The Chicago v. The Board of Comm'rs of Stafford County

• Decision Date: 07 January 1887
• Citation: 12 P. 593,36 Kan. 121
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. THE BOARD OF COMM'RS OF STAFFORD COUNTY

12 P. 593

36 Kan. 121

THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. THE BOARD OF COMM'RS OF STAFFORD COUNTY

Supreme Court of Kansas

January 7, 1887

Decided January, 1887

Original Proceedings in Mandamus.

MANDAMUS brought in this court July 14, 1886, by The Railroad Company against the County Board of Stafford County. The opinion herein, filed January 7, 1887, contains a sufficient statement of the case.

Geo. R Peck, Geo. W. McCrary, and A. A. Hurd, for plaintiff.

J. W Rose, and Waters & Chase, for defendants.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This is an action to compel the defendants, as the board of county commissioners of Stafford county, to issue seventy-two bonds of that county, of the denomination of one thousand dollars each, with interest coupons attached, upon an alleged subscription in writing, to the capital stock of the Arkansas River & Western Railroad Company. This railroad company was duly incorporated under the laws of the state, and empowered to construct, operate and maintain a railroad commencing at or near the city of Hutchinson, in the county of Reno, and extending southerly through the counties of Reno, Stafford, Pawnee, and Hodgeman. On October 13, 1885, a proposition was submitted to the voters of Stafford county to subscribe to the capital stock of the railroad company in the sum of one hundred and twenty-eight thousand dollars, upon the conditions that as soon as the proposition should be determined in the affirmative by a canvass of the votes cast at the election, the board of county commissioners, for and on behalf of the county, should order the county clerk to make, and the county clerk should make, a subscription in the name of the county, for twelve hundred and eighty shares of the capital stock of said company, and upon the completion of the road, and its operation by lease or otherwise, from a connection with the Atchison, Topeka & Santa Fe Railroad Company at or near Hutchinson, by way of the city of Stafford, in Stafford county, to the city of St. John, in Stafford county, the company should receive seventy-two thousand dollars of the bonds, and issue therefor seven hundred and twenty shares of stock; and upon the completion of the road, and its operation to the west line of Stafford county, the company should receive an additional fifty-six thousand dollars of bonds, and issue therefor fifty-six thousand dollars of shares of its stock; that the board of county commissioners should cause the bonds when earned to be issued in the name of the county, and should deliver the same to the company on delivery or tender to the board of county commissioners by the railroad company of certificates of shares of fully paid up capital stock of said company equal in amount with the bonds. After the election upon the proposition and a canvass of the returns thereof, it was duly ascertained and declared that the proposition to subscribe to the capital stock of said railroad company had been legally carried.

On October 31, 1885, T. A. Hays, the county clerk of Stafford county, subscribed for twelve hundred and eighty shares of the capital stock of said railroad company, of the par value of one hundred dollars per share, in the name of the county; the same to be paid for in bonds of the county issued to the railroad company, in accordance with the terms and conditions of said proposition above referred to. Afterward the Arkansas River & Western Railroad Company entered into a contract with another company, by which it sold all of its stock and bonds in order to obtain the necessary funds to construct its road, and with these funds the road was constructed, in compliance with the terms of the proposition. On May 31, 1886, the Arkansas River & Western Railroad Company was merged by consolidation in the Chicago, Kansas & Western Railroad Company, which was a consolidation of several constituent companies. On October 9, 1886, the charter of the consolidated company was so amended as to authorize the construction of additional lines of road. On July 6, 1886, the plaintiff tendered to the county treasurer of Stafford county certificates of its capital stock, fully paid up, in amount of seventy-two thousand dollars, and demanded the issuance of bonds therefor, as required by the terms of the proposition submitted on October 13, 1885.

The principal question presented for our determination is, whether there was a valid subscription. There was no written order or resolution of the board of county commissioners, ordering the county clerk to make any subscription. It is claimed, however, that an order was actually made, and, as the record of the proceedings of the board is silent in this respect, that the order may be proved by parol evidence. While the statute requires that the county clerk shall record all the acts and proceedings of the county board, yet there is no statute that renders such acts or proceedings void, if not recorded, and no statute that makes the records of the county board the only evidence of its acts and proceedings. ( Gillett v. Comm'rs of Lyon Co., 18 Kan. 410.) Therefore, if any order was made by the board to the clerk to make the subscription, and the same was not properly recorded, the order may be established by parol evidence. This has been decided in Butler v. Comm'rs of Neosho Co., 15 Kan. 178, and Gillett v. Comm'rs of Lyon Co., supra; City of Troy v. Railroad Co., 11 Kan. 519. See also Town of Solon v. Bank, 35 Hun 1.

An examination of the detailed facts as proved shows that on the day that the votes upon the proposition to subscribe the stock were canvassed, the board of commissioners of Stafford county consisted of Messrs. Dewey, Wilbur, and McCoomb. After the proposition had been declared by the board as having been carried, the county clerk asked Wilbur while the board was in session "If it was his duty now to subscribe for the stock at the proper time," who answered "That it was." No objection was made by any of the other members of the board, and the clerk understood the answer to be an order from the board for him to go ahead and subscribe the stock. Wilbur testified among other things as follows:

"Q. Were you present at the time the vote was canvassed for the election to vote bonds to the Arkansas River & Western Railroad Company? A. Yes, sir.

"Q. State whether there was any order, either verbal or otherwise, given to the clerk at that meeting authorizing him to subscribe to the capital stock of that railroad company. A. The matter was talked over, and Mr. Hays was instructed to make the subscription of stock.

"Q. Was that done by written instruction, or verbal? A. It was done by verbal instruction.

"Q. Was it done in the usual and customary manner of doing business where there was no dispute between the members of the board? A. As preliminary, I want to state how we were in the habit of doing in all matters that came up. When there was no difference of opinion between members of the board, it was customary for one member to speak up and ask if that meets with the concurrence of the others. It was not customary until within the last three or four months, since we got into this railroad muddle, to differ from that custom by making motions and putting matters to a vote, for, as I said before, that we did not put any motions except there was a controversy or difference of opinion between members of the board.

"Q. And this order was made in the same manner? A. Yes, sir."

E. W. Dewey, the chairman of the board, testified as follows:

"Q. You may state if you were present at the time the vote was canvassed for voting bonds to the Arkansas River &...