Trimmier v. Bomar
| Decision Date | 15 January 1884 |
| Citation | 20 S.C. 354 |
| Parties | TRIMMIER v. BOMAR. |
| Court | South Carolina Supreme Court |
1. A finding of fact by the Circuit judge, on a motion made before him for a preliminary injunction, sustained.
2. Doubted , whether the managers appointed to hold an election on the question of county subscription to the Greenwood, Laurens and Spartanburg Railroad Company, were required by the act of 1880 (17 Stat. 497) to take any oath.
3. The requirements of the statute authorizing an election to determine the question of a county subscription to a railroad company having been substantially complied with, and the majority at the election so held having been admittedly in favor of such subscription, an injunction to restrain the issue of county bonds therefor was properly refused.
4. The machinery provided for the conduct of elections, in so far as it is not necessary to determine the result, is directory and not mandatory. The great matter in elections is the result.
5. Where the taxing power is involved, such power can be exercised only in the manner and form prescribed by the statute; but where the question is raised only as to a power that depends upon the result of an election, the sole inquiry then is, whether the election has been held and the result ascertained.
Before WITHERSPOON, J., Spartanburg, March, 1883.
This was an action by F. M. Trimmier, Lewis Yarborough, J. T Pool, Alfred Tolleson and Joseph Walker against J. E. Bomar et al. , county commissioners of Spartanburg county and the Greenwood, Laurens and Spartanburg Railroad Company.
The decretal order appealed from, was as follows:
This action was brought by plaintiffs, tax-payers of Spartanburg county, to restrain the county commissioners of said county from issuing certain bonds of said county in aid of the Greenwood, Laurens and Spartanburg Railroad Company. The allegations of the complaint will be more specifically pointed out in the statement of facts on motion hereafter decided. At the commencement of the action an ex parte order was made, requiring the county commissioners of said county to show cause, before me, why they should not be enjoined from issuing said bonds until the final hearing of the cause, and restraining them from issuing same until further orders of the court. The defendants county commissioners have filed their answer to the complaint, which it is unnecessary to set out in this decree. Upon due notice, the Greenwood, Laurens and Spartanburg Railroad Company was made a party defendant, and allowed to appear and join in the return to the rule.
The return to the rule was heard before me at chambers at Union Court House, on the 6th and 7th of the present month. The affidavits submitted for and against the rule are voluminous and it is impracticable to state the same fully. It is only necessary to say that the only matters in controversy were certain alleged irregularities at the voting precincts in said county, at an election held pursuant to act of general assembly of December 24th, 1880, authorizing a subscription by the county of Spartanburg to the capital stock of the Greenwood, Laurens and Spartanburg Railroad Company, in that the managers and voters were not sworn according to law, and the oaths of managers were not filed in the clerk's office, and an alleged irregularity in counting the votes and the proper certificate of the result of said election to the county commissioners of said county.
As to the irregularities, either in the failure of the managers or of the voters at said election to take the oaths alleged to be necessary, no testimony has been offered by plaintiffs except as to five precincts. Such testimony was insufficient to sustain the allegations of the complaint, and was contradicted by positive affidavits on the part of defendants, except as to two small precincts in said county and at one of these the record shows that at least the chairman of the board was properly sworn as a manager. But, admitting that the plaintiffs had shown fatal irregularities at any or all of said five precincts, so as to necessitate their being thrown out, the majority of votes for the subscription would still be more than one thousand. The case of the plaintiffs must therefore, necessarily, rest upon the alleged irregularity with reference to the counting of the votes and certification of the result of the election.
**2 It is unnecessary now to consider what was under the act, the proper mode of counting the votes and certifying the result. The fact of a majority of thirteen hundred and eleven votes for subscription is not disputed by plaintiffs, and is conclusively established by testimony for defendants. It is further clearly established that within three days after the election, on July 12th, 1881, it appeared to the county commissioners of said county, by the original returns from all the precincts in said county, then in their possession, and a tabulated statement of same made and certified to by a number of the managers at said precincts, that the majority for subscription was as hereinbefore stated, and that the board on said day adopted a resolution as above stated. No fraud or misconduct on the part of any officer connected with said election or any voter is alleged or proven. The sole question therefore is, whether, upon a technical irregularity which itself is disputed and is not satisfactorily established, the will of the qualified voters of Spartanburg county upon the question of subscription to the railroad company shall be defeated. On this question I can have no doubt. The purpose of this election was to discover the will of the voters of the county in the premises. That has been conclusively shown, and it ought not to be defeated by minute objections and mere irregularities of manner and form even when well established.
