Ruohs v. Town of Athens

• Decision Date: 01 September 1891
• Citation: 18 S.W. 400
• Parties: RUOHS <I>v.</I> TOWN OF ATHENS.
• Court: Tennessee Supreme Court

18 S.W. 400

RUOHS

v. TOWN OF ATHENS.

Supreme Court of Tennessee.

September Term, 1891.

Appeal from chancery court, Knox county; HENRY R. GIBSON, Chancellor.

Action by Joseph Ruohs against the town of Athens upon certain bonds issued by defendant. Defendant obtained a decree and complainant appeals. Affirmed.

De Witt, Thomas & De Witt, Pritchard, Sizer & Thomas, and Mr. Harbison, for appellant. P. B. Mayfield, Burkett & Mansfield, and Turley, Gaston & Roberson, for appellee.

SNODGRASS, J.

Complainant brings this suit to recover of defendant, alleged to be an incorporated town of this state, the amount now due him upon certain interest-bearing bonds issued by defendant on 1st October, 1888. There were 22 of these bonds, of the denomination of $1,000 each, payable to bearer October 1, 1908, with interest at 6 per cent., payable semiannually, evidenced by coupons attached. They were issued to the Nashville & Tellico Railroad Company, in consideration for stock subscribed by defendant. The bonds were purchased by complainant, who is a bona fide holder; and they were regularly issued, and under proper legislative authority, and are valid and binding obligations of defendant, if defendant is a legally incorporated city, or if, as between itself and complainant, it cannot rely on the defense of non-corporate existence now interposed.

At the time of the issuance of said bonds, and for some years prior thereto, it was acting as a corporation. As such it issued the bonds through its proper officers, and under its corporate seal, with such recitations as were proper, and showed the legality of the bonds in case they were issued by the corporation, duly organized. It did assume a legal existence as a municipal corporation, and legal power as such to issue the bonds. Legislative power thus assumed existed to issue the bonds, if it were a corporation; and the first question is, was it a corporation legally as well as in fact organized? It appears that the town of Athens was originally incorporated by the county court of McMinn county, in the year 1860, under Code, § 1349 et seq., but that that organization of the corporation was superseded by the organization of the town as a municipal corporation, under Act 1869-70, c. 69, § 39 et seq., p. 500 et seq.; that the act of 1869-70 was repealed by the act of 1879, c. 255, p. 296, and said repeal was accepted and acquiesced in; that the town was without municipal organization or government until June or July, 1881, when an attempt was made to organize said town into a municipal corporation, under the act of March 26, 1877, (Act 1877, c. 121, amending Act 1875, c. 92,) which attempt was void, because the certificate of the sheriff holding the election was not indorsed on the application, and registered with it, as required by section 8 of the act of 1877, c. 121. This was the defense set up by defendants the last board of mayor and aldermen of the town, averring in consequence that all acts under such attempted incorporation were void, together with further plea that they had resigned, and their resignations had been accepted, before the filing of complainant's bill. We state the above facts respecting the incorporation and repeals, and effort to reorganize and failure, because, without elaborating the propositions or debating the questions involved in the statement, we hold them to be settled, as stated, and time forbids that we should attempt the detailed answer to the able and elaborate arguments of complainant's counsel to the contrary which these arguments so well merit. It is sufficient to say that it has been settled that the act of 1879 repealed the charter of 1870, and this did not revive the incorporation of 1860. Burk v. State, 5 Lea, 349. It is said this case should not be followed; that it was upon an agreed statement of facts; and, even if correct thereon, is erroneous on the real facts. It does not appear to be an agreed statement of facts, and we cannot look outside the opinion to determine that question. What appears in an opinion is the matter submitted to the court and agreed to in consultation, and not...