Carpenter v. Greene County

TYSON, J. On December 31st, 1868, the General Assembly enacted a general statute entitled “An act to authorize the several counties and towns and cities of the State of Alabama to subscribe to the capital stock of such railroads; throughout the State as they may deem most conducive to their respective interests.” Acts, 1868, pp. 514-529. By the first section of the act, it was provided that counties situated upon or adjacent to the main or 'branch line of a railroad of the State should be authorized to subscribe to its capital stock. It required that the company, acting through its president and a majority of ite directors, should first suh627 mit to the court of county commissioners of the county whose subscription ivas sought, a proposition that it should so subscribe for a named amount of stock at a stated price and should pay for the same in bonds described in the proposition. By the second, third, fourth and fifth sections of the act, an election was provided for, at which the question of subscription or no subscription should be submitted to the qualified electors of the county. The elec-. tion, it was provided, shall be held under the direction of the court of county commissioners, within a given time and after a prescribed notice, and should be governed by the laws relating to other elections except as changed by the act. By the fifth section, returns of the election were required to be. made “by the proper officer to the judge of probate of said county, whose duty it shall be to receive, count, estimate and publish the vote thereof” within a stated time, and provision was made for similar action by the clerk of the circuit, court in the event of disability on the part of the probate judge. Section six provides, that if it is found that a majority of the qualified electors voting at the election shall have voted in favor of subscription, then upon the announcement of the vote as provided, the proposition shall be deemed and held to be accepted, and the court of -county -commissioners shall be authorized to subscribe for the stock and to issue bonds of the county in the manner and to the amount set forth in the proposition, which ishall be delivered to the railroad company in payment of the-subscription. The bonds, it was provided, should not run less than ten nor more than twenty years, with interest payable sen)i-annually. The seventh, eighth, and ninth sections relate to taxation for the payment of the interest, limiting the rate of taxation to one per centum on the value of 'real and personal property in any -one year. It is unnecessary to notice the remaining provisions of the act as they relate chiefly to subscriptions by cities and towns. On the same day the General Assembly passed another act entitled “An act to amend -and revise the general acts incorporating the Cahaba, Marion & Greens — 628 — boro Railroad Company, and to change the name and style of said company.”- — Acts, 1868, p. 566. After reciting in a preamble the several former acts revised, the act proceeds to incorporate the new. company, prescribe its capital stock, etc. The sections of this act material in the present -case are four -and five. By section four it is provided: “That the courts of county commissioners of the respective counties- through which the road shall pass, are respectively hereby authorized and empowered to make subscriptions to the capital stock of said company, in such sum or sums, and payable in such -amount, and at ¡such times as said court may deemed proper, and each of said courts is further authorized to issue bonds on the faith of the county in such sums as may be deemed best, payable at such time, (hearing not more than 8 per cent, interest per annum, as said court may determine), and may -sell said bonds to raise the money to pay the stock subscribed, or may transfer them on such terms as may be agreed upon with said company, in payment of the stock subscribed; and said courts separately are hereby authorized and empowered to levy a tax on the lands of their respective counties, to pay the interest accruing on said bonds, and to pay the bonds at maturitv, and these provisions shall be deemed irrepealable, without the consent of the bondholder's, until paid.” Section five authorized the municipal authorities of any town or county through which said road may run to subscribe to the capital stock- of said road with the following proviso : Provided, “That before the said commissioners’ -court shall proceed to make any subscription of ¡stock to said railroad, they shall submit the question to the electors of said county, by giving thirty days notice of an election to be’ held for that purpose, and the amount of stock pronosed by them to be subscribed; and if two-third® shall vote in favor thereof, then -said subscription shall he made and not othemoise,” etc. On'the 6th day of August, 1869, the Selma, Marion & Memphis Railroad 'Company, through its president, acting under authority conferred bv its board of director®, presented its proposition to the court of county — 629 — commissioners of Greene county, inviting a subscription to its capital stock by the county in the stun of eighty thousand dollars, payable in bonds. Said proposition recited that it was made under and in pursuance of the authority conferred by the general act of December 31st; 1868, and requested that it be submitted to the qualified electors of the county under that act. An election was thereupon ordered by the commissioners’ court and held on the 14th day of September, 1869, at which a majority, but less than two-thirds, of the electors participating, voted in favor of the proposition. The return's showing these facts, were made to the commissioners’ court, and that court at a term held in December, 1869, subscribed to the stock as proposed and directed that the bonds be executed and delivered to the railroad com-. l>any. Thereupon the bonds were so issued and delivered. The bonds are in the ordinary commercial form with interest coupons attached. They do not - state expressly under what act they were issued, the recitals upon the subject and relative to the election being as follows: “This bond is issued under and pursuant to an order of the court of -county commissioners of -said Greene county, made under authority of the constitution of the State of Alabama, and the laws of the Legislature of the State of Alabama, authorized by a vote of the people of said county at a -special election held for the purpose on the 14th day of September,. 