Goforth v. Rutherford Railway Construction Co.

Merrimon, J., (after stating the facts). In many material respects, this case is substantially like that of McDowell v. The Construction Company, decided at the present Term, and we refer to it as pertinent here. The denial by the Court of a motion for an injunction, is founded mainly upon the erroneous view of the law as to the conclusive effect of the ascertained and declared result of the election in question by the county commissioners. The Court held erroneously, that this was conclusive. We have expressly held the contrary in the similar case above cited, and we will not here add to what is there said. Nor is it true, as a conclusion of law, that, insomuch as the defendant commissioners have subscribed for shares of the capital stock of the defendant the Rutherford Railway Construction Company, and the latter has made engagements- and contracts based upon that fact, the election cannot be contested, and its validity or invalidity determined, as is sought to be done by this action. The purpose of this action is to determine the validity or invalidity of the election— not rights of the defendant already accrued. They, other- *540 than the defendant commissioners, are brought into it only-in order that the plaintiff may have equitable relief by injunction as against them, to prevent future complications as to rights that might otherwise arise, if they should go further in pursuance of the election alleged to be void. If it turns out that the election is void, what effect that may have upon the defendants claiming rights that have arisen under -an election seemingly regular, must be determined in an action or actions brought for the purpose of testing any question in that respect. Their rights, whatever they may he, cannot defeat or conclude this action. The plaintiff!, and those having like rights with him in the action, may contest the validity of the election, without regard to what has been done by the defendants. We may add, moreover, that it is alleged in the complaint, .and the evidence tends sufficiently to prove it for the present .purpose, that the defendants all had notice of the irregularities and defects in the election, and of the questionable authority of the defendant commissioners to act upon it, so that they cannot reasonably complain of possible results that may prove embarrassing to them. We do not deem it necessary at this time, to decide what effect the taking of the vote upon the propositions to subscribe for stock of two distinct companies as a single proposition, may have upon the election, further than to say, that it was certainly irregular and improper to do so. Manifestly, the plaintiff alleges a sufficient cause of action, •and a careful examination of the evidence produced in support of and against the motion for an injunction, fully satisfies us that apparently — probably—-he may succeed in establishing it. The Court ought therefore to have granted the injunction pending the action as prayed for by the plaintiff. To the end that this may yet be done, let this opinion be ■certified to the Superior Court. It is so ordered. Error. Reversed.