The other grounds for issuing the injunction, alleged in the complaint, are so clearly untenable as not to require extended discussion. I therefore have no hesitation in deciding, from the testimony, that there is nothing to invalidate the election, and that there has been such substantial compliance with the requirements of the act as should authorize and require the county commissioners to issue the said bonds in pursuance of the terms of subscription to said railroad company.
In additition to what has already been said, I also consider that plaintiffs are estopped from bringing this action. From the date of the election in July, 1881, the plaintiffs have quietly rested, making no complaint and taking no action, although all the matters upon which they now rely were more accessible to them and susceptible of proof than now. In the meantime rights have vested in third parties. The county commissioners, on September 6th, 1881, subscribed the sum of $75,000, in bonds of said company, to the capital stock of the said railroad company, agreeing to issue said bonds as the work of construction of said road shall progress. The defendant railroad company having received said subscription and obligation to issue bonds of the county therefor, have, in advance, pledged said bonds to certain contractors for the work of construction of said railroad through Spartanburg county. Some of these bonds have already been issued, and others should be pursuant to the terms of said contract. The contract was bona fide , and it seems to me that the promises under such contract stand in a court of equity on an equal footing with bona fide holders of bonds already issued.
It is therefore ordered and adjudged, that the rule herein against the defendants, requiring them to show cause why an injunction should not issue, restraining the defendants county commissioners from issuing the aforesaid bonds, be and the same is hereby discharged, and the order for injunction heretofore granted herein be dissolved.
From this order the plaintiffs appealed, upon the ground stated in the opinion and upon two others, denying an estoppel.
Mr. Stanyarne Wilson , for appellants.
The action of the county commissioners is not res judicata . In the cases from 1 McCord 59, 2 Treadw. Con. R. 646, and 2 Rich. 7, there were special statutes for political elections, constituting the officers judicial officers as to the elections, and with no conditions precedent as here. In 16 S. C. 236, and 17 Id. 563, the matters were between parties litigant, and within the jurisdiction of the county commissioners. Big. Estop. 9. The principles upon which municipal decision has been sustained are, that where municipal officers have, by statute, power to determine whether the conditions precedent to the issue of the bonds have been complied with, and they so determine and place their recital to that effect in the bonds, this decision is final as to a bona fide holder for value before maturity, but not as to the original payees or purchasers with notice. 21 How. 539; Burroughs Pub. Sec. 272-320, 360; 4 Otto 429; Cooley Const. Lim. 196. There were fatal irregularities in the conduct of the election and making the return. The citations for respondents all relate to political elections. Cheves 269. In elections involving the taxing power there is nothing pre-existing, and a strict compliance is necessary. Burroughs Pub. Sec. 262; Dill. Mun. Corp. , § 108; 19 Barb. 558; Pot. Dwar. 223, 225, note; 5 Mich. 154; 14 Ill. 223; 2 Cranch 127; 1 Paine 406; Ang. & A. Corp. 103; 27 Ill. 309. Instances of fatal irregularities, 19 Wis. 298; 16 Wall. 660; 70 N. Y. 28; 67 Ill. 61; 13 Gray 83.
Messrs. J. H. Evins, S. J. Simpson, E. H. Bobo and J. S. R. Thomson , upon the points considered by this court, cited 17 Stat. 497, §§ 7, 8, 9; 14 Barb. 259; 10 Minn. 107; 10 Cal. 352; 1 Sneed 637; McCra. Cont. El. 123-131, 145, 175, 304, 305, 554; Pot. Dwar. 226; 5 S. C. 264; ...
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