Ruohs v. Athens

Snodsrass, J. Complainant brings this suit to recover of defendant, alleged to be an incorporated town of this State, the amount now due him upon certain interest-bearing bonds issued by defendant on October 1, 1888. There were twenty-two of these bonds, of the denomination of $1,000 each, payable to bearer October 1, 1008, with interest at six per cent., payable semi-annually, evidenced by coupons attached. They were issued to the Nashville and Tellico Railroad Company in consideration for stock subscribed by defendant. The bonds were purchased by complainant, who is a bona fide holder, and they were regularly issued and under proper legislative authority, and are valid and binding obligations of defendant if defendant is a legally incorporated city, or if, as between itself and complainant, it cannot rely on the defense of non-corporate existence now interposed. At the time of the issuance of said bonds, and for some years prior thereto, it was acting as a corporation. As such it issued the bonds through its proper officers, and under its corporate seal, with such recitations as were proper, and showed the legality of the bonds in case they were issued by the corporation duly organized. It did assume a legal existence as a municipal corporation, and legal power as such to issue the bonds. Legislative power thus assumed existed to — 23 — issue the bonds, if it were a corporation, and the first question is: Was it a corporation legally, as well as in fact, organized. It appears that the town of Athens was originally incorporated by the County Court of McMinn County, in the year 1860, under Code, §§1349 et seq., but that that organization of the corporation was superseded by the organization of the town as a municipal corporation under the Act of 1869-70, Chapter 69, Sections 39 et seq., pages 500 et seq.; that the Act of 1869-70 was repealed by the Act of 1879, Chapter 255, page 296, and said repeal was accepted and acquiesced in; that the t.owu was without municipal organization or government until June or July, 1881, when an attempt was made to organize said town into a municipal corporation under the Act of March 25, 1877 (Acts 1877, Chapter 121, amending Acts 1875, Chapter 92), which attempt was void because the certificate of the Sheriff holding the election was not indorsed on the application and registered' with it, as required by Section 8 of the Act of 1877, Chapter 121. This was the defense set up by defendants, the last Board of Mayor and Aldermen of the town, •averring, in consequence, that all acts under such .-attempted incorporation were void, together with further plea that they had resigned, and their resignations had been accepted before the filing of •complainant’s bill. We state the above facts respecting the incorporation and repeals and effort to re-organize and — 24 — failure, because without elaborating the propositions or debating the questions involved in the statement, we hold them to be settled as stated, and time forbids that we should attempt the detailed answer to the able and elaborate arguments of complainant’s counsel to the contrary, which these arguments so well merit. It is sufficient to say that it has been settled that the Act of 1879 repealed the charter of 1870, and this did not revive the incorporation of 1860. Burk v. The State, 5 Lea, 849. It is said this case should not be followed, that it was upon an agreed statement of facts, and, even if correct thereon, is erroneous on the real facts. It does not appear to be on an • agreed statement of facts, and we cannot look outside the opinion to determine that questiou. What appears in an opinion is the matter submitted to the Court and agreed to in consultation, and not that which might have existed and not been submitted. The Court concurs in an opinion as it appears, and is bound by it, and not by any thing outside of or beyond it. The record cannot be looked to to correct or change it. But besides, the opinion deals with the question of effect of repealing statutes which could not ’ have appeared differently to the Court then and now. In this opinion a litigation fairly involving the very questions now in issue was discussed and disposed of. . It is conclusive, and we have no disposition to review it. — 25 — Here tlie repealing Act of 1879 was held valid, but in this case it is again assailed as void under Section 17 of Article II. of the Constitution providing that “Acts which repeal, revive, or amend former laws shall recite in their caption or otherwise the title or substance of the law repealed, revived, or amended.” The Act is not open to this objection. It does in its- caption recite the title of the Act repealed. It is not necessary to pursue the argument of complainant’s counsel that this repealing Act is an exception because the title of the Act repealed conveyed no idea of .the iDurpose of the last Act. The Act by reference to that repealed, when the latter was read, did show its purpose. It would mislead no one who read the Act referred to. The town of Athens was therefore not incorporated when it made an effort to organize under the Act of 1877. That effort failed for the reason that the .certificate of the Sheriff holding the election was not indorsed on the application for charier and registered with it. The charter was therefore void by express provision of the statute. Acts of 1877, Ch. 121, Sec. 8, p. 146; Hooper v. Rhea, MS., Knoxville, 1885. It consequently, follows that the town of Athens was not a legally incorporated town when it issued the bonds in question. This brings us to the most serious question in the ease: Whether the defendant can now rely on the defense of no cor — 26 — porate existence, having acted as a corporation and issued the bonds while in apparent exercise of legal corporate power. This is a question of much difficulty. There is a line of most respectable cases on the negative of the proposition stated, but in none of them is the question determined that a corporation attempting to organize under a general law which declares that the charter shall be void for non-compliance with special provisions thereof, shall be held by estoppel or otherwise to bo a corporation. JBnt whatever may be the rule hold elsewhere, it is settled here in cases most maturely considered that a body or corporation having no legal existence has no legal power to issue bonds or obligations of a binding character, and that such body or corporation does not obtain a de facto status so as to require a direct proceeding by the State to avoid its existence or its4 acts, In the two opinions in Hooper v. Rhea, already referred to, the last proposition is settled, and the first is determined in certain cases in this State, cited and approved in case of Norton v. Shelby County, 118 U. S., 425; Lawyers’ Co-op. Ed., Book 30, p. 17-8. The rule here established, and which met the approval of that Court in that case, was that want of power to issue involved want of legal creation of the body which did issue the bonds, and that if there was no de jure office, created which could be filled, there could be no de facto officer filling it; if there was no de jure corpora — 27 — tion, it could have no de facto representation. This is a sound view, and we re-assert it as correct. Such a rule would not of course apply to irregularly organized corporations, or those which obtained such validity by special grant of the State or compliance with general law, as to be merely voidable organizations, and such as the State by direct proceeding could alone dissolve; but where the Constitution or the statute provides that acts done or omissions occurring in effort to organize a municipal corporation shall render the attempt to organize and the charter invalid and of no force whatever, it is not left to the Court to disregard this statutory or constitutional prohibition at the instance of a creditor deceived by the appearance of an organization. It was his duty to ascertain, first, is there a legal corporation; and, second, has it power to issue the bonds proposed to be sold. He must, at his peril, determine both questions for himself. The decree is affirmed with cost.