City of Troy v. A. & N. Railroad

11 Kan. 519

• Court: Supreme Court of Kansas
• Decided: July 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

Statement of case. In March, 1870, one Frank M. Tracy, a member of the council of the city of Troy, claiming to be duly authorized by said city, made a subscription to the amount of $50,000 in the name of the city to the capital stock of the A. & N. Rid. Co. In payment of half the subscription, $25,000 of the bonds of said city were issued. Thereafter, and on the 21st of October 1870, the city an(j company made a contract by which the city agreed to sell its stock and pay $6,000, in five-annual payments, on being released from its obligations to issue the $25,000 remaining due on the subscription; provided that $25,000 of its bonds should be placed in the hands of trustees as security for the $6,000. As the time for the first annual payment drew near the city brought its action to restrain the treasurer from making such payment, to have the contract adjudged void, and the trustees enjoined from transferring the bonds to other parties, and required to return them to plaintiff for cancellation. A preliminary injunction was allowed by the district court, which was thereafter, set aside by this court. (A. & N. Rld. Co., et al., v. City of Troy, 10 Kas., 513.) On the final trial judgment was rendered in favor of the defendants, and now the city alleges error and. asks a reversal of this judgment.

Subscription to stock. Validity; requisites. Finding of court. 1. Records of city council; parol proof of proceedings. 2. Record and parol proof to be considered; effect. The question which first meets us is as to the validity of the original subscription. It is insisted that the subscription was void because unauthorized. As prerequisites are named, an ordinance, prescribing terms of subscription, and ordering a submission of the question to the voters; an election, resulting favorably to the subscription; and some act or resolution of the council designating the party to make subscription. Were these wanting ? Attached to the answer of the defendant Joy is what purports to be ordinance No. 48 of the city of Troy, certified by the city register under the seal of the city, and attested by the mayor to be a true and correct copy of such ordinance, as the same appears of record, which ordinance prescribed the terms of subscription and provided for an election; also, a similarly attested copy of the record of the city council showing a canvass of the votes cast at the election called by the ordinance; also, a similarly attested copy of the same record appointing Frank M. Tracy to make the subscription. The district court in its findings found that this ordinance was duly passed, and was legal and valid; that an election was duly and resulted in favor of the subscription ; that a canvass was duly made, and the result declared; that Frank M. Tracy was duly appointed to make, and did make, the subscription; that H. Boder was duly appointed to vote and did vote the city stock at the annual stockholders’ meeting. It also found that duly certified copies, attached as above stated to the defendant Joy’s answer, were made out by the city register, attested by the seal of the city and given to defendant. On the other hand it found that ordinance No. 48 had never been recorded in any book, but was simply filed in the office of the city clerk, as was the custom of the city, at the time. Also that no record was ever made showing Tracy’s or Boder’s authority, or showing that an election was ever ordered .or held except that minutes of the proceedings showing the above were kept by the register on slips and pieces of paper, but never entered in any books, and also that there was and is no' copy or record either on slips of paper or otherwise showing that ordinance No. 48 ever passed the city council, though the ordinance itself is on file in the office of the city register, and was by him brought into court. It also found that the Railroad Company was induced in part b} said subscription to change the original location of its road at an extra cost of $28,000. Turning now to so much of the testimony as is preserved in the plaintiff’s bill of exceptions, we find that one Leonard Smith who had been mayor of the city was permitted to testify over the objection of the plaintiff that at the time of the supposed passage of the ordinance the city had no book deemed suitable for recording the ordinances, and so they were kept on file until one should be purchased, and that the register was accustomed to keep the minutes of the council meetings on slips of paper. He further testified that ordinance No. 48 was passed unanimously by this council, that it was approved and published, and a certified copy furnished the Railroad Company; that an election was held, notice thereof having been given, and that the council met and canvassed the votes, and that a large majority was favor °f the subscription. Under these circumstances the question is presented by counsel, ag ^at constitutes the records of a municipal corporation, and how far parol testimony is admissible to prove the acts of such corporation. As the record does not purport to contain all the testimony no question can be raised here as to its sufficiency to support the findings. They must be taken as proven. The record is the best evidence of the proceedings of a city council, and yet it is but evidence. It may be evidence of such high order that it cannot be contradicted, it may import absolute verity like the records' of a court. But nevertheless it exists only as evidence of acts done, and not as the acts themselves. If it be lost or destroyed, the rights created, the duties imposed, and. the responsibilities assumed by the acts of the council, are not lost or destroyed. They exist, and can be enforced; and all that has resulted is a change in the kind and manner of proof. It was the duty of the register to make and preserve a record of all the proceedings of the council, a duty imposed by the charter of the city. (City charter, Private Laws 1860, p. 220, § 15.) It was a duty which he could have been compelled to perform at the instance of any party interested, or for the refusal to perform which any person injured thereby could maintain an action for damages. He exercised no supervisory or restraining power in behalf of the corporation or the public over the council, nor could they be prevented from managing the affairs of the corporation according to their judgment by his omission or refusal to record the evidence of their acts. If he omitted, they could require the omission to be corrected. If he refused, it was ground for removal. (State v. Allen, 5 Kas., 213.) Yet this is the record of the corporation, made by its own officers, and under its own control. If the council may not be thwarted by the omission or refusal of its clerk, a fortiori should a stranger dealing with it in good faith, and influenced to a large expenditure on the strength of an actual vote, not suffer in consequence of a like omission. It must be borne in mind that there is no attempt to show by parol that something was not done which the record shows was done. Dillon in his work on Municipal Corporations, p. 262, § 237, says: “But a distinction has sometimes been drawn between evidence to contradict facts stated on the record, and evidence to show facts omitted to be stated upon the record.. Parol evidence of the latter kind is receivable unless the law expressly and imperatively requires all matters to appear of record, and makes the record the only evidence.” And in the next section he adds: “Where the records of a municipal corporation have been so carelessly and imperfectly kept as not to show the adoption of a resolution, or other act of the city council, and there is no written evidence in existence, parol testimony may be admitted; e. q., to show that certain work was done by authority of the city, by proving the passage of a resolution of the council, the appointment of a committee to make the expenditure, their report after the work was done, and its adoption by the council.” See also Ross v. Madison, 1 Ind., (Carter,) 281; Bigelow v. Perth Amboy, 1 Dutch., N. J., 297; Bank v. Dandridge, 12 Wheat., 64; Hutchinson v. Pratt, 11 Vt., 402. In this last case Williams, C. J., uses this language: “When there is an omission to make' record, the rights of other persons acting under or upon the faith of a vote not recorded ought not to be prejudiced.”

