The Memphis, Kansas & Colorado Railway Company v. Thompson

• Decision Date: 21 September 1880
• Citation: 24 Kan. 170
• Court: Kansas Supreme Court
• Parties: THE MEMPHIS, KANSAS & COLORADO RAILWAY COMPANY v. JOHN W. THOMPSON, as Mayor of the City of Parsons, et al

24 Kan. 170

THE MEMPHIS, KANSAS & COLORADO RAILWAY COMPANY v. JOHN W. THOMPSON, as Mayor of the City of Parsons, et al

Supreme Court of Kansas

September 21, 1880

Decided July, 1880

Original Proceedings in Mandamus.

ON the 7th day of May, 1879, an alternative writ of mandamus was issued out of this court, upon a petition filed therefor on behalf of the Memphis, Kansas & Colorado Railway Company and directed to John W. Thompson, as mayor of the city of Parsons, and A. A. Osgood, as clerk of said city, commanding them, as such officers, immediately upon the receipt of said writ, to issue and deliver to the plaintiff thirty negotiable bonds of said city, each for $ 1,000, payable in thirty years from July 1st, 1878, with interest at the rate of eight per cent. per annum, payable annually, both principal and interest payable at the fiscal agency of the state of Kansas in the city of New York -- such bonds to be in the usual form, with interest coupons attached, and covering the principal sum of $ 30,000, and to be issued in payment of the subscription of said city to a like amount of the capital stock of the railway company aforesaid; or that the said defendants show cause, etc. June 16, 1879, the defendants answered, showing cause. Afterward, the case was tried upon the pleadings and oral and written evidence. The opinion herein was filed September 21, 1880.

Judgment entered in favor of defendant.

Ayres & Kimball, for plaintiff.

David Kelso, R. T. Holloway, and T. C. Cory, for defendants.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.

This action was brought to compel the issue of $ 30,000 in bonds of the city of Parsons, in payment of the subscription of the city to a like amount of the capital stock of the Memphis, Kansas & Colorado Railway Company. The aid was voted and subscription made under ch. 107, Laws of 1876, the provisions of which, so far as material, are as follows:

"SECTION 1. Whenever . . . two-fifths of the resident tax-payers of any incorporated city shall petition the mayor and council of such city to submit to the qualified voters of such . . city a proposition to subscribe to the capital stock . . . of any railroad company constructing or proposing to construct a railroad through or into such . . . city, . . . the mayor and council, for such city, shall cause such an election to be held to determine whether such subscription . . . shall be made.

"SEC. 2. Before such subscription or loan shall be made, the question shall first be submitted to the qualified electors of such . . . city, as provided in § 1 of this act, at a special or general election, as the same shall be specified in the petition; which petition shall also designate the railroad company and the amount of stock proposed to be taken, . . . and the terms of payment, together with the conditions upon which it is proposed to make such subscription, . . . and the form of the ballots to be used at such election for and against such proposition.

"SEC. 3. The . . . mayor and council for such city, upon the presentation of the foregoing petition and such other conditions as may be deemed advisable by the authority ordering such election to . . . the mayor of the city shall convene and make an order which order shall embrace the terms and conditions set forth in the petition, and shall fix the time for holding said election, which shall be within sixty days from the day on which . . . the members of the council shall be convened.

"SEC. 4. Thirty days' notice of such election shall be given in some newspaper published or having a general circulation in such . . . city, and the election shall be held and the returns made and the result ascertained in the same manner as provided by law for general elections.

"SEC. 5. If two-thirds of the qualified electors voting at such election shall vote for such subscription, the mayor and council, for and on behalf of such city, shall order the . . . city clerk . . . to make such subscription or loan in the name of such . . . city; and shall cause such bonds, with coupons attached, as may be required by the terms of said proposition, to be issued in the name of such . . . city, which bonds . . . shall be signed by the mayor, and attested by the city clerk under the seal of said city: Provided, No such bonds shall be issued until the railroad to which the subscription . . . is proposed to be made shall be completed and in operation through the county, township or city voting such bonds, or to such point in such county, township or city as may be specified in the proposition set forth in the petition required by the first section of this act."

