State ex rel. Brown v. Chester & L.N.G.R. Co.
| Decision Date | 25 March 1880 |
| Docket Number | CASE 848. |
| Parties | THE STATE, EX RELATIONE BROWN, v. C. & L. R. R. CO. |
| Court | South Carolina Supreme Court |
1. A judgment upon the merits dismissing an action brought by certain taxpayers of a county against the county commissioners to enjoin the issue by them of certain railroad aid bonds, is an estoppel to a subsequent action after the bonds have been issued, brought in the name of the state upon the relation of certain other taxpayers of the same county against the county commissioners, the railroad company and purchasers of the bonds, to have the bonds adjudged illegal and void.
2. A county having issued certain railroad aid bonds after a decree of the court had determined that the county had the power to do so, all persons purchasing such bonds become privies to the decree, and may rely upon its estoppels. Gelpcke v. City of Dubuque , 1 Wall. 175, referred to.
3. A statement in State, ex rel. Harris , v Robertson, county treasurer , MS. Dec., Nov., 1877 explained; and the dissenting opinion in Glenn v County Commissioners , 6 S. C. 412, approved.
4. In our state constitution there is no restriction which deprives the legislature of the power to authorize counties to incur obligations and issue bonds for their payment.
Before PRESSLEY, J., York, March, 1879.
For a proper understanding of this case, it will be well to read the case of Glenn v. County Commissioners of York , 6 S. C. 412. In that case, Glenn and others, taxpayers of the county of York, brought their action against the county commissioners of York, to enjoin the issue of $100,000 in county bonds to pay for a subscription made by the commissioners for the county to the Chester and Lenoir Narrow Guage Railroad Company, without any vote by the people. The defendants there admitted the subscription, and that the bonds were about to be issued, but claimed the power to make such subscription and issue such bonds under Section 11 of the act incorporating such railroad company, (15 Stat. 395,) which reads as follows:
The Circuit judge held that the commissioners had the power to subscribe and to issue bonds, and dismissed the complaint, with costs. The plaintiffs appealed, and in 1874 the appeal was dismissed by a majority of the court, but no opinion filed, and Willard, A. J., dissenting.
The present case was instituted in April, 1878, in the name of the State of South Carolina upon the relation of F. H. Brown and sixteen others, taxpayers of York county, against the Chester and Lenoir Railroad Company, the county of York, the commissioners of York county and several other defendants, then owning or holding bonds of the county of York, issued by the commissioners of York county to pay for subscription of that county to the capital stock of the Chester and Lenoir Railroad Company. The complaint alleged that there was no authority for the subscription or the issue of bonds, and that they were null and void; and it prayed that the bonds might be adjudged illegal and void, and the defendants required to deliver them up for cancellation. The defendants, in their several answers, claimed that the bonds were legal, and protected by the decision in the former case. There were other issues involved, but they were suspended to await the single question, are the bonds valid? Trial was had on the pleadings in this case, and the record in Glenn v. County Commissioners. From the pleadings here it appeared that all of the bonds in existence had passed out of the hands of the county of York, and also of the railroad company, and were held by purchasers for value, and as collateral security for an obligation of the company.
The Circuit decree is as follows:
This case was heard by me on the pleadings, which, together with the acts of the legislature and the case of Glenn and others, hereafter referred to, sufficiently show the facts and issues involved. I have always regarded the said case of Glenn et al. v. County Commissioners, as a final decision of the whole matter now involved. The Circuit judge certainly decided it upon its merits, and the motion to reverse his judgment was dismissed by the majority of the appeal court, from which Willard, A. J., dissented, and, assuming that the action of the majority confirmed the construction of the statute made by the Circuit judge, he fully states the reasons for his dissent.
In my opinion the terms of the act clearly fall within the class of cases of which the word " or" is construed to mean " and." Any other construction would make it confer power either upon the " people" or upon the proper " authorities" to make the subscription in question. But " the people" could not possibly exercise such a power without the concurrence of " the proper authorities," unless some other agency were expressly provided for that purpose. No such agency was provided in this case. It is therefore plain that the act intended that the people and the proper authorities should not act in the alternative, but that both should act in concurrence.
Since the case of Glenn et al. v. County Commissioners was decided, matters have transpired of which courts are bound to take notice, and which change very materially the aspect of the case. Three general elections have taken place, at which the people of York county, if the majority had so desired, might have elected county commissioners who would have surrendered, or offered to surrender to the railroad company the stock which had been issued to the county in exchange for the bonds which are again called in question. But no such action was taken, and the commissioners still hold the said stock as the property of the county, and do not in their answer even now offer to surrender it. The act prescribes no special mode by which the proper authorities were to ascertain the sense of the people. And it is now too late to do that by a vote; the road has been built through the county and is in daily operation; the people who are enjoying its conveniences and advantages may now very willingly vote to be freed from a tax to pay for it, and that without any danger of being thereby deprived of its benefits; their wishes in the matter at this time is not a question material to the proper decision of this case; the true issue is, whether or not the majority approved of the subscription at the time it was made; that could not be settled satisfactorily either by a vote now, or by the testimony of any number of witnesses, merely stating their opinion that the people would have voted for or against the said subscription; what they have done or failed to do at the general elections heretofore held, is the only test now proper.
I therefore hold that their long acquiescence has ratified the action of their county commissioners.
Further, as no clause of our state constitution prohibits the legislature from authorizing " the proper authorities of counties or of towns" to make such subscriptions, even without any vote or other concurrence by the people, it could have conferred that power in the said act if it so willed. Not having previously conferred it, such subscription made in excess of authority, or even without authority, might thereafter be ratified by the legislature. If so, then the act of March 5th, 1875, which authorizes a special tax in York county to retire the bonds which had been so issued, is a clear recognition of their validity, and, consequently, cures all excess of authority by the commissioners.
I cannot assume that the said act was passed by the legislature without its having had full knowledge of all the facts of the case. The appeal court had previously rendered its decision in the said case of Glenn et al. v. County Commissioners; and in that case the excess of authority by the said commissioners was fully and plainly set forth and discussed. It was matter of public notoriety, freely discussed everywhere in the state, and must have been well known not only to the members of the legislature from York county, but to the assembly generally. Besides, it was the duty of the legislature, before passing such an act, to inquire strictly into the facts of the case. And in the absence of all proof to the contrary, I am bound to presume that such duty was properly performed. Other matters subsequently to the said act, all concur to show acquiescence by the people, and further confirmation by the legislature. Even the act of 1878, which suspends for a year the said act of 1875, makes it manifest that until such suspension the commissioners had been collecting the tax which the said act of 1875 authorized; and after such suspension, the tax act of 1875 still permitted the levy of a tax to pay the coupons on the bonds in question. Whatever, therefore, may be the force of the decision in the said case of Glenn and others, I hold that, without it, matters have since transpired, which, taken altogether, clearly establish the validity of the said bonds. And I consequently adjudge and deem that the complaint in this case be dismissed, with...
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