Curtis v. County of Butler

*445 Mr. Justice WAYNE delivered the opinion of the court. This case has been sent to us upon a certificate of division upon two points, which occurred between the judges -upon the trial of it in the court below: 1. Had the commissioners of Butler county legal authority to issue the bonds given in evidence? 2. If they had, was such power or authority well exercised by two out of the three commissioners of the said county, or were the bonds signed by two of them binding? The act under which the bonds were issued was passed 9th February, 1853. The first, section enumerates the persons bj name who-were to become commissioners to open books, receive subscriptions of stock, aud to organizo a company by the name, style, and title, of the Northwestern Railroad Company, with 'all the powers, and subject to all the duties,- restrictions, and regulations, prescribed by an act'regulating railroad eompánies, approved the 19th of February, 1849, “so far as the same are not allowed and supplied by the provisions of this act.-” By the second section' of the act, the capital stock of the company was to -be divided into twenty thousand shares, of fifty dollars each, with the, privilege to be increased, if the -exigencies of the company shall require it, to any sum not exceeding two millions of dollars, as the president and directors of said company may deem expedient. By the third section, the company have the right to build and construct a railroad from' some point on.the Pennsylvánia or Allegheny railroad, at or west of Johnstown, by the way of Butler, to the Pennsylvania, and Ohio State line,' at some point on the western boundary line of Lawrence county, &c., &c., to connect with any railroad now or which might be thereafter constructed at either end, or at any intermediate point on the line or route thereof. For doing this, the company was authorized to borrow money to an amount not exceeding the capital stock of the company, upon-bonds to be issued by it whenever the president and directors might deem it expedient- to do so. The rat^e of interest upon the bonds was not to exceed.seven per cent., and they were to be convertible into the stock of the company, whenever the holders of it and the *446 company might agree to have that done. The sixth section of the act we need not speak of, as it relates to matters unconnected with the questions certified, or from which there is not any impeachment of the correct action of the company. By the seventh section, the counties through parts of which the railroad may pass were authorized to subscribe to the capital stock of the company, “and to make payments on such terms and. in such manner as may be agreed upon by the company and proper county.” But the amount of the subscription of any county was not allowed to exceed ten per centum of the assessed valuation thereof, (for taxes,) and before any subscription could be made for any county, the amount of each was to be determined and approved by a grand-jury of the county. Upon the report of a grand jury being' filed, the county commissioners were to carry it into effect, accordingly. Then, whenever-bonds of the respective counties were given in payment of subscriptions, the commissioners were prohibited from -selling them at less than at par; and such bonds the State exempted from taxation until the clear profit on the business of the railroad amounted to six per cent, on the cost thereof; and it was declared that the subscription ‘of the counties was to be held to be valid when made by a majority, of its commissioners. With this analysis of the act, under which the bonds sued upon were issued, we proceed to consider the points submitted to us. In the first place, after a careful examination of the act to which this act was made subordinate, - we do not find that anything was done by the commissioner’s inconsistent with it, or bearing upon the points certified. We think that the county commissioners had authority from the Legislature to execute the’bonds, and to pledge the faith, credit,, and property of the county, to pay them. Authority was given' by the- seventh section of the charter. It declares that the county shall have power to subscribe to the capital stock of the railroad' company, and to make payment in such mannér and upon such terms as may be agreed upon between the county and the company. It cannot be denied that this war t.u authority to the county *447 to make a contract of subscription, and that it contemplates a payment for it prospectively “by bonds which, when made in the name of any county, were to be held valid, if made by a majority of the commissioners of the respective counties.” The power to subscribe, the manner of payment, the limitation' upon the amount of subscription, the mode of carrying that out through the intervention of .a grand jury’s approval and report, the allowance of bonds tó be given in payment, the restriction of the same upon ■ the railroad company to which they were to be transferred, not to sell the bonds at less than par, the hindrance upon the issue of bonds of less than one hundred dollars, the exemption of them from taxation upon a contingency until the clear profits of the railroad shall amount to six per cent, upon the cost of it, are significant of what was intended. All of those particulars in this section of the statute are to be considered together in the construction of it. No one questions that the Legislature, then, had the power to incorporate such companies, and to allow the counties of the State to become interested in them upon the faith of county securities, for the .transportation of persons and things in all of the'vehicles used for commerce and the carrying trade, either by water, or by land upon ordinary' artificial roads. And that associations of persons might be incorporated for the construction of the latter, either by money already subscribed, or by.' money to be raised or borrowed by certificates of indebtedness, with certificates of interest attached, separable from the former, for the payouent of interest, payable at particular times. The objection- now, as we understand it, is not that the Legislature had not such a power. But it is said, in the exercise ' of it, that the railroad company, and the counties through which tlie road might, be constructed, had mistaken the terms upon which the counties might subscribe to the capital of -the railroad company, as to the manner for the payment of the subscription; in other words, that the counties-in issuing bonds with coupons had mistaken the'"special authority given to them by the Seventh section of the act, and had ma.de 'a different contract, which could not.be judicially' enforced. *448 That section is as follows: :‘That the counties through parts of which said railroad may pass shall be authorized to subscribe to the capital stock of the railroad company, and to make payment on such terms and in such manner as may be agreed upon by said company and the proper county': provided, that the amount of subscription by said county shall not exceed ten per cent, of the assessed valuation thereof, and that before any such subscription shall be made, that the amount thereof shall be fixed and determined by one grand jury of the proper county, and approved by the same; and that upon the report of such grand jury-being filed, the county commissioners may carry the same into effect by making in the name of the county the subscription directed by the grand jury: provided, that whenever the bonds of the respective counties are given in payment of subscriptions, that the same shall not'be sold by the railroad company at less than par value, and no bonds shall be in less amount than one hundred dollars, and that such bonds shall not be subject to taxation' until the cléar profits of said railroad company shall amount to six per cent, upon the cost thereof; and that all subscriptions made or.to be made in the name of any county shall be held and deemed valid if made by .a majority of the commissioners of the respective counties?’ Now, we freely subscribe to the rule that neither privileges, powers, nor authorities, can pass by an act of incorporation, unless they be given'in unambiguous words, and that an act giving special privileges must be construed strictly. That in such a case, where a sentence is capable of having two distinct meanings, that a construction must be given' to it most favorable to the public. But in applying these principles to this case, it'must be done with reference to the subject-matter contemplated by the Legislature as a whole, and not allow its manifested intention and design to be defeated by denying to the counties the only means of. payingJheir subscription, by which the main object could be accomplished. ■ ', .Why was it that the Legislature, .in drawing the section, directed that the subscriptions of the counties should be made upon teiyns and in manner as the railroad and the counties *449 might agree upon; that it limited, the amount of subscription upon an assessed valuation of the property of the county; that it'contemplated a taxation contingently upon the bonds of the counties, respectively, that they were to be given in payment of subscriptions, unless it had been its clear intention that the subscriptions were to be paid for by county bonds, when both company and county should make such a contract? Iliis, in our view, is not a case of ambiguity in -the power given, but one of as clear designation as could have been expressed. Nor was it a case in which the Legislature imposed a public burden. It was no more than giving to the people of the county a right to tax themselves for an anticipated advantage to arise from an expenditure of their own money.in the construction- of a railroad.. It was the concern of the county; the same as it would have been if the eourity had been -legislatively empowered to tax themselves to clear out a river for a better navigation, or for the cutting of a canal. Whether the allowance' for the issue of bonds for either of . those purposes will be judicious depends upon the subject and the regulations which the Legislature may impose for their execution. . In-our best judgment, applied as it has been to the 7th section of the act to incorporate the Northwestern Railroad Com.pany, in connection with a full consideration of the rules for the construction of the powers of corporations, we have been unable to find anything in the 7th, section equivocal or doubtful as to the power given- to the counties to make and to pay for their subscriptions to the railroad company, and nothing wrong as to that company having received them according to its charter. We therefore answer to the first point certified to this court, “that power was given in the act of the 9th February, 1853, and by the agreement of subscription and terms of payment, to the commissioners of Butler county, to make the instruments upon which the suit is brought, and to bind the county to pay them.” We will now proceed to the second point certified to this court: and if any power was given to issue bonds payable to *450 bearer, with coupons attached, it could not be exercised by two out of the three commissioners of the said county; and that these bonds having been signed by but two of the said commissioners are not binding on the county. We have examined the acts relating to who are designated to exercise th'e corporate powers of the county. By the act of the 15th April, 1834, the commissioners are to do so; and it is now claimed, as there are three, that all of them should have signed the bonds to make them binding upon the county. But by the 19th section of the aety it is declared that two of the Commissioners shall form a board for the transaction of business, and when convened in pursuance of notice or according to adjournment, sháll be competent to perform all and singular the duties appertaining to the office of county commissioners. Purdon’s Digest, 176. Before the act of 1834 was.passed, it was held in the case of the commissioners of Allegheny county against Becky, 6 S. and'R., page 166, that 'all powers conferred upon the commissioners might be legally executed by two, without the concurrence of the third. The same ruling will be found in Cooper and Grove v. Lampter Reansbey, 8 Watts, 128; 5 Binney’s Reports, 481. But why cite authoritiés, when the act in terms makes the bonds valid if made by a majority of the commissioners of the respective counties ? We therefore answer the second point certified, that the bonds upon which suit is brought, being signed by two out of the three commissioners, are binding upon the county of Butler.