"SEC. 8. Before any railroad company shall be entitled to receive any bonds issued in pursuance of the foregoing provisions for the stock of such company, said company shall deliver to the treasurer of such . . . city, stock in their said road, equal in amount with the bonds authorized to be issued, dollar for dollar."

The plaintiff was incorporated November 26, 1877. On the 14th of December, 1877, a petition was presented to the mayor and council of the city, the terms and conditions of which are embraced in the order hereafter referred to, excepting the second proviso of the petition, which is as follows:

"Provided further, That no such bonds shall be issued until the said . . . railway shall be constructed and in operation from the city of Cherokee . . . to the road-bed of the Missouri, Kansas & Texas Railway, in the city of Parsons, and its depot established within thirty-five rods of the brick passenger depot of the last-mentioned railway, in said city of Parsons."

On the 19th of December, 1877, after examining the petition and finding it sufficient as to numbers and qualifications of petitioners, etc., the mayor and council made an order calling an election, which, so far as material, is as follows:

"Whereas, on the 14th day of December, 1878, a petition was presented to the mayor and councilmen of the city of Parsons, . . . signed by more than two-fifths of the resident tax-payers . . . of said city, asking that the mayor and council aforesaid cause an election to be held to submit . . . the proposition to subscribe thirty thousand dollars to the capital stock of the Memphis, Kansas & Colorado Railway Company, such stock to be paid for by the bonds of said city of Parsons, in equal amounts, dollar for dollar, which bonds are to draw interest at the rate of 8 per cent. per annum. from their date, and be payable in thirty years: Provided, etc. . . . Provided further, That no such bonds shall be issued until the said railway company shall construct a road from the city of Parsons, Kansas, to the city of Cherokee, Kansas, according to the terms relating to the construction and equipment of said road as stipulated in the contract, dated November 24th, 1877, and published in the Parsons Eclipse, November 29th, 1877, between the Memphis & Ellsworth Narrow-Gauge Railway Company, and Greene, Bennett & Company, and agree to maintain and continue to operate said railway from the city of Cherokee . . . to the road-bed of the Missouri, Kansas & Texas Railway, in said city of Parsons, and its depot established within thirty-five rods of the brick passenger depot of the last-named railway, in the city of Parsons: Provided further, That no such bonds shall be issued at all, unless the said Memphis, Kansas & Colorado Railway Company shall have its road constructed and in operation from the said city of Cherokee to the said city of Parsons on or before the first day of July, 1878.

"It shall be the duty of the mayor and clerk, so soon as the said railway company shall have constructed its road and commenced running its cars from said city of Cherokee to said city of Parsons, to issue said bonds in the said sum of thirty thousand dollars . . . and deliver them to said . . . railway company in exchange for a like amount of stock of said company. Now, therefore," etc. [Here follows the order calling a special election for the purpose indicated, and prescribing the form of ballots, etc., duly signed, sealed and attested.]

It will be noticed that the order differs from the petition in this, that instead of leaving the manner of construction and extent of equipment an open question, it distinctly provides how the road shall be constructed and equipped.

Notice of the election was given as prescribed by statute. The election was held January 29, 1878, the day named in the order, and more than two-thirds of the votes polled were in favor of the proposition.

On the first of February, the mayor and council met and canvassed the vote, declared the result as stated, and at the regular session held on the 11th of the same month, passed a resolution reciting the steps that had been taken, etc., and proceeding as follows:

" . . . And whereas, All of said proceedings, including the making of said petition, its presentation, and the order for said election made thereon, notice by publication of said election, the manner in which said election was held, the returns made, and the result ascertained, have been in strict conformity with law: now, therefore, be it

"Resolved, That the city clerk of this city, in the name and in behalf of the city of Parsons, subscribe thirty thousand dollars to the capital stock of the Memphis, Kansas & Colorado railway; such subscription to be made and stock paid for in the manner and subject to the conditions and restrictions set out at large in the body of the proposition submitted at the election aforesaid," etc.

On the 22d day of the same month, the city clerk, in behalf of the city, subscribed upon the books of the railway company for the stock as directed in the resolution. The subscription after...