Red River Furnace Co. v. Tennessee Cent. R. Co.

• Decision Date: 09 June 1905
• Citation: 87 S.W. 1016,113 Tenn. 697
• Parties: RED RIVER FURNACE CO. et al. v. TENNESSEE CENT. R. CO. et al.
• Court: Tennessee Supreme Court

87 S.W. 1016

113 Tenn. 697

RED RIVER FURNACE CO. et al. v. TENNESSEE CENT. R. CO. et al.

Supreme Court of Tennessee.

June 9, 1905

Appeal from Chancery Court, Montgomery County; J. W. Stout Chancellor.

Bill by the Red River Furnace Company and others against the Tennessee Central Railroad Company and the city of Clarksville. From a decree sustaining a demurrer to the bill reversed by the Court of Chancery Appeals, defendants appeal. Reversed.

Jno. A Pitts, W. D. Witherspoon, and Gholson, Lyle & Peay, for appellant Tennessee Cent. R. Co. Dancey Fort and Leech & Ponder, for appellant city of Clarksville. Mich'l Savage and Daniel & Daniel, for appellees.

BEARD C.J.

The present bill was filed by taxpayers of the city of Clarksville, in Montgomery county of this state, impeaching a subscription of $100,000 made by that city to the capital stock of the Nashville & Clarksville Railroad Company, which afterwards, by an act of the Legislature, had its corporate name changed to the Tennessee Central Railroad Company, and asking that the city of Clarksville be enjoined from issuing its bonds in payment of this subscription. Demurrers were interposed by the two defendants, challenging the legal sufficiency of all the grounds upon which complainants asked relief. Upon the hearing of the cause on demurrer, a decree was pronounced by the chancellor dismissing the bill on the ground that chapter 276, p. 796, of the Session Acts of the Legislature of 1903, had cured all the irregularities complained of therein. Upon appeal this decree was reversed by the Court of Chancery Appeals, and the case is now before us for review.

It appears from the recitals of the original bill and the amendments thereto that the Nashville & Clarksville Railroad Company, a corporation organized and existing under the laws of Tennessee, on the 21st day of June, 1901, addressed a written communication to the mayor of the city of Clarksville, in which it was stated that this company proposed "to construct a standard-gauge steam railroad from a point within the corporate limits, connecting with the tracks of the Tennessee Central R. R. or those of the Nashville Terminal Co., and crossing the Cumberland river *** in a northwest direction, to a point in the county of Montgomery, Tennessee, at a line between the states of Tennessee and Kentucky," and asking a subscription to its capital stock by the city of Clarksville in the sum of $100.000, upon certain conditions, of which those material to this litigation may be summarized as follows:

First. That the construction of the line of railroad should be commenced at Nashville within 6 months, and completed to Clarksville within 24 months, from date of subscription.

Second. That no part of the subscription should become due and payable until the railroad was constructed and put in operation within the period of time stipulated as above, and substantially on the line as shown on the plan or map attached to the communication, and when this was done the subscription should become due and payable.

Third. Payment for the stock subscription of the city to be made at the option of the city "in cash or in its twenty year Coupon Bonds, bearing interest at not less than four per cent. per annum, payable semiannually."

A meeting of the board of mayor and aldermen of the city of Clarksville was held on the 5th day of July, 1901, at which this communication was submitted, and thereupon a resolution was adopted declaring it to be sense of the board "that an election should be held by the qualified voters of the city of Clarksville to determine whether or not the city, in its corporate capacity, shall make the subscription asked for by the Nashville & Clarksville Railroad, in the amount and upon the terms and conditions set forth in the application," and fixing the 8th day of August, 1901, as the date of the election, which should "be held according to the laws of the state regarding elections, by the duly qualified election officers, who thereafter should make the returns, showing the votes cast for, and those against subscription."

