The Ohio Vakley Iron Works v. The Town Of MoUNDSVILLE.

• Decision Date: 07 July 1877
• Parties: The Ohio Vakley Iron Works v. The Town of MoUNDSVILLE.
• Court: West Virginia Supreme Court

11 W.Va. 1

The Ohio Vakley Iron Works

v.The Town of MoUNDSVILLE.

Supreme Court of Appeals of West Virginia.

Decided July 7, 1877.

1. The Statute of 1872-3, chapter 141, §1, which provides that "all

municipal corporations for the government of cities, towns and villages in this state, are hereby authorized to issue their bonds and to sell them," &c, does not authorize the town of Moundsville to issue its bonds and donate them to the Ohio Valley Iron Works in aid of said company's manufacturing and mining enterprise, it not being for the municipal or public purposes of said town.

2. All said bonds are illegal, null and void.

3. The town has no authority to levy a tax for the purpose of pay-

ing said bonds.

4. A mandamus nisi sued out to compel such levy of a tax should

be dismissed.

On the 4th day of November, 1876, the circuit court of the county of Marshall, overruled a demurrer, filed by The Ohio Valley Iron Works, to a return made by The Town of Moundsvilie, to a mandamus nisi, issued upon the petition of The Ohio Valley Iron Works, and rendered a judgment dismissing said mandamus nisi.

This is an appeal from and supersedeas to said judgment, granted upon the petition of The Ohio Valley Iron Works.

Hon. Thayer Melvin, Judge of the first judicial circuit, rendered the judgment complained of,

Moore, Judge, who delivered the opinion of the Court furnishes the following statement of the case.

Article 10, §9, Constitution of 1872, declares:" The Legislature may, by law, authorize the corporate authorities of cities, towns and villages, for corporate purposes, to assess and collect taxes; but such taxes shall be uniform, with respect to persons and property within the jurisdiction of the authority imposing the same."

The eighth section of the same article of said Constitution declares: "No county, city, school district, or municipal corporation, except in cases where such corporations have already authorized their bonds to be issued, shall hereafter be allowed to become indebted, in my manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate, exceeding five per centum on the value of the taxable property therein: o be ascertained by the last assessment for state and county taxes, previous to the incurring of such indebtedness; nor without, at the same time, providing for the collection of a direct annual tax, sufficient to pay an- nually, the interest on such debt, and the principal thereof, within, and not exceeding thirty-four years.

Provided, That no debt shall be contracted under this section, unless all questions connected with the same, shall have been first submitted to a vote of the people, and have received three-fifths of all the votes cast for and against the same."

The Legislature, pursuant to said section eighth, by chapter 141, acts 1872-3, authorized, "all municipal corporations for the government of cities, towns and villages in this State, "" to issue their bonds, and to sell the same: Provided, That no such corporation shall by such issue and sale of bonds, cause the aggregate of its debt of every kind whatsoever, to exceed five per centum on the value of taxable property therein, which value shall be ascertained by the last assessment for state and county taxes previous to the issue of such bonds; nor shall they make such issue and sale, without at the same time providing for the collection of a direct annual tax, sufficient to pay annually the interest on such debt, and the principal thereof within and not exceeding thirty-four years. But no city, town, or village, shall ever impose or exact from the inhabitants thereof, a greater amount annually than the following rates," &c.

It appears from a certified copy of the record and proceedings of the council of the town of Moundsville, that the said council on the 26th day of January, 1874, adopted a resolution declaring that they deemed it "expedient for the town of Moundsville to issue its bonds for $10,000.00 to the Ohio Valley Iron Works, payable in ten years from the date thereof, with interest at 6 per cent per annum, payable annually."

PROCLAMATION;

" An election of the legal voters of the town of Moundsville, will be held at the Court House and the Latrobe Hotel, the usual places of holding municipal elections within the said town, on the 14th day of Feb- ruary, 1874, under the supervision and control of the proper officers for holding such elections, upon the ratification or rejection of the following

ordinance:

" It is ordained by the Council of the town of Moundsville, That ten thousand dollars ($10,000.00) is hereby donated by the town of Moundsville to the Ohio Valley Iron Works, payable in ten years from the 1st day of March, 1874, with interest thereon at the rate of 6 per cent perlannum, payable annually. No bonded debt of the town of Moundsville exists."

