Connor v. Green Pond, Walterboro & Branchville Railroad

23 S.C. 427, 1885 S.C. LEXIS 119

• Court: Supreme Court of South Carolina
• Decided: September 26, 1885
• Status: Published

Opinion

The opinion of the court was delivered t>y

Mr. Justice McIver.

On December 23, 1882, the legislature passed an act entitled “an act to incorporate the Green Pond, Walterboro and Branehville Railway Company,” in which the County of Colleton was authorized to subscribe to the capital stock of said company the sum of $60,000, in bonds of said county, upon certain conditions prescribed in the act. The conditions were as follows: 1. “That $10,000 of the capital stock of said company is first subscribed by individuals or other corporations.” 2. That upon the petition in writing of a majority of the freeholders of said county, an election should be ordered by the county commissioners, at which the question of “subscription” or “no subscription” should be submitted to the qualified voters of said county. 3. That at such election “the majority of the ballots cast shall be for subscription.” The act goes on to provide that the managers of such election “shall make returns, count the votes, and meet at the court house at Walterboro and declare the result of said election, which result shall be certified in writing by said managers to the chairman of the board of county commissioners.” Provision is also made for the payment of said bonds by taxation.

A petition, purporting to be signed by a majority of the freeholders of the County of Colleton, was presented to the county commissioners, asking that an election be ordered, and on May-15, 1883, that body granted an order for an election to be held on June 30, 1883, to determine the question of “subscription” or “no subscription,” in which it is recited that it appeared satisfactorily to them that the condition requiring a petition for such election, signed by a majority of the freeholders of said county, had been complied with. In pursuance of this order, an election was held on June 30,1883, and the managers appointed to conduct said election certified in writing to the chairman of the board of county commissioners on July 3, 1883, that a majority of the ballots cast at such election was in favor of subscription, whereupon the board, after reciting this fact, passed an order “that upon sufficient evidence being submitted to us by the corporators of said railroad company, that the sum of $10,000 has been subscribed, agreeably to section 5 of said act, it will then be lawful for the County of Colleton to subscribe through us to the capital stock of said company the amount of sixty thousand ($60,000) dollars, as prescribed by said act.”

On August 30, 1883, this evidence was furnished to the board of county commissioners, and they then subscribed, in the name of the county, the said sum of $60,000 to the capital stock of said company and received therefor twelve hundred shares of said stock, and at the same time executed and delivered to the officers of the said railway company seven per cent, bonds of said county to the amount of $60,000, which bonds are still held by said company, a portion of the interest thereon having been paid by the county treasurer to the treasurer of the railway company-

On September 5, 1884, this action was commenced by the plaintiffs, as taxpayers of said county, in behalf of themselves and all the other taxpayers, against the railway company, the county commissioners, county treasurer, and county auditor of Colleton County, for the purpose of enjoining the railway company from disposing of the bonds, and that they be required to deliver the same to be cancelled, and for the purpose of enjoining the county auditor from assessing any tax for the payment of said bonds, and the county treasurer from paying out any taxes already assessed and collected for the purpose of paying said bonds, and for general relief. The grounds upon which the plaintiffs base their demands are: 1. That so much of the act of the legislature above referred to as purports to confer upon the county commissioners power to issue bonds of the county is in violation of section 20, article II., of the constitution, and is therefore null a,nd void, and consequently that the bonds would constitute no legal obligation of the county in the hands of any one. 2. That the said bonds being still in the hands of the railway company, they cannot claim the protection of bona fide purchasers for value without notice, and hence that if the bonds were issued without compliance with the prescribed conditions, they do not, while in their hands, constitute valid obligations of the county. 3. That the condition precedent to the issue of these bonds, which required a petition from a majority of the freeholders of said county before any election could be ordered, was not complied with, and the issue was therefore illegal.

The Circuit Judge held that the act was constitutional; that the railway company could claim the protection of bona fide purchasers for value without notice; and that even if they could not, the burden of 'proof was upon the plaintiffs to show a failure to comply with all the conditions prescribed in the act, and this they had not done. He therefore dissolved the temporary injunction previously granted and dismissed the complaint. From this judgment the plaintiffs appeal upon several grounds set out in the record, which need not be repeated here, because, according to our view, but three questions properly arise upon this record: 1. As to the constitutionality of the act. 2. As to the burden of proof. 3. As to whether the Circuit Judge erred in his finding of fact.

Section 20, article II., of the constitution, with which the act here in question is supposed to be inconsistent, reads as follows: “Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.” As we have said in Charleston v. Oliver (16 S. C., 56), upon the authority of Mr. Justice Cooley, “there has been, and ought to be, a general disposition to give a liberal construction to constitutional provisions like this now under consideration, rather than to.embarrass legislation by an unnecessary strictness of construGtion.” Hence, when a question, under this clause of the constitution, is presented for adjudication, we are bound to take a liberal and enlarged view, and if practicable bring the legislation which is assailed as unconstitutional within the limits prescribed by the supreme law of the land.

Now, looking at the act in question in this spirit, we do not see how it conflicts with the provision of the constitution which has been quoted. The “subject” to which the act relates is the Green Pond, Walterboro, and Branchville Railway Company, and that subject is undoubtedly expressed in the title. Nor do we find that the act relates to any other subject. As is usual with acts bearing such á title, after constituting certain persons a body politic and corporate by the name which they have chosen, it goes on to declare what such corporation may do, and how it may obtain the means for effecting the desired purpose — by receiving subscriptions to its capital stock. The fact that it also provides that a certain corporation, which otherwise would not have the power to do so, may subscribe to the capital stock upon certain prescribed conditions, does not, it seems to us, bring that portion of the act in conflict with the constitution. No new subject is introduced into the act, but the subject which all the while engages the attention of the legislature is the railway, which' necessarily includes any appropriate means for its construction. For, as is well said in San Antonio v. Mehaffy (96 U. S., 315), “when an act of the legislature expresses in its title the object of the act, the title embraces and expresses any lawful means to achieve the object, thus fulfilling the constitutional injunction that every law shall embrace but one object, and that shall be expressed in its title.”

In that ease the Supreme Court of the United States was called upon to decide a question identical in principle with the one now under consideration. There the legislature of Texas had passed an act entitled “an act to incorporate the San Antonio Railroad Company,” the twelfth section of which authorized the city of San Antonio to subscribe for stock and issue bonds therefor, and in an action on those bonds it was contended that the act was in violation of that clause of the constitution of Texas which declared that “every law enacted by the legislature shall contain but one object, and that shall be expressed in the title.” The court held that the act was not .in violation of the constitution for the reason given in the language quoted above. It is observable that in that case the same eases from the Texas court (San Antonio v. Gould, 34 Texas, 49; Geddings v. San Antonio, 47 Texas, 548), which are relied upon here by appellants’ counsel, were also cited before the Supreme Court of the United States.

, So in Supervisors v. People (25 Ill., 181), it was held that an act to incorporate a railroad company may constitutionally contain a provision authorizing counties to subscribe to its stock, or otherwise aid in the construction of the road. See, also, the case of Morton, Bliss & Co. v. Comptroller General (4 S. C., at page 442), where it was held that a provision in an act entitled “an act to provide for the appointment of a land commissioner, and to define his powers and duties” for the issue of bonds of the State to be used by the land commissioner in the purchase of lands, was not in conflict with sec. 20, art. II., of the constitution. AVe agree, therefore, with the Circuit Judge, that the act is not unconstitutional.

The next inquiry is as to the burden of proof. The appellants contend that inasmuch as the county commissioners had no authority to issue the bonds in question until all the conditions pi'escribed by the act had been complied with, that the burden of proof is upon the defendants in this proceeding. It is to be observed that this is not a proceeding to compel the county commissioners to issue the bonds in question, nor is it an action on the bonds. On the contrary, the action here is to compel the cancellation of the bonds after they have been issued, upon the ground that the conditions upon which alone they could be lawfully issued have not been complied with.

There can be no doubt that the county commissioners were, in the first instance, to determine the question as to whether the conditions precedent were complied with, and having formally determined that they were, and having acted upon such determination by issuing the bonds, it is quite clear that the plaintiffs can have no cause of action until they show a failure to comply with some or all of the prescribed conditions. For, in addition to the well settled rale that public officers are presumed to perform their duty until the contrary is shown, it is manifest that the only foundation for the plaintiffs’ action is the allegation that some of the prescribed conditions have not been complied with, and until that allegation is proved the plaintiffs have no cause of action.

As is said in 1 Greenl. Evid., § 78: “To this general rule, that the burden of proof is on the party holding the affirmative, there are some exceptions in which the proposition, though negative in its terms, must be proved by the party who states it. One class of these exceptions will be found to include those cases in which the plaintiff grounds Ms right of action upon a negative allegation, and where, of course, the establishment of this negative is an essential element in his case; as, for example, in an action for having prosecuted the plaintiff maliciously and without probable cause,” the want of probable cause must be proved. So here the very ground upon which the plaintiffs base their action is that there was no petition signed by a majority of the freeholders of the county, praying that an election might be ordered; and this, though a negative allegation, must be proved by the plaintiffs, as otherwise they would have no cause of action.

If this were a proceeding to compel the county commissioners to issue the bonds, or if it were an action by any one but a bona fide holder, without notice, upon the bonds, then the cases cited by the counsel for appellants would be in point,; but as that is not the nature of the proceeding, but on the contrary, its object is to set aside and annul what has been done by the county commissioners, it is incumbent on the plaintiffs to show that they have either acted without authority, or that they have exceeded the authority conferred upon them. We do not think, therefore, that there was any error upon the part of the Circuit Judge in holding that the burden of proof was upon the plaintiffs.

The only remaining inquiry is one of fact. Did the plaintiffs succeed in showing that all or any of the prescribed conditions to the issue of the bonds had not been complied with ? Upon this issue of fact the Circuit Judge found against the plaintiffs, and we cannot say that such finding was without any evidence to support it, or was manifestly against the weight of the evidence.

Under the view which we have taken, the question whether the railway company can claim the rights of a bona fide holder without notice, does not arise, and has not, therefore, been considered.

The judgment of-this court is that the judgment of the Circuit Court be affirmed.