Blair v. West Point Precinct

5 F. 265

• Court: United States Circuit Court
• Decided: January 15, 1881
• Status: Published

Opinion

McCrary, C. J.,

{orally.). Upon the consideration of the demurrer.to, the amended petition, the following questions have been discussed by counsel: “First, whether West Point precinct, of the county of Cuming, state of Nebraska, is a corporate body and citizen of Nebraska, capable of being sued in this court; second, whether, under the act cf the general assembly of Nebraska of February 15, 1869, the material portion of which is set out in the foregoing statement, said precinct of West Point had power to issue bonds sued on to aid in improving the water-power in the Elkhorn river for the purpose of propelling grist-mills and other works of internal improvement in the said West Point precinct.”

In the view we have taken of the case it is only necessary to consider the first of the above questions. West Point precinct is not a corporation, and possesses none of the functions of a body corporate^ except such as are conferred upon it by the provisions of the act under which the bonds sued on were issued. It is simply a subdivision of the county for election purposes. It has no officers and no organization. It would be impossible to make legal service of process upon it. A judgment against it could not be enforced by execution or by mandamus, unless by the latter proceeding it might be reached through the officers of the county. The principle of law upon which the plaintiff in this case relies is undoubtedly sound, but it is not applicable. This principle is thus stated in 1 Dillon on Municipal Corporations, § 22: “If powers and privileges are conferred upon a body of men, or upon the residents or inhabitants of a town or district, and if these cannot he exorcised and enjoyed, and if the purposes intended cannot he carried into effect without their acting in a corporate capacity, a corporation is to this extent created by implication. ”

And in discussing a case quite analogous to the case at bar, that of Jordan v. Cass County, 3 Dillon, 185, the same judge said: “Undoubtedly the legislature designed that there should be a remedy upon these bonds, and if it were consistent with the legislative intent the court would he justified in holding, if necessary to afford an effectual remedy, that the township was created by implication, as to this particular matter, a body corporate, and as such liable to be sued.” This doctrine is supported by the following authorities: Russell v. Devon, 2 Term Rep. 672; Levy Court v. Coroner, 2 Wall. 501; Inhabitants v. Wood, 13 Mass. 192; Bradley v. Case, 3 Scam. 608; North Hempstead v. Hempstead, 2 Wend. 109; Bessey v. Unity Plantation, 65 Me. 347; Freeholders of Sussex v. Strader, 3 Harr. (N. J.) 117; Cumberland v. Armstrong, 3 Deverux, 284; Dean v. Davis, 51 Cal. ; Gaskell v. Dudley, 6 Met. 552; Hunneman v. Fire District, 37 Vt. 40, where a fire district, authorized to purchase an engine, was held to be a corporation; Angell & Ames on Corporations, §§ 77-79; Commissioner of Roads v. McPherson, 1 Spear, (S. C.) 218; Governor v. Allen, 8 Humph. 176.

An examination of these, authorities will show that it is only in cases where a bona fide -contract cannot be otherwise enforced, that courts will hold that a corporation has been created by implication. If the plaintiff could have no remedy whatever upon the bonds in suit, except by an action against the precinct, it would no doubt be held that he was entitled to that remedy. But we are clearly of the opinion that under the law by virtue of which the bonds were issued, and assuming that they are valid obligations, the plaintiff has a right of action against the county of Cuming, within the principles’of the decision in Jordan v. Cass County, supra. An examination of that case will show that the statute under which the township bonds, therein considered, were issued, was substantially like the one now under consideration. It provided that “it shall be the duty of the county court to make such subscription in behalf of such township.” The statute of Kansas, under which plaintiff’s bonds were issued, provided: “And the county commissioners shall issue special bonds for such precinct, and a tax to pay the same shall be levied upon the property within the bounds of such precinct.” It is true that in the case of Jordan v. Cass County there was a statement on the face of the bonds that they were issued by the county court on behalf of the township. No such statement appears upon the face of the bonds in the present case, but this makes no difference, because that provision vappears in the statute which is referred to upon the face of the bonds, and is to be considered as if made a part thereof.

The bonds, then, although voted by the inhabitants of the precinct, and to be paid by tax levied upon the property within the precinct, are issued by the proper officers of the county, and are, in legal effect, bonds of the county. The plaintiff’s remedy is by suit against the county; his judgment, when recovered, is to he enforced by mandamus against the officers of the county, commanding them to levy and collect upon the property within the bounds of the precinct the sum required for the payment of the judgment.

Upon this ground the demurrer to the amended petition must be sustained.

Dundy, D. J., concurs.