Hopple v. Trustees of Brown Township

Sutlief, G.J. The proceeding by mandamus is authorized to compel any inferior tribunal, corporation or board, to perform an act which the law specially enjoins as a duty resulting from the ofiioe, trust or station, unless such duty depends — 323 — upon the judgment or discretion properly to be exercised by such party. In the present case, if the bonds or undertakings mentioned in the motion, are, in the hands of the present holder, valid and obligatory upon the township, the interest thereon being overdue, it is obviously the duty of the trustees of Brown township to proceed to levy the necessary tax for the payment thereof; but if the bonds are invalid, the duty does not exist. There is a view of this case presented that should be noticed at the outset; for, if correct, it will preclude the necessity of any particular inquiry into the circumstances under which the bonds have been issued. It is urged, with much force, on the part of counsel for the relator, that a long course of legislation, in this state, in favor of the issuing of such bonds, for the construction of our public improvements, has resulted in giving this kind of securities that public confidence and large circulation in the community peculiar tg commercial paper; and that good faith to those \tho have, by such legislation, been invited to advance their money upon these securities, as well as public policy, requires such a construction of these statutes as will not destroy the validity of the securities, and greatly impair public confidence. It is, therefore, urged that these public municipal corporations should be, to some extent, regarded as private moneyed corporations, and that the very act of issuing such paper, by the authorities of the township, authorized by legislation, under any circumstances, to make and issue the paper, should be held conclusive of the liability of the township upon the paper in the hand of a bona fide holder, for value. We have carefully considered these important suggestions, and the able argument of counsel in support of this view of the case. But we think the rules of law, well established by former adjudications upon similar questions, and held by our own and other courts as applicable to the facts here presented, forbids the adoption of the views thus urged as applicable to these securities. The validity of these securities, as contracts, must, then, — 324 — necessarily depend upon the general principle governing all contracts. There must, in the first place, have been parties capable to contract, and also a lawful subject matter of contract, as well as an actual contract made in the case, in crder to constitute a valid contract. It is not denied, in this case, that memorandums purporting to be the contract, are sufficient in form. But it is denied that there appears to have been parties capable of contracting in the matter. Whatever powers to contract are possessed by either of the parties to this contract, they being mere bodies politic and corporate, are necessarily conferred upon them by the legislature. The railroad company is evidently invested, by its charter and the several acts of the legislature referred to, with power to contract, in relation to the receiving of subscriptions and bonds, for the construction of its road — the object for which these bonds appear to have been executed to them. It re- • mains, therefore, only to ascertain, upon this point, whether the township trustees had the power to issue said bonds, on their part. If they had, they, too, were a party capable of contracting, or making the contracts under consideration; but, if otherwise, then it must follow that there are not parties to these contracts capable of contracting. The township, although denominated by the statute a body politic and corporate, is not invested with the general powers of a corporation. This class of aggregate persons, incorporated for mere municipal purposes, are often denominated quasi corporations, and are- invested, by the statutes creating them, with limited powers only, co-extensive with the duties imposed upon them. The same is true of the trustees, and other officers through whom they act. They, in like manner, only possess the powers expressly conferred upon them, as such body and officers respectively, by the statute, and, perhaps, where the statute is silent upon the subject, the authority, by necessary implication, which is requisite to execute the duties so imposed upon them. In the exercise of their powers, as trustees of the township, the trustees can take — 325 — nothing by implication, therefore, beyond the authority thus conferred by the statute. The liberality extended to the proceedings of those inferior jurisdictions, in the exercise of their powers, as respects regularity and form, does not extend to their powers to, in any respect, enlarge the same. It follows, therefore, that the trustees, by virtue of their powers as trustees, were not, by virtue of the statute organizing townships, and authorizing the election of trustees, and conferring their powers and prescribing their duties, authorized to make the contracts in question. But their powers, if possessed for that purpose, must have been conferred by some other act or acts of the legislature. It only remains, therefore, in determining this question of power, to ascertain whether the legislature has, by any other act of legislation, conferred the power upon the trustees, or made it their duty, to make the subscription or undertaking to this railroad company. The only acts of the legislature relating at all to the subject, are those set forth in the statement of the case. Do those statutes, either of them or when taken together, confer the power ? Upon recurring to the provisions of the several acts, it appears, in the first place, that the legislature, by the act of February 28, 1846, required the commissioners of any county in this state, whenever thereafter authorized to subscribe to the capital stock of any railroad, etc., to give at least twenty days’ notice, in one or more newspapers, etc., to the qualified voters of said county to vote, at the next annual election, to be held in the several townships, and wards, if any there should be, in said county, for or against the subscription; and to subscribe or forbear to subscribe according to the result of such vote being in favor of or opposed to the contemplated subscription. And by ihe act of March 21,1850, incorporating the Springfield'and Mansfield Railroad Company, the county commissioners of any county through which the road should be located, were authorized to subscribe any sum not exceeding fifty thou — 326 — sand dollars. And the next section provides, that if the com missioners shall not be authorized by the vote of the county to subscribe stock, etc., the trustees of any township through which the road may be located, shall be authorized “ to subscribe any sum not exceeding fifty thousand dollars, to the capital stock, and provide for the payment of said stock, in the same manner that the county commissioners aforesaid are authorized; provided that the total amount which may be subscribed to the capital stock of said company by any county, and the townships therein, on the line of said road, shall not exceed one hundred thousand dollars.” And the next section provides that no subscription shall he made by either the commissioners or trustees until a vote of the qualified voters shall have been declared in favor of the subscription in the manner provided by the act of February 28, 1846. And that act, as we have seen, requires the vote to be taken upon the notice therein prescribed, “ at the next annual election to be held in the several townships * * * in said county.” The charter of the company, therefore, only authorized the trustees to subscribe “ any sum of money not exceeding fifty thousand dollars,” upon the condition that “ the county commissioners * * * shall not be authorized by the vote of the county to subscribe.” This is clearly the extent of the power, by the language of the act, conferred upon the trustees. And there could be no question of any further power by implication, were it not for the proviso at the end of the section, and immediately following the express grant of power. That the proviso was intended to, and does, in fact, restrict the power otherwise conferred, is evident. For in case the county vote should be adverse to a county subscription, in that event each township through which the road should pass, would be authorized, but for the proviso, to subscribe fifty thousand dollars. And in order to restrict the proviso to this sole purpose, and thereby remove all appearance of intention to enlarge the powers of the trustees inconsistent with the previous express grant of their powers, it has been urged that a slight change of words should be made in the reading. It is suggested that, by a liberal rule of interpretation, it might be — 327 — thus read: “ that the total amount that may be subscribed in any county by the townships therein on the line of said road shall not exceed $100,000.” The proposed change in the two words indicated, is, it is true, only a slight change, and may quite probably thereby make the sentence conform to the intent of the legislature. It might, however, be very properly objected to the proposed change in the reading, that it is forbidden by the maxim, “ a verbis legis non est receden-dum.” And it may.well be doubted, whether the proposed change of the words is admissible as an exception to the very general and important rule, that statutes are to be read according to the natural import of their language. But even if the proviso be so read as to give full effect to the words used, there are no words in the proviso removing the express limitation of the powers of the trustees, to the failure of the commissioners being authorized to subscribe. And, as we have seen, the next section of the charter prohibits both the commissioners and trustees from subscribing until after the vote of the qualified voters at the annual election has been declared in favor of such subscription. And, inasmuch as no vote, taken at any annual election, has ever been declared in favor of such subscription, it is therefore impossible that by any construction of the proviso, power could have been derived by the trustees of the township under the charter. It is, therefore, to the act of March 25,1851, entitled “ an act to authorize special elections,” that we are to look for the powers claimed by the trustees, to have been derived by a special election held according to the provisions of that act. But under this act of 1851, it will be perceivéd that while the county commissioners are authorized without any restrictions to submit the question of subscription, upon due notice, to the qualified voters at a special election, the question of subscription by township trustees is only allowed to be submitted to the people of the township at a special election, in ease the county commissioners of the county shall not be authorized by vote to subscribe. It therefore follows, that inasmuch as the county commissioners of Delaware county. — 328 — in this case, were authorized by the voters of the county tc subscribe, and did subscribe, to the capital stock of the road, the township trustees were not authorized or empowered by the provisions of the act to submit the question to the people at a special election; since it is so provided, only in the case where the county commissioners had not been so authorized by the voters. It appears, therefore, that the special elections so held by the people of Brown township, both on the 17th of July, and on the 30th of August, 1851, were neither of them authorized by any existing statute; and the township trustees consequently were not empowered by any statute to subscribe to the capital stock of said company, and provide for the payment of the subscription. The issuing of said bonds by the trustees was therefore without any statutory authority or power on their part as such trustees. For it is a well-established principle, that where a power is claimed under a statute affecting a community, and requiring as a condition to the validity of the statute, that something should be done, or some event happen before it goes into operation, the statute •has, in such case, no force or effect until the event has happened, or the thing so required to be done is performed. This is unlike a case where the statute affects only one or more persons, designated by the act, in which case it is true the person or persons interested in the object may dispense with the preliminary condition, and claim the benefit of the statute, without requiring the performance of such condition in their favor. Savage and Barrington v. Walshe and Emanuel, 26 Ala. 619. It is, however, insisted on the part of the relator, that even “ if the trustees had no power to present this question with the alleged condition, yet the voters having decided for subscription, the authority in the trustees would thereby become absolute, and the condition void.” If the authority of the trustees rested upon the ground of agency merely, and all the parties now interested as taxpayers had voted in favor of the subscription, the argument would be of some weight. But in the present case it is not — 329 — pretended that more than a bare majority of the voters at the last election, voted in favor of the trustees