State ex rel. Central Railroad v. Town of Clark

Berry, J.1 By Sp. Laws 1868, c. 24, as amended by Sp. Laws 1869, c. 44, and Sp. Laws 1870, c. 49, any town in the county of Faribault was authorized to issue bonds to aid in the construction of any railroad running into such county. No limit was placed upon the amount of bonds which might be issued by any town, upon the determination of its voters. — 426 — The respondents in this case represent the town of Clark,, which is in the county of Faribault, and which is, in effect,, the party against which the present proceedings are directed. At a special town meeting, duly and legally held on December 3, 1873, said town of Clark voted to issue its bonds to-the amount of $30,000 to the relator, to aid in the construction of its railroad from the village of Wells to the city of Mankato. The town has issued and delivered to t-hé relator $14,000 of the bonds voted. It denies its liability to issue more, upon three grounds. 1. The first ground is that the relator is not a corporation legally constituted, and that, therefore, it has no existence. The relator’s original charter is found in Laws 1857, ex. sess., c. 49, being “An act to incorporate the Minnesota & Northwestern Railroad Company,” the name having been changed to “ The Central Railroad Company of Minnesota,”' under Sp. Laws 1869, c. 61, § 4. Section 16 of the original charter was 'amended by Sp. Laws 1858, c. 100, so as to-read as follows, viz. : “If said company shall not organize within two years from the passage of this act, and actually commence building said railway within three years from their said organization, and complete the same to New Ulm within seven years from said organization, and complete the whole of said railway within fifteen years from their said organization, then this act shall be null and void as to all that portion of said railway not completed within the above specified time or times. But this company shall not be dissolved by the non-completion of any portion of said railway, as to the portion completed at the time, but shall continue to exist and be valid to all intents and purposes for the parts or portions of said completed railway, and the said company shall continue to survive to that extent and no-further.” The corporation having been created in presentí by section 1 of the original charter, it had, under this section of the act of 1858, the right to complete some, portion of its, — 427 — road (which extended from Big Stone Lake, via New Ulm,. to the Iowa lino) within fifteen years from the time of its organization, which was to take place at some time after the passage of the act of 1858, on July 23, 1858. As to some portion of its line, the corporation would remain in existence until at least fifteen years from July 23, 1858 — that is, at least until July 23, 1873. In 1867 the corporation was, then, for aught that appears to the contrary, an existing corporation. Sp. Laws 1867, c. 17, which amended in many important particulars the original charter, was, therefore, passed while the original corporation ivas in existence, and, as an amendatory act, it is not obnoxious to that provision of our constitution which forbids the formation of corporations (not municipal) by special act. This disposes of the respondent’s point that the relator has no corporate existence, as it is based only upon the supposed repugnance of the act of 1867 to the constitutional prohibition just mentioned. 2. The second ground upon which the respondent resists the relator’s demand for further bonds is that the conditions of issue have not been complied with. By the vote of the town the bonds were to be issued only “ on condition that said company shall, on or before the first day of January, A. D. 1875, have completed, ironed, and equipped its line of road from said village of Wells to the city of Mankato, and have the same in operation for the transportation of passengers and freight.” The testimony in the case shows that “the relator, on or before November 23, 1874, graded, completed, ironed, and equipped its separate line of railway from the city of Mankato, in Blue Earth county, to a connection with the Southern Minnesota railroad, at a point in the said town of Clark, in Faribault county, between a fourth and a half a mile distant from said village of Wells in said town; and from said point the relator, from and after that date, ran all its trains on the track of the Southern Minnesota Bailroad — 428 — 'Company to the depot of the Litter company in the said village of Wells, and the relator, from said point to said ■depot, then and now has the joint use of the track and •depot of the Southern Minnesota Railroad Company, under satisfactory contract arrangements for the joint use and occupancy thereof by and between the two companies ; and ■ever since November 23, 1874, the relator has made up at Wells and run daily trains, excepting Sundays and a very few days when blocked by snow, for the transportation of the mails, passengers, and freight, to and from said depot from and to said city of Mankato, and intermediate points.” By Sp. Laws, 1870, c. 75, § 6, whenever the relator shall “ ‘ find it necessary or convenient to unite with any other railroad company * * * in joint use of any * * * •depot grounds', tracks, or other railroad property, it shall be lawful for them to agree upon the terms of said * * * joint use, * * * and any agreements made for that purpose may define the rights of the respective parties.” In view of the authority thus conferred by law, the facts ■disclosed by the testimony above recited show a substantial •compliance with the conditions upon which the relator was to be entitled to the bonds. The relator’s “line of road,” from Wells to Mankato, is “ completed, ironed and -equipped,” and “in operation for the transportation of passengers and freight,” so that the public enjoy the whole benefit of an independent line of railroad from one place to "the other. 3. In 1872 the constitution of this state was amended by •adding to article 9 the following section: “Section 14. The legislature shall not authorize any county, township, •city, or other municipal corporation, to issue bonds, or to become indebted in any manner, to aid in the construction ■or equipment of any or all railroads, to any amount that ■shall exceed ten per centum of the value of the taxable property within such county, township, city, or other muni — 429 — cipal corporation; the amount of such taxable property to-be ascertained and determined by the last assessment of said property made for the purpose of state and county taxation previous to the incurring of such indebtedness.” Prior tot-lie taking effect of this amendment the power of the legislature to authorize the issuing of bonds, or the incurring. of indebtedness, (in aid of railroads,) by any of the municipal corporations mentioned, was unlim-itod as respected the amount of bonds and indebtedness. Bonds to the amount of $14,000 having already been issued to the relator, it is made to appear that the issue of the remainder of the whole number voted will be an issue of an amount exceeding the 10 per centum limit prescribed by the constitutional amendment. In our opinion the respondent’s claim that the constitutional amendment referred to has any application to the facts of this case cannot be sustained. At the time when the amendment was made, (in 1872,) the laws under which the town of Clark was authorized to issue the bonds in question had been enacted, and were in full force. They placed no limit upon the amount of bonds issuable, save such as might be fixed by the voters. The language of the constitutional amendment is, “the legislature shall not authorize,” etc. In its plain, natural, and ordinary signification, the language is purely prospective, having no reference to what the legislature may have done in the past, but imposing a limitation upon its authority in the future. After a careful consideration of the ingenious and able argument of the respondent’s counsel to the contrary, we are unable to find any good reason for attributing to the amendment any other siguification. If it had been the design to subject all past legislation to the 10 per cent, limitation, it would have required so few words to express such design clearly that their absence is of the highest, significance. ' In our opinion the constitutional amendment has reference to future legislation only, and therefore no — 430 — application to the case at bar. A similar provision has received the same construction in Cass v. Dillon, 2 Ohio St. 607, in State v. Macon County Oourt, 41 Mo. 453, and in several subsequent cases in the states in which these decisions were made. To the cib inconvenienti suggestion that municipal corporations which are authorized to issue bonds ad libitum, by laws passed before the amendment, are by our constitution left in a perilous position, it may be answered that, where vested rights have not accrued, they can lie extricated by legislative repeal. This disposes of all the points made by the respondent, and our order is that a peremptory writ of mandamus issue, in accordance with the prayer of the complaint. Footnotes [1] G-ilfillan, 0. J., having been of counsel, did not sit in this case.