On the 6th of July, 1901, the commissioners of registration of Montgomery county gave the statutory notice that on the 8th day of August, 1901, an election would be held at two voting places named in the notice between the hours of 9 a. m. and 4 p. m., at which the qualified voters of the city of Clarksville should vote in order to determine whether or not the city of Clarksville should make a subscription to the capital-stock of the Nashville & Clarksville Railroad Company, upon the terms and conditions of the application or proposition submitted by the railroad company to the municipal authorities, which application or proposition was by the commissioners appended to the election notice.

The election thus ordered was held on the day appointed, and in due time a return of the same was made by the commissioners of registration to the board of mayor and aldermen, of that city, in which they reported that at this election held "in accordance with the law as found in chapter 3, p. 57, of the Acts of the Legislature of 1887, and by resolution of the board, there was cast a total of 904 votes of the qualified voters of the city of Clarksville, of which total 681 votes were for, and 223 were against, the subscription." They further reported that, in addition to this total 88 votes were cast which "were rejected and thrown out by the judges of the election as illegal."

On the 15th of August, 1901, at a meeting of the board of mayor and aldermen of that city, this report of the commissioners was submitted and was approved, and in consideration of the fact that it appeared to the board that the election was fair, and that more than three-fourths of the votes cast were in favor of subscription, it was therefore resolved that the "mayor of Clarksville be, and he is hereby, authorized and directed, in the name and for and on behalf of the municipality, *** to formally subscribe for one hundred thousand dollars of the capital stock of the Nashville & Clarksville Railroad Company, upon the terms and conditions of the proposition submitted," and hereinbefore set out.

This formal act of subscription was done by the mayor on the 15th day of April, 1902.

The original bill and the amendments thereto charge various irregularities as of an invalidating character in the holding of this election. The principal grounds of assault are:

(1) That the termini of the railroad to be constructed were not sufficiently definite.

(2) That the line of the contemplated railroad was not located in the application with sufficient certainty.

(3) That the city of Clarksville lacks power to make the subscription.

(4) That the election was ordered by resolution, when it should have been by ordinance.

(5) That, in giving the public notice calling the election, the commissioners styled themselves "commissioners of election."

(6) That the election was void because held at only two voting precincts, when there were ten wards in the city.

(7) That there were 88 ballots cast which the officers of the election rejected without giving any reason therefore.

(8) That the ballots were not in proper form.

(9) That certain persons (naming them, 15 in number) voted in the election, "For Subscription," about one-half of whom were disqualified by reason of their conviction of infamous crimes, and the remainder had been bribed by the railroad company to vote for subscription.

In addition, it is charged that the railroad had not been completed within the period of time fixed in the application or proposition, and that chapter 276, p. 796, of the Acts of 1903, ratifying and approving the subscription, was unconstitutional and void.

An examination of the record satisfies us that the first three of these grounds are without merit, and they are thus disposed of without discussion. This is equally true so far as the fifth ground is concerned, as it is apparent that the use of the word "election" instead of "registration" by the commissioners of registration in their public notice advertising the election was a clerical error, which was not misleading. As to the sixth ground, we do not understand the original bill to affirm that there were ten voting places in Clarksville--one in each ward--and that the election was held only in two of these wards, and therefore was invalid, but rather that the city was divided into ten wards, and the election was held at two voting precincts; one being the police station, and the other the courthouse. Certainly the pleader did not understand himself so to allege, for in one of the amendments to the bill it is distinctly averred that there were three voting places in the city, and the polls were opened at only two of these. But it is nowhere alleged that any voter was deprived of his right of suffrage by such omission, or that detriment was worked to any one thereby. With regard to this irregularity, and those other irregularities embraced in the fourth, seventh, and eighth grounds set out above, we are satisfied that if chapter 276, p. 796, of the Acts of 1903, is constitutional, they have been condoned by the Legislature, and cannot now be the basis of complaint. For it is well settled that under our Constitution there may be special legislation as to municipal communities, from which it necessarily follows that the Legislature, as to such communities, may ratify and approve what has been irregularly done by them, if it could have authorized in the beginning the thing to have been done at all.

But speaking to the ninth ground, we are not prepared to hold that an election carried by a corrupt use of money, or by the votes of person rendered infamous by judgments of courts of competent...