First National Bank v. Town of Concord

The opinion of the court was delivered by Ross, J. Upon the facts found and reported by the referee the able counsel for the defendant have urged with much skill and force various objections to the right of the plaintiff to recover. While conceding the general power of the Legislature to authorize municipalities to aid in the construction of railroads, they contend that the act of March 28, 1867, under which the defendant acted or attempted to act, “ is unconstitutional in the mode prescribed for binding the town, to wit, without any corporate action by vote.” They particularize their objections as follows: “ 1. It is not a vote, and is not done in a meeting duly warned ; 2. The persons to be appointed are named beforehand in the instrument of assent, and they are to be the commissioners, and no one else, thus leaving no way for choice or selection ; 3. Women, guardians, executors and administrators, and corporations are to sign, and the same person could sign on his own list, on that of his ward, as executor of one estate and administrator of another, and as director of a corporation ; 4. There is no provision for an adjudication by any one as to whether or not the commissioners are elected, and antecedent to having ascertained that fact, they are to adjudicate and decide upon the fact as to whether or not a majority in number and amount of the resident tax-payers have signed and acknowledged the instrument of assent, and on this count their own authority depends ; 5. If there is any such thing as a count to .ascertain whether the commissioners are elected, it is done indirectly by the commissioners themselves; 6. Important matters that are intended to involve the town 'in an immense debt, are to be decided by the persons named as commissioners, without a hearing, and in a private manner.” Most of these objections are not new, nor for the first time brought to the attention and consideration of this court. The constitutionality of this act, and the substance of the objections now made, were, very soon after the passage of the act, brought for adjudication before Judge Peck as Chancellor in the case of Daniel Goodall et als. v. L. P — 276 — Poland et als., on a bill asking that tbe defendants might be enjoined from making a subscription on behalf of the town of St. Johnsbury. The injunction, after full hearing, was denied, and the case ended in the Court of Chancery. In Danville v. The Montpelier St. Johnsbury Railroad Company et als. 43 Vt. 144, and in The Essex Co. Railroad Company v. The Selectmen and Treasurer of Lunenburgh, 49 Vt. 143, the constitutionality of this act was fully discussed, and was considered by the court. Although its constitutionality is not discussed in the opinions in those cases, it is assumed, in that the decisions were turned upon points the consideration of which would have been unnecessary if the court had adjudged the act unconstitutional. Acts qlmost identical in their main provisions and so far as this question is concerned, have been before this court and held to be constitutional in the unreported case of Aldis et als. v. Lamoille Valley R. R. Co. et als., commonly known as the Swanton case, heard and decided at the General Term of this court, 1871, and in the Town of Bennington v. T. W. Park et als.,* heard and decided at the present term. After the full, elaborate, and so recent discussion of the constitutionality of this class of acts, and of the objections taken by the defendants’ counsel in the last-named case, it would be entirely out of place to attempt any extended discussion of them in this case. It may however be stated that a majority of this court hold, as is generally if not now uniformly held by the highest courts of other States and of the United States, that railroads are improved highways demanded by the necessities of the age and of the, public — properties created and permanently set apart and devoted to a public use — that because they are of this character and nature, the State can exercise in their behalf the sovereign right of eminent domain; can construct, own, and operate them, though it necessitates the levying of direct taxes upon its subjects ; or can commit their construction and operation to corporations created for these purposes, whose stockholders derive an individual benefit therefrom ; that towns are but municipal subdivisions of the State, carved out of — 277 — and created by it for the better and more convenient management of its affairs, and for the government of its subjects and the promotion of their interests, with no inherent or inalienable rights except such as are reserved by the Constitution ; that by it the right to constitute towns is conferred upon the Legislature, and the only absolute right it reserves to towns is that of selecting from its inhabitants a member of the House of Representatives, so that it may have a voice in the enactment of every law affecting its own and the welfare of the State ; that its officers, their appointment, powers, and duties, the class of its inhabitants who may have a voice in the control of its affairs, as well as the mode in which it shall be expressed, the duties which it must and which it may perform for the welfare of the public at the expense of its inhabitants by enforced taxation, as well as the property on which, and the methods by which, the enforcement may be made, — is all, except so far as limited by the Constitution, entrusted to the Legislature to prescribe and alter at will; and hence the act of March 28, 1867, though it conferred new rights and powers upon the defendant town, which, if exercised, would impose new duties upon its inhabitants, and prescribed — departing somewhat from former precedents in this respect — who of its inhabitants could exercise these rights and powers so as to bind the town, and the manner in which it must be done, is not unconstitutional. Its passage was but the exercise — whether wisely or unwisely is not for this court to decide — of the power inherent in the Legislature, of which the defendant formed a part through its representative. The objections urged by the defendant’s counsel assume that from some source unexplained because incapable of explanation, towns have a certain indefinable right to act in a given way by vote in a regularly warned town meeting, higher than the power of the Legislature from which it receives its existence and all its powers, and over which the Legislature has no control; or that the creature has powers other and higher than those conferred by its creator. The statement of the proposition suggests its fallaciousness. The very right claimed, viz., to act by vote in a regularly warned town meeting, is conferred and regulated by the Legislature. So too the officers who are to preside over some such meetings, guide — 278 — their deliberations, declare and record the result, even in some cases it may be their own election, are prescribed by the Legislature. Because the Legislature has been accustomed generally to prescribe a particular way for towns to act and determine their action, it is not therefore limited to that one way. The nintli article of the Declaration of Rights, cited by defendant’s counsel, that “ no part of any person’s property can be justly taken from him, or applied to public uses, without his own consent, or that of the representative body of the freemen”; and that,- “ previous to any law being made to raise a tax, the purpose for which it is raised ought to appear evident to the Legislature to be of more service to the community than the money would be if not collected,” — is not infringed by the act in question. “ The representative body of the freemen ” passed, in the passage of the act, upon the expediency of conferring the powers named in the act upon the defendant, and of the manner in which its inhabitants should exercise that power, and left to a majority of the resident tax-payers, both in number and amount of grand list, the determination of whether the purpose for which the tax was to be raised was of more service to community than the money would be if not collected. On general principles as well as the adjudged cases, we think the act is constitutional, and that the defendant was clothed with the power to aid in the construction of the enterprise named in the act. II. It is claimed that the first section of the act, which empowered the towns therein named “ to aid in the construction of the Montpelier and St. Johnsbury and the Essex County Railroads,” &c., confined the defendant to giving aid, if at all, to both of the roads named. This language is to be construed with reference to the then existing state of affairs. Each of these roads had then been incorporated. The towns empowered to grant the aid, were partly on the line of one of the roads and partly on that of the other. The corporations were distinct and separate, and had no common stock or bonds which the towns could subscribe for, purchase, or guarantee the payment of. Whatever aid was thus authorized, must be furnished to each road separately. — 279 — We think it a forced construction of the language of the act, to hold that the towns named were empowered to furnish aid- to both of the roads named, and could not aid one without also aiding the other, and that the intention of the Legislature and the fair interpretation of the language of this section, empowered the towns to aid either or both of the railroads named. III. The defendant claims, because it is found that the Montpelier & St. Johnsbury Railroad Company has abandoned the building of a part of the line included in its charter, that there has been such abandonment of the enterprise to which the defendant subscribed as to render its subscription void. The referee does not find that such abandonment was made before the defendant issued the bonds from which the coupons for which recovery is sought, were taken. It is not evident how such abandonment, made after or before the bonds were issued, could affect the right of recovery of the bona-fide holder for value. The subscription of the defendant was to the stock of the Essex County Railroad Company, which was authorized to build a railroad from the Connecticut River, in Essex County, to connect with the Connecticut and Passumpsic Railroad in St. Johnsbury. None of this enterprise to which the defendant alone subscribed has been abandoned. If it would have made it a condition on which the validity of its subscription depended, that the Montpelier & St. Johnsbury Railroad Company should also build its road to Montpelier, it should have embodied it in its subscription. All agreements, understandings, and conditions not inserted in the subscription are made of no effect by s. 5, c. 28, Gen. Sts. IY. The act of March 28, 1867, in conferring upon the defendant the power to aid in the construction of the Essex County Railroad by subscribing for its stock, provides that such subscription may be made “ when the assent in writing thereto of a majority of those paying taxes, both in number and amount of the grand list then in force, shall first be obtained by an instrument of assent,” dated, signed, and acknowledged, and specifying the grand list of the person assenting, and the substance of the — 280 — contract on which the subscriptioh is to be made. It also provides that the assent of no tax-payer shall be binding or counted in ascertaining the majority, unless the majority is obtained within ■ six months from the date of the first certificate of assent ; that in determining the majority, non-resident tax-payers and their lists shall be excluded ; that the purchaser of real estate conveyed subsequently to the taking of the grand list, may assent for the same ; and that the instrument of assent shall name three resident citizens and tax-payers who shall be commissioners to execute the subscription. It also provides that when such a majority is obtained to the instrument of assent, the commissioners shall append thereto a certificate, subscribed and sworn to, “ stating that the assent has been signed and acknowledged by such a majority as is required by the act; ” that they shall be sworn before entering upon their duties, and shall cause the instrument of assent, certificate of majority and of their oath, to be filed and recorded in the town clerk’s office, and a certified copy therefrom in the county clerk’s office, and that “ such instruments and certificates so executed and recorded, shall be conclusive evidence of the facts therein stated.” The defendant’s counsel insist that the plaintiff is not entitled to recover, because they contend that some of these conditions precedent to the right of the town to act, or of the commissioners to bind it, have not been complied with. It is found by the referee that the plaintiff is a bona-fide holder for value of the coupons upon which recovery is sought, a fact which has an important bearing upon most of the defendant’s objections under this head. The Supreme Court of the United States, in Knox County v. Aspinwall, 21 How. 539, and numerous subsequent decisions, has established, as well stated by Judge Dillon in his work on the Law of Municipal Bonds, that “ if upon a true construction of the legislative enactment conferring the authority, the corporation, or. certain officers, or a given body or tribunal, are invested with power to decide whether the condition precedent has been complied with, then it may well be that their determination of a matter in pais which they are authorized to decide will, in favor of the bondholder for value, bind the corporation.” In determining whether the majority required by the act under dis — 281 — cussion had been obtained, who were non-resident tax-payers, who subsequent purchasers of real estate, who administrators, guardians, &c., and many other things, were matters in pais, committed to, and necessarily decided by, the commissioners. But the act goes further than to entrust the decision of these matters in pais to the commissioners. It declares that their decision as set forth in their recorded certificate shall be conclusive. In Aldis v. Lamoille Valley Railroad Company et als., this court held the recorded certificate of the commissioners conclusive in regard to the fact whether the requisite majority had been obtained. In that case the proceeding was in behalf of tax-payers against the railroad company and officers of the town, to prevent the issue of the bonds. Much more in the case at bar, which is in favor of a' bona-fide holder for value, should their certificate be held conclusive of this fact. If every holder of a bond seeking to enforce its collection was by law required to go into all these matters resting in pais, and show that the requisite majority had been obtained, very little aid would the railroad company receive from the delivery by the town of its bonds, as no person would be found rash enough to invest in them. Such holding would defeat the very object of the act. The objections taken in regard to whether the requisite majority assented, must be held to be concluded by the recorded certificate of the commissioners. . The objection that the instrument of assent did not set forth the substance of the contract to be entered into by the town, in that it did not specify the rate of interest which the bonds of the town should bear, except that it should not exceed seven per cent., is untenable. The law fixes the rate of interest where none is specified in the contract. The town, by the instrument of assent and subscription having fixed the limit which the rate should not exceed, and by assuming to act under the act, having cast the duty of issuing the bonds in payment of its subscription upon its selectmen and treasurer, impliedly authorized them to fix the rate of interest within the limits prescribed. At least, these officers having fixed the rate, executed the bonds, made a record of them in the town clerk’s office, issued and allowed them to be put upon the market, it is now too late to raise this objection, or that a — 282 — vote of the town fixing the rate was necessary, against a bona-fide purchaser for value. The same, substantially, may be said in answer to the objection that the bonds were prematurely issued, and before the road was completed as required by the subscription. The duty of issuing the bonds was by the act cast upon the selectmen and treasurer. Of necessity they must judge when they were required to perform that duty. The town was also cognizant of the fact that they were being issued, and took no steps to prevent it. It did not speak when it might, and must now be silent when payment is demanded by a purchaser for value. We think the objection to the insufficiency of the certificate of the commissioners is without foundation. The insertion of the word “ as ” before the word “ signed,” renders it somewhat inartificial in expression, but does not affect its manifest meaning and the construction to be placed upon it. It is further objected that the record both in the town clerk’s office and in the county clerk’s office is defective, and that as the making of these records is a condition precedent to the making of the subscription, no valid subscription has been made. The defects principally relied upon are the failure to record but one of the instruments of assent, and the fact that the copy lodged in the county clerk’s office is certified by the town clerk to be a copy of the record in his office, rather than a copy of the original documents. The assent was obtained by the circulation of seven printed instruments, all exactly alike in contents, to which signatures were obtained. No one of these as signed 'was of any validity to bind the town. It took the signatures to all these to make the requisite majority. They were all filed with the certificate of the commissioners and their oath attached in the town clerk’s office. The town clerk recorded but one of the printed instruments, and recorded the signatures, acknowledgments, <fcc., of the others as if they were attached to this one. Nothing in substance would have been added if he had transcribed on the record each one of the printed forms. We think the record as made was a substantial compliance with the requirements of the act. It furnished all the required information to the inhabitants — 283 — of the town, and to purchasers of the bonds, and preserved as a record the instrument of assent with all its provisions and conditions, together with the signatures and acknowledgments of those who executed it. To have added the other printed forms would have added nothing to the legal effect of the record. If the record were defective, it might well be questioned whether the town could make such defects, occasioned wholly by the default of its town clerk, for whose acts it is responsible, available as a defence to a suit by an innocent holder of its bonds, especially after it had, with at least constructive knowledge of the defects, allowed the bonds to be issued and put upon the market for sale. But the decision is not placed upon this ground, as we hold the record as made in the town and the county clerk’s office a sufficient compliance with the act. I am informed by my associates who sat in Essex Co. R. R. Company v. Lunenburgh, supra, that such was the holding in that case, where a similar method of recording was adopted. It is claimed that the plaintiff is not entitled to recover because the coupons are signed by the town treasurer alone, and because some of them were taken from bonds signed by only two of the three selectmen. The act is silent in regard to the execution of the coupons. It is not therefore a violation of, nor a non-compliance with, the act, that they are not signed by the selectmen. The bonds provide for the payment of interest. The coupons only re-express this liability. In the absence of any provision of the act regulating their execution, the signature of any town officer, or any execution, by which they can be unmistakably identified as a part of the bond from which they are taken, is all that is necessary. This is accomplished by the signature of the town treasurer. The duty of-signing the bonds is imposed upon the selectmen in their official capacity. The Gen. Sts. c. 15, s. 92, make the acts of a major part of the selectmen as valid as though executed by the whole board. From the records in the town and the county clerk’s office, it appears that they were made before the executipn of the subscription by the commissioners. This is all that was necessary to be shown by the plaintiff, although the act requires that these records — 284 — should be made before the commissioners execute the subscription. An innocent purchaser of the bonds for value would, at most, only be required to examine the records themselves, to ascertain how that fact was. If from the records themselves it appeared that they were made before the subscription was executed, he may safely conclude the fact to be so, without further examination or inquiry, and safely make the purchase. The town, constructively, at least, if not actually, through its officers, charged with knowledge of how this fact appeared from the records, cannot lie by and see its bonds issued, put upon the market, and a record made of them in its clerk’s office, and then avoid its liability because its officer, charged with the duty of making the record truly, has made a false record, and so mislead the purchaser. It falls within the principle heretofore cited as having been established by the U. S. Supreme Court. By s. 1 of No. 172 of the acts of 1868, it was made the duty of the selectmen of the defendant, in the absence of the appointment of a special agent for that purpose, to manage, control, vote on, &c., the stock subscribed for. It is found by the referee that the selectmen of the defendant voted on the stock subscribed and paid for by it, at the annual meetings of the railroad company for 1871 and 1872; that the issue of the bonds began in 1871, and continued to 1876 ; that a record of the same was made by the town clerk ; that coupons from the bonds were paid by the railroad company, and returned to the town treasurer; and that the town treasurer took receipts from the railroad company for the bonds as they were delivered. From these acts of the town and its officers, it may be questioned whether the town did not acquiesce in and ratify the bonds, and waive any irregularity or informality which occurred in their issue. But it is unnecessary to decide this point. For other reasons already indicated, the proforma judgment of the County Court must be reversed, and judgment rendered for the plaintiff to recover the amount of the coupons reported, with interest and costs. Barrett and Dunton, JJ., dissent. Footnotes [*] Ante, p. 178.