized, and the directors of the company may have adopted, a change of route from the first fixed by law, provided the change does not make an improvement of a different character, and his interest is not materially affected by the alteration." And in the case of Sprague v. Railroad Co., 19 111. 177, in approval of the foregoing decision, it is said: "In determining the question as to how far the original purposes of a corporation may be departed from after subscriptions have been made to its stock without violating the rights of the stockholders individually, we must first consider with what intention and in view of what advantage the law must presume such subscriptions are made. As is clearly manifest from the decision of the case above referred to, the conclusive presumption is that it was with a view to the profits to be derived from the stocks thus subscribed as an investment, and not in reference to any incidental advantages which may accrue to the stockholders by reason of the construction of the improvement, in consequence of any anticipated enhancement of any other property which the stockholders may own, or otherwise." Railroad Co. v. Zimmer, 20 111. 654; Railroad Co. v. Earp, 21 111. 291; People v. Holden, 82 111. 93. These cases (and many others in support thereof might be cited) establish the rule that a subscriber to...