"The person voting for the ratification of the ordinance aforesaid shall have written or printed upon his ballot the words 'for ratification, 'and the person voting against ratification shall have written or printed upon his ballot the words 'for rejection.'"

" Teste:" John Ferguson, Mayor.

" H. W. Hunter, Clerk of the Town of Moundsville.

"January 25, 1874, "

On motion, the council adjourned to meet on Monday, February 16, 1874.

John Ferguson, Mayor.

H. W. Hunter, Clerk.

Court House, February 16, 1874.

The council assembled pursuant to its adjournment with Mayor Ferguson in the chair; members present: Messrs Gallaher, Purdy, Harris and Hunter.

The minutes of the last meeting were read and approved.

The council proceeded to examine the returns of the election held on the 14th inst., in pursuance of the proclamation of the Mayor, whereupon Mr. Gallaher offered the following ordinance, which was, on his motion, adopted by the council:

"At an election of the legal voters of the town of Moundsville, held on the 14th day of February, 1874, within the said town, the same being duly ordered and advertised, held and conducted, and the result thereof being certified and returned in all respects pursuant to law, the result thereof is here ascertained and declared to be as follows upon the ratification or rejection of the following ordinance:

" It is ordained by the Council of the town of Moundsville, That ten thousand dollars ($10,000.00) is hereby donated by the town of Moundsville to the Ohio Valley Iron Works, payable in ten years from the 1st day of March, 1874, with interest thereon at the rate of six per cent per annum, payable annually.

"Vote For ratification, two hundred and four (204) votes;" for rejection," eleven (11) votes. And therefore the said ordinance is hereby declared to be duly ratified and in full force and virtue, and John Ferguson, mayor of the town of Moundsville, is hereby authorized, instructed and empowered to make, sign, seal and isssue bonds of the town of Moundsville to the amount of $10,000, 00, in such sums as the law requires, payable to the Ohio Valley Iron Works, or order, in ten years from the date thereof, with interest thereon at the rate of six per cent per annum, payable annually. The bonds are to be attested by the clerk and a due record of all the said bonds is to be kept and preserved by him in his office.

And it is further ordained, That a direct annual tax sufficient to pay the interest on said bonds, and when required, the principal thereof, within ten years from the date of the said bonds, is hereby directed to be made, levied and collected on all the real estate and personal property within the town of Moundsville subject to state and county taxes."

On motion, the mayor and clerk, in connection with the committee on finance, were instructed to prepare and have printed the bonds to be issued.

On motion, the clerk was instructed to procure a seal for the use of the town.

At a meeting of said council, April 13, 1874, "on motion, it was ordered that the following bonds of the town of Moundsville, viz: Three of the denomination of $1,000.00 each; eight of the denomination of $500.00 each; ten of the denomination of $200.00each; and ten of the denomination of $100.00 each, payable to the Ohio Valley Iron Works, in pursuance of a former order of this council providing for the issue of $10,000.00 in bonds, payable ten years after date, as a donation to the said " Ohio Valley Iron Works," be signed by the mayor and clerk of the said town, and attested by the common seal of said town, and delivered to the authorized agent of said Ohio Valley Iron Works, after receiving a proper voucher or receipt therefor."

At a meeting of said council, May 8, 1874, the word "order" in the ordinance passed February, 16, was changed to " hearer."

At a special session of said council, August 11, 1874, it was ordained as follows:

" Be it ordained by the Common Council of the Town of Moundsville, That 50 cents be levied on the real and personal properly of the town for the purpose of paying the annual interest and creating a sinking fund, as the law directs, on the bonded debt of the town, and that 30 cents be levied on the real and personal property of the town, for the purpose of repairing the sidewalks thereof, and the general contingent expenses of the town for the coming year."

It appears from the record, that upon the trial of this cause one of the bonds of March, 1874, for $500.00. marked No. 22 C, with nine coupons of $30.00 each attached, and numbered from two to ten.inclusive No. 1 having been detached with the corporate seal of the town of Moundsville affixed, was offered and used in evidence. Said bond is in the words and figures following, to-wit:

United States of America.

State of West Virginia, Town of Moundsville: Know all men by these presents, That the town of Moundsville, in the State of West Virginia, is indebted to the Ohio Valley Iron Works, or bearer, in the sum of $500.00, which sum the said town of Moundsville promises to pay to the said Ohio Valley Iron Works, or bearer, ten years after date, at the office...