1869.” The bonds were signed by the probate judge, describing himself as “Judge of Probate Court and ex-officio, the presiding officer, Court of 'County -Commissioners, Greene Co., Álabama.” This action was brought against the county to recover upon interest coupons attached to some of these bonds, and .the trial was had under an agreement of counsel as to pleadings broad enough to -cover the question presented in the court below and in this court. The foregoing facts were shown in evidence, and there was also proof of certain promises made by the officers of the railroad company to citizens of Greene county prior to the subscription, for the purpose of inducing a favorable vote on the subscription which, it is claimed, were — 630 — never fulfilled. We do not think that a breach of those promises could affect the bonds, issued under the subscription actually made. The subscription having been actually made and the bonds issued and delivered in pursuance of the subscription, on passing into the hands of purchasers for value, renders all such evidence unavailable for any purpose in a suit upon the bonds, Avhatever may have been the right of the county to have rescinded the contract of subscription before the bonds were issued or to have maintained an action for a breach of these promises against the railroad company. A preliminary question is presented as to the right of the plaintiff to maintain this suit. We think the evidence shows that he has such an interest in the coupons as authorizes: him to do so. It shows that he had the right to do with the bonds and coupons as he pleased. •He could give any acquittance upon any consideration he chose. And the fact that he might have to account for a part of the proceeds to another person, would not defeat his right to sue. Payment could have been efficaciously made to him and he can discharge the defendant from further liability on them. The bonds 'and coupons required no endorsement to pass the legal title to him. As they were given to the plaintiff to do as he pleased with in the way of enforcing payment, in which he had an interest, he was entitled to maintain the action.—Berney v. Steiner Bros., 108 Ala. 111; Rice v. Rice, 106 Ala. 636; Bibb v. Hall, 101 Ala. 79; Yerby v. Sexton, 48 Ala. 311. Two curative acts passed by the General Assembly were introduced in evidence, the first purporting to legalize elections and other proceedings had under the general law of December 31st, 1868; and the other purporting to validate certain elections, including the election held in Greene county on the 14th day of September, 1869. The title of the latter act is: “An act to ratify the election held in the towns of Greensboro and Eutaw and in the counties of Hale, Greene and Pickens to subscribe stock to the Selma, Marion & Memphis Railroad Company,” which was approved March 3d, 1870. In so far as it applies to said election its language — 631 — is: “That the election held in Greene county on the fourteenth day of ¡September, 1869, at which election the tpialified electors of said county, 'by a vote of ten hundred and eleven (1011) votes for ‘subscription’ and five hundred and fifty (550) votes for ‘no subscription/ voted to subscribe eighty thousand ($80,000) dollars of stock in the bonds of said county of Greene to the ¡Selma, Marion & Memphis Railroad Company, * * * said election is * * * hereby ratified and made valid in all inspects and particulars.” — Acts, 1869-70, p. 305. The important cpiestion is whether or not the election could be held and the subscription made and •the bonds issued under the general law. It is insisted that the special act amending and revising the charter of the Oahaba, Marion & Greensboro Railroad Company, giving the courts of county commissioners of the respective counties through which the road shall pass authority to subscribe to the capital stock of the said railroad, repealed the general law in the counties embraced by the special act. If it appeared that the special act necessarily covered and related to the county of Greene, and if it further appeared that the subscription authorized by the special act was the same in all substantial respects, as that authorized by the general act, the contention would be sound, but the county of Greene is not mentioned in the special act, and it is shown that said railroad did not pass through or into said county. The authority to subscribe under the special act was only extended to the courts of county commissioners of. the counties “through which the roads shall pass.” But-independent of this, there is no good reason why both acts may not apply; and it is a well settled rule of construction of statutes, that one does not repeal another by implication if both may have a distinct field of operation.—Sutherland on Stat. Con., §§ 157, 158; Maxwell v. The State, 89 Ala. 150; County of Cass v. Gillette, 100 U. S. 585. Under the general act, the bonds subscribed for, which were to run not less than ten nor more than twenty years, were to be delivered to the railroad company in payment of the subscription, and a majority of voters was sufficient to determine the subscription and the tax to pay for the bonds issued under — 632 — the subscription is to be levied,' as other State and county taxes, upon real and personal property; but by the seventeenth ¡section thereof, it is provided that the persons who pay the taxes on or for the bonds issued own the stock bought with the 'bonds in the proportion that they severally pay the taxes. A subscription under the general law was, therefore, in effect, a subscription by the several taxpayers of the county and they became the owners of the stock. Under the special act, the bonds subscribed for by the county may be sold by it and the proceeds used to pay for the stock subscribed, or they may be transferred on such terms as may be agreed upon with the company and there is no limitation upon the time they are to run. Under this act lands only are to be taxed for the payment of the bonds and there is no provision whereby the taxpayers, in any event, become the owners of the stock — the county as a municipality is the owner. It is evident that the 'G-eneral Assembly might very well intend or purpose that the general taxpayers of the county might subscribe as provided under- the general act and at the same time have a more restricted law under the special act by which the special counties benefitted by the road, by its passing through their borders, might ¡subscribe upon a two-thirds vote and a tax upon the land only. There is no absolute repugnance between the two acts and, therefore, as the general act was operative, there is no reason why the subscription might not have been made as it was made. This construction gives a field of operation for both. County of Clay v. Society for Savings, 104 U. S. 579. It was entirely within the competency of the Legislature to cure any irregularity in the conduct of the election or the issuance of the bonds.—Utter v. Franklin, 172 U. S. 416; Grenada County p. Brogden, 112 U. S. 261; State ex rel. etc. v. Webb, 110 Ala. 214; Cent. A. & Mech. Asso. v. Ins. Co., 70 Ala. 120; McKenzie v. Gordon, 68 Ala. 442. If there was any irregularity whatever in respect of the conduct of the election or the issuance of the bonds, it was cured by the act approved March 1, 1870, (Acts, 1869-70, p. 286), legalizing and — 633 — confirming all acts and things theretofore done and performed in this State for railroad purposes in substantial compliance with the provisions of the general act of December 31, 1868, above mentioned. There docs not appear, however, to have been any irregularity in the issuance of these bonds, and they are 'binding obligations upon the defendant.—County of Clay v. Society for Savings, supra; Greene County v. Daniel, 102 U. S. 187; Chambers County v. Claws, 21 Wall. 317; Commissioners of Limestone County v. Rather, 48 Ala. 433. Reversed and remanded.