The opinion of the court was delivered by
Yalentine, J.:
In this action (which is an original proceeding in mandamus, commenced May 26th, 1870,) the plaintiffs, the Land Grant Railway & Trust Company and the Union Pacific Railway Company, Southern Branch, (now Missouri, Kansas & Texas Railway Company,) seek to compel the defendants, the Board of County Commissioners of Davis county, to subscribe to the capital stock of the said Union Pacific Railway Company, Southern Branch, to the amount of one hundred and sixty-five thousand dollars, and to issue in payment therefor an equal amount of the bonds of said Davis county, and deliver them to the said plaintiffs.
We have already decided in the case of the Land [269]*269Grant Railway & Trust Company vs. the Board of Commissioners of Coffey county, that the said Land Gránt Railway & Trust Company have no legal capacity to trrnsaet any kind of business in Kansas, and therefore it follows that this action must be dismissed as to the said Land Grant Railway & Trust Company.
Whether the said Union Pacific Railway Company, Southern Branch, may proceed as the sole plaintiff, without making a new application for a writ of mandamus, we are not asked to decide. We shall therefore consider this action, as though commenced by the Union Pacific Railway Company, Southern Branch, alone.
1. A vote, in favor °Ór\utoS?s¡¡ft a con mi t. On the 15th day of July, 1867, the people of Davis county voted to subscribe to the capital stock of the Union Pacific Railway Company, Southern Branch, to the amount of one hundred and sixty-five thousand dollars, and issue inpayment therefor an equal amount of the bonds of said county, upon the following conditions:
“ 1. That one-half of the bonds shall be issued upon the completion of thé road, ready for the iron, ten miles from the commencement thereof — and none before : and that the other half shall be issued on the completion of the other half, ready for the rolling stock, making twenty miles from the starting point at Junction City.
“ 2. That the said road shall be commenced at Junction City, within one year from the date of the election.
“ 3. That it shall be completed through Davis county within two years from the date of the election.
“ 4. That said bonds shall not issue in case money or other aid is hereafter received by said Company, from the United States government.
[270]*270“ 5. That the county reserves the right to purchase the bonds, at any time after issue, at the market value.”
We will assume, for the purpose of this argument, that all of the foregoing conditions wére fullfilled, so that the County Commissioners of said county could have subscribed for said stock, and issued said bonds, if they had so chosen. But said Commissioners never did subscribe for said stock, and never agreed to subscribe for the same; and the Railway Company never asked them to subscribe, until about the commencement of this suit.
The questions arising in this case are — 1: Was the vote of the people of Davis county of itself, a contract between the county and the Railway Company, which the Railway Company can enforce? And if not — 2: Was said vote of itself, a proposition to the Railway Company rvhich the Railway Company could accept and make binding on the county? And if so, must the acceptance be a formal acceptance in writing, or a verbal acceptance, and when must the acceptance be made; or could the Railway Company accept the proposition by simply complying with the conditions of said vote ? But if there was no contract between the County and the Railway Company, then — 8: Did the County Commissioners by virtue of said vote, owe a duty, to subscribe for said stock, to any one, which they could be compelled to perform, or had they a discretion in the matter; and if they did owe such duty, to whom did they owe it; to the Railway Company or to the people of Davis county, and if not to the Railway Company, then is the Railway Company entitled to a writ of mandamus, to compel them to subscribe for said stock ?
The nature of a contract is pretty clearly defined iq [271]*271the case of The State, ex rel., v. Barker, 4 Kas., 385. A contract is “ the agreement of two competent parties, about a legal and competent subject-matter, upon a mutual legal consideration, with a mutuality of obligation.” (1 O. St., 657.) Taking this definition of a contract to be correct, it is .clear that no contract was ever made between the county of Davis and the Railway Company. No agreement was evermadeby either party, and neither party was ever bound.
2. Performance of certain acts or therauroldy a0coiKot.not It seems to be, partially at least, admitted by the plaintiffs, that the vote alone, of the people of Davis county, did not create a contract between the county j° and the Railway Company. But it is claimed that the vote was of itself a proposition to the Railway Company, which the Railway Company accepted by performing the conditions of the vote, and thereby a contract was created between the Railway Company and the county, and binding upon the county.
But the people of counties do not act in their primary capacity in making contracts. They act only through their legally constituted agents.- It is the commissioners of the county only that are authorized' to subscribe for stock in a railroad company, and not the people of the county, (laws of 1866, page 72, 73;) and a railway company cannot contract with a county in any way, except through the county commissioners.
The plaintiffs claim that this transaction is analogous to the case where a person offers a reward for the recovery of stolen property, or for some other such purpose. But there are at least two very clear distinctions. A. makes a proposition to the whole world, that he will pay one hundred dollars reward to the person who shall return to him his stolen horse. B. accepts the proposition (im* [272]*272pliedly at least) and returns the horse. Here, is a contract binding on A. But suppose A. authorizes his agent O. to make the proposition; but O. refuses to do so, and the proposition is never made; but notwithstanding that no proposition is ever made, B. returns the horse — is A. liable for the hundred dollars ? Or suppose that A. offers a reward to B. for building a house on B’s own land, and just such a house as B. wants, and just such a house as B. intends to build, whether the proposition is made or not; and B without ever accepting the proposition of A. (expressly,) builds the house — is A. liable ?
In this case the people of Davis county did not make any proposition to the railway company, but simply authorized their agents, the county commissioners, to make a proposition to said company, to subscribe for stock in the company, provided the company should build their road through Davis county, a thing which it must be presumed the company intended to do, whether the. stock was subscribed or not, as the corporation was created and organized among other things for that express purpose, long before said vote was had.
Suppose a railroad company is organized with a capital stock of three hundred thousand dollars, for the purpose of building a railroad from the town of A. to the town of B.
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The opