Redd v. Henry County Sup'rs

• Decision Date: 03 April 1879
• Citation: 72 Va. 695
• Court: Virginia Supreme Court
• Parties: REDD & als. v. THE SUPERVISORS OF HENRY COUNTY.

72 Va. 695

REDD & als. v. THE SUPERVISORS OF HENRY COUNTY.

Supreme Court of Appeals of Virginia.

April 3, 1879

1. Though the act of January 15th, 1875, Sess. Acts 1874, ch 37, p. 29, provides a mode by which the qualified voters of a county or corporation may contest the due returns of the election or decision of the voters of said county or corporation upon the question whether the county or corporation shall subscribe to the stock of an internal improvement company, a court of equity still has jurisdiction of the question upon a bill filed by fifteen or more of the citizens and tax-payers of the county or corporation, and to enjoin the issue of the bonds of said county or corporation in payment of said subscription if the proceeding has not been properly conducted.

2. In the proceeding under the statute, Code of 1873, ch. 61, §§ 62, 63, 64, 65, in relation to subscriptions by a county or corporation to the stock of an internal improvement company the provisions of the law must be strictly pursued; but a literal compliance in every particular, however unessential is not required. Substantial compliance with the law in every essential feature is all that is necessary.

3. The failure to comply strictly with the provisions of the statute which are not mandatory, but merely directory, will not vitiate the proceedings, so as to render the subscription invalid.

4. Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.

5. The order of the county court directing the sense of the qualified voters to be taken directs the election to be held by the commissioners of election in conformity to law. Though the order does not expressly require the sheriff to act, so far as the agency of the sheriff was rendered necessary by the law, although not named in the order, he was within its operation.

6. It was not necessary, under the statute, that the commissioners of election should be designated by name in the order, as there were already commissioners legally appointed. They were appointed at the May term of the court, and though the statute directs they shall be appointed at the April term, this provision of the statute is clearly directory.

7. For other questions in relation to the appointment of the board of commissioners to examine the return, and the time when the commissioners of election shall make their returns, see the opinion of Burks, J.

8. The commissioners of election are the body to compute and ascertain the number of registered voters in the county, the number of votes cast at the election, the number voting for and the number voting against subscription. In ascertaining and reporting the number of registered voters in the county they are to be guided and controlled by the registration books. But where the register had noted on the book the death or removal of a person registered, it was proper to omit his name from the count.

9. It was for the supervisors to fix the amount of the subscription to the stock, not exceeding the sum limited by the statute.

10. The supervisors of the county having resolved to subscribe the sum of $100,000 on condition that the town of D subscribed $50,000, that subscription cannot subsequently be rescinded by them; and a resolution by them to this effect was invalid. And the town of D having made the subscription of $50,000, the supervisors may carry out their subscription of $100,000, and direct the issue of the bonds of the county therefore in the mode prescribed by the statute.

11. It was not necessary that the order of the court directing the vote upon the subscription should state that the amount to be subscribed will not require an annual tax in excess of twenty cents, or that it is not more than one-fifth the capital stock of the company.

12. There being no evidence in the record that the subscription will require a tax in excess of twenty cents on the $100 of the taxable property of the county, and no such question made in the pleadings, the court cannot look outside of the record to take notice of the auditor's reports, and the assessor's books, to ascertain the amount of taxable property in the county.

13. The legislature may, by a subsequent act, legalize the proceedings, if they were irregular, and so confirm the subscription.

This was a bill in equity in the circuit court of the county of Henry, brought by James S. Redd and fifteen other citizens and tax-payers of Henry county, to enjoin the supervisors of the said county from issuing the county bonds for $100,000, for payment of the county subscription to the stock of the Danville and New River Narrow-Gauge railroad company. This was a company incorporated by an act of the general assembly of Virginia, approved March 29th, 1873. The provisions of the charter as to the powers of the company, and the authority of counties through which the road was to run to subscribe to its stock, are set out in the opinion of Judge Burks. The plaintiffs in their bill set out many objections to the proceedings of the court in directing the vote of the people to be taken whether the subscription should be made, to the action of the officers taking and counting the vote, and to the conduct of the supervisors in relation to the subscription. These are also stated in the opinion of Judge Burks.

The supervisors answered the bill, controverting the objections made by the plaintiffs. And the cause coming on to be heard on the 23d of October, 1868, the court dissolved the injunction and dismissed the bill, with costs. And thereupon the plaintiffs obtained an appeal to this court.

J. B. Young and J. A. Early, for the appellants.

James Alfred Jones, for the appellees.

BURKS J.

The jurisdiction of a court of equity in a case like the present, unless it has been taken away by statute, is too well established to admit of dispute. Bull & others v. Read & others, 13 Gratt. 78; Goddin v. Crump, 8 Leigh 120; Jones on Railroad Securities, § 268; 2 Dillon on Municipal Corporations, §§ 731, 732, 733, 734, 737, and cases cited in the two last-named works. It is insisted, however, by the learned counsel for the appellees that the equitable remedy has been superseded in this state by act of the legislature approved January 15, 1875. That act provides a remedy for contests, and a determination thereof, in elections held to take the sense of qualified voters on subscriptions to stock of internal improvement companies, and may be found in the Acts of Assembly for 1874-75, ch. 37, p. 29.

" In modern times," says Mr. Justice Story, " courts of law frequently interfere, and grant a remedy under circumstances in which it would certainly have been denied in earlier periods. And sometimes the legislature, by express enactments, has conferred on courts of law the same remedial faculty which belongs to courts of equity. Now, in neither case, if courts of equity originally obtained and exercised jurisdiction, is that jurisdiction overturned or impaired by this change of the authority at law in regard to legislative enactments; for, unless there are prohibitory or restrictive words used, the uniform interpretation is that they confer concurrent and not exclusive remedial authority." 1 Story's Eq. Juris. § 80. It is an established principle of a court of equity never to abandon a jurisdiction which it has once assumed. Express statutory enactment can alone take away any part of the original jurisdiction of the court. Kerr's Injunctions in Equity, 6. See, also, Wayland v. Tucker & others, 4 Gratt. 267.

There are no prohibitory or restrictive words in the act referred to, and there would seem to be nothing in the nature of the act or the language employed to indicate an intent to make the new remedy thereby provided exclusive; and this opinion will proceed on the assumption that the equitable remedy exists.

The Danville and New River Railroad Company was incorporated by an act of the legislature approved March 29th, 1873 (Acts of 1872-3, ch. 286), and invested with all the powers, rights and privileges necessary and proper to locate, construct and maintain a railroad, to be known as the Danville and New River Narrow-Gauge railroad, to begin at or near Danville, in the county of Pittsylvania; thence by Martinsville, in Henry county; Patrick Courthouse; Hillsville, in Carroll county, to some point on the Atlantic, Mississippi and Ohio railroad not east of Christiansburg. The act provides for the temporary organization of the company, and, among other provisions, contains the following: " Any county or incorporated town or city along the line of said road, or any of its connecting branches, is hereby authorized, in the manner and under the rules and regulations prescribed by law, to subscribe to the capital stock of said company; and to this end it shall be the duty of the county courts of such counties, or the hustings court of such town or city, in their discretion, to cause a vote of the qualified voters to be taken in the manner prescribed by law, at such time as the president and directors of the Danville and New River Narrow-Gauge railroad company may ask, and to issue bonds in such form, running such lengths of time, and bearing such rates of interest, and payable at such periods and places, as such courts may determine."

After the temporary organization of the company, authorized by the charter, had been effected, the...