subscribing stock on their behalf; while all the remainder of the voters of the township voted their refusal to suffer said trustees to subscribe. If, therefore, it could be shown that the same voters then acting, and no others, are now the taxpayers of said township, this would by no means be a case in which the taxpayers of Brown township would be, either in law or equity, bound, as having executed the contracts or bonds in question by their agents. And this conclusion must necessarily result from the fact that no one citizen, nor any number of citizens of a township, is authorized, either by statute or by the circumstance of their living in the same township or neighborhood, to obligate another citizen of the same township, or to subject his property to the payment of a contract which he has neither made nor consented to. We are referred, however, to .the case of Garrett et al. v. Van Horne, 7 Ohio St. Rep. 832, as maintaining a contrary doctrine. We .do not recognize that case as necessarily opposed to the views above expressed. The facts of that case were briefly as follows: Under the act of March 12, 1849, and January 16,1851, authorizing the trustees of Jefferson township to subscribe for the stock of the Steubenville and Indiana Railroad Company, an election was duly held (August, 1851), and a certificate of the election, in favor of subscription, duly filed in March, 1852,’recorded in the recorder’s office, and subscription made, and bonds issued by the trustees in April, 1852, and the amount of interest upon the bonds for 1856, was assessed, and paid into the treasury of the county ; and the auditor refused to give an order to the holders of the bonds for the same, inasmuch as the town authorities insisted that the bonds were void for the reason that the road was not in fact located and constructed through the township until after the 1st of April, 1852. The authority conferred in that case by the statute is thus expressed: “ The mayor and town council of the town of Steubenville, and all other incorporated towns through or near which said road may be located, * * * are each respectively hereby, authorized — 330 — to subscribe to tbe capital stock of said company,” etc. It thus appears that the authority to the town of Steubenville was conferred (upon vote, as expressed in the next section) to subscribe irrespective of the location of the road. Nor does the act require that other incorporated towns, li through or near which the said road may be located,” should withhold either their vote or subscription until after the location of the road. The power was therefore fully conferred by the statute. And its early exercise before the actual location, could only, after the location of the road, be objected to as an impropriety in time, or at most as a mere irregularity on the part of the town authorities, even if the location of the road “ through or near ” the town, related to Steubenville as well as to other towns. There was not, therefore, in that case, any want of power in the town authorities, at the time of their so subscribing to the stock and issuing the bonds. In delivering the opinion in that case, Judge Swan, it is true, makes use of the following language: “ When public officers exceed the powers vested in them by general laws, their acts are no longer official, but void; and this principle would be applicable to the case before us, if the trustees had derived their sole authority to make the contract under consideration from the law, without any interposition, sanction or authority from the taxpayers of the township. But in the case before us, the trustees derived their authority to subscribe for the stock of the railroad, and to issue the bonds, specifically from the taxpayers of the township,” etc. The language thus used, it will be perceived from a statement of the case, may be regarded rather as a dictum, than as at all necessary to support the decision made upon the facts of that case. It is certainly impossible to regard the issuing of the contracts or bonds, in this case, as a transaction either made or authorized by the present taxpayers of the township with the railroad company. For, as we have seen, in order to arrive at such a conclusion, it is necessary to show, not only that the present taxpayers are the same taxpayers, and w others, who resided in the township at the time of issuing — 331 — the bonds, but also that those who voted against the subscription thereby authorized or empowered the trustees to impose upon them the obligations expressed by the bonds. Indeed, the bonds do not profess to impose any obligation upon natural persons, but merely upon the township in its corporate capacity. Again, it is said that the bonds in this case are at least issued under the color of authority; and that third persons, and the public, in the absence of notice, have a right to presume a compliance with the conditions on the part of the trustees, and that the bonds were legally issued by them. If the defect in the bonds were a mere irregularity in the issuing of them, or if the bonds were those of a private corporation, there would be much force in the argument; but it certainly does not reach the objection, that the trustees in this case had no power to make a contract obligatory upon the township, a mere municipal corporation, at the time they made and delivered the bonds. It is also apparent that all persons receiving these bonds or securities were notified by the recitals upon their face, that their validity depended upon the statutory provisions and requisitions under which they were issued having been complied with, so far at least as to authorize their issue. And tne trustees were not, either by statute or by virtue of their office, constituted a tribunal, or authorized, to decide upon their own authority to issue the bonds, as against the township upon which the obligation was to be imposed. Nor can it be said that there has been any such acquiescence or conduct on the part of the taxpayers of the township in this case, even if it were conceded that could in such a case constitute an answer to the want of power to issue the bonds, which distinguishes this case from that of Treadwell v. Commissioners of Hancock County, 11 Ohio St. Rep. 191. And we are satisfied with the correctness of the principles of law as expressed in that ease, and again in the case of Goshen Township v. Shoemaker, etc., 12 Ohio St. Rep. 624. In accordance with the foregoing views in regard to the facts of this case, and the principles of law applicable thereto. — 332 — the motion of the relator must be dismissed, and judgment entered in favor of the defendants. Judgment accordingly. Peck, GholsoN, Brinkerhoee and Scott, JJ., concurred