Portland & Oxford Central Railroad v. Inhabitants of Hartford

Appleton, C. J. By the Public Laws of 1867, c. 119, any city or town was authorized to raise money to aid in the construction of any railroad in this State, “provided that two-thirds of the legal voters present, and voting at such meeting, shall vote therefor.” The inhabitants of Hartford, at a regular town meeting, duly held on 12th Sept., 1868, by the vote of two-thirds of the legal voters, present and voting, voted, “ That the town loan its credit to the Portland & Oxford Central Railroad Company for the sum of six thousand five hundred dollars, to aid in the extension of said road from Hartford Center to Canton Mills, said loan to be issued to said company in interest-bearing bonds, payable in twenty years, the interest to be paid annually, at any National Bank in Portland, in exchange for a like amount of preferred stock in said road, at such time as said company shall build, or cause said road to be built, to Canton Mills, provided that said road shall be completed to Canton Mills, and the cars are running and transporting freight and passengers over said road, from Mechanic Falls to Canton Mills, on or before Jan. 1, 1870, and provided also that the amount of preferred stock issued on said road shall not exceed the sum of one hundred thousand dollars. Should the road not be completed to Canton Mills, and cars running, Jan. 1, 1870, and should the amount of preferred stock, issued on said road, exceed one hundred thousand [27] dollars, making the -whole stock in said road exceed the sum of three hundred and forty thousand dollars, the above vote, loaning the credit of the town, shall be null and void.” The vote is conditional. It is to be null ami void, if tho road is not completed to Canton Mills, and the cars running, Jan. 1,1870. It is not enough that the cars are running. They may run over a road not completed. The condition is not that they should be so far completed that cars may run over it. The condition requires its completion equally with the running of cars. The case finds that the railroad was not completed so as to entitle the petitioners to the bonds of the town under this vote. At a town meeting duly notified and called on 15th Jan., 1870, a majority of the inhabitants of Hartford, present and voting, “Voted to issue bonds to the Portland & Oxford Central Railroad Company for the sum of six thousand five hundred dollars, taking a like amount of preferred stock in said road in exchange, as contemplated in a vote passed Sept. 12, 1868.” As this vote vras passed by only a majority, the petitioners can claim no rights under it as a vote under the provisions of c. 119. Can a town by the vote of a majority waive, change, or modify the terms and conditions of a vote of two-tliirds, so as to bind the town by such waiver, change, or modification, in cases where, as under c. 119, the vote of two-thirds was required to bind the town? The vote of Sept. 12, 1868, vras an unit. The towm had a right to prescribe the terms and conditions upon which it would render its aid to the petitioners. Its liability was conditional. It arose only by and through a vote of two-thirds. It could have no existence save by and through such vote. A majority at the September meeting could not have waived, changed, or modified any of the terms and conditions prescribed by tlie vote of two-thirds. If they could not at that meeting, they could not at any subsequent meeting, for the power of a majority is as great at one town meeting as at another. If they could change the contract in one essential, they might in another, — in all. If a majority could waive or change one condition, they could another. If they could waive or [28] modify the terms and conditions upon which the credit of the town was to be loaned, they might equally well change the sum to be so loaned. But does the vote of Jan. 15,1870, waive, change, or modify any of the conditions prescribed in the vote of Sept. 12, 1868? The vote was to issue bonds, “ as contemplated in a vote passed Sept. 12,1868.” But what was contemplated by that vote? ilost assuredly, that the bonds of the town should be issued only upon the terms and conditions therein expressed, and upon none other, for it expressly provides, in case of a failure of the conditions precedent, that “ the above vote, loaning the credit of the town, shall be null and void.” To say that the bonds should be issued on terms and conditions other than those specified in the vote, would be to decide that they should be issued not as contemplated in the vote of September 12th. If the bonds were issued without a performance on the part of the petitioners of the conditions, to be by them performed, they most clearly would not be issued as contemplated by the vote. The vote, therefore, of January 15th, upon a fair consti'uction of its terms-, does not waive, change, or modify the vote of Sept. 12, 1868, xxor does it purport so to do. It directs the issuing of the bonds as therein coxxtemplated, and as all the. conditioxxs ■precedent, therein contemplated, have xxot beexx performed, it cannot reasonably be construed as requiring their issue when not contemplated by that vote. It may well be doubted whether mandamus can be regarded as the proper remedy in a case like the present, when the liability of the defexxdants is contested, it being what is termed a prerogative writ and not a writ of right; but of that we give no opixxion, inasmuch as upon the facts as px’oved, or as found by tho justice presiding at nisi prius, we are satisfied that it should be denied. Dane v. Derby, 54 Maine, 95. Writ denied. Costs for respondents. Cutting, Kent, Barrows, and Danforth, JJ., concurred. Tapley, J., concui'red in the result.