In this case it must be noticed that there is not an entire destitution of written evidence. Copies of the ordinance, the proceedings of the council in the canvass of the votes, and the appointment of Tracy to make the subscription, duly certified by the register under the seal of the city,, and attested by the mayor to be true copies of the record, are made out and given to the railroad company at the time of the subscription. These certified copias are by statute made evidence both for and against the corporation. (Code, Gen. Stat., p. 701, § 379.) Among the files in the register’s office are found the original ordinance and the minutes of the proceedings of the council, written out on slips of paper. These correspond with the certified copies furnished the railroad company. These fragments may not come up to the true legal idea of a record, but they are certainly important items of testimony, when the city is seeking to impeach and have set aside the evidence ’of the proceedings of its council furnished by its own officers under its own seal. We think the court did not err in permitting the railroad company to support the certificate of the register, as against the silence of the record, by the files and papers of the register’s office and the parol testimony.

Location of depot. Contract; violation. Again, it is claimed that the ordinance provided as a condition of the subscription that the depot should be located at or near the center of a certain named quarter-section and never removed further from the court-house than that. The findings show that it was in fact over one-eighth of a mile further. But the ordinance also provided that the depot should be at the junction with the St. Joseph and Denver City Railroad, and it does not appear from the findings or testimony that this junction could have been made at any point nearer the center of the quarter-section, or the court-house. It also appears that the city after the location ratified and approved it.

3. Statutes; re-enactment; continuation. It is also claimed that the law under which the ordinance was passed, (§§ 51, 52 and 53, pp. 203, 204, Gen. Stat.,) was repealed ten days after the passage of the ordinance, and a law wholly different went into effect, (Laws 1869, p_ 108,) that left no power or authority to sustain the ordinance, and therefore the election, and all proceedings done under it were void. Since the decision in Gordon v. The State, 4 Kas., 489, the legislature has established a new rule as to the effect of changes in the statutes. The last sentence of the first paragraph of §1 of ch. 104, Gen. Stat., .999, reads: “The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” Now, the law of 1869 contained substantially all that was in the law of 1868, and also some additional provisions. The effect therefore of the statutory rule just quoted, if valid, was to continue the law of 1868 in force, with the additions made by the amendment of 1869. Now, ordinance No. 48, though drafted under the law of 1868, contains nothing which would conflict with or be superseded by the additional provision of the amendment of 1869; at least nothing which counsel have deemed of sufficient importance to call to our attention. It would seem therefore that the ordinance was not superseded or repealed by the amendment of 1869, and that an election under it might properly be held, and bonds issued. "We have heretofore considered the power of the legislature to establish such rules of statutory construction, and the effect of them. Gilleland v. Schuyler, 9 Kas., 569; The State v. Boyle, 10 Kas., 113; The State v. Crawford, supra, 32. It does not appear to us that § 16 of art. 2 of the constitution conflicts with this rule. The purpose of that was to make the amended section or sections contain the whole law as it was thereafter to exist, and not to prevent the legislature from continuing in force the unchanged portions of the amended law. The rule in effect says the amended law shall be retrospective in its operations so far as it is the same as the prior law. This, in a question like the one at bar, is within the legislative power.

5. Power of city to make contract to reduce its bonded liability. One question more deserves notice, and that - is as to the power of the city to make the contract of October 1870. It was really considered and decided when the case was nere beiore. (Jounsel press the points again, , , & ; and a single word or two may not be mappropriate. The subscription, as we have seen, was valid. The company had performed all the conditions required of it, and the city could have been compelled by mandamus to issue $25,000 of its bonds. The city relieved itself of this liability by the payment of $6,000 and the sale of its stock. The city had, by the terms of its charter, power to sue and be sued, to contract, and be contracted with, to purchase, hold ■and receive, and to sell, lease or otherwise dispose of, property, real, personal and mixed, within and without the city, and all other powers and privileges usually granted to incorporated bodies. (Private Laws 1860, p. 217, §§ 1, 2; Laws 1855, p. 838, § 1.) These powers were vested in the mayor and council; (§ 3, charter.) That a contract and settlement like that is within the scope of the ordinary powers of a private corporation, none will question. And it seems to us .that under the sweeping grants of the charter, without any trespass on the rule that a municipal corporation takes nothing by implication, a like power was vested in the plaintiff. See as to the powers of a municipal corporation in the settlement of claims, Dillon on Munic. Corp., § 398, and cases cited in the notes.

The judgment of the district court will be affirmed.

AH the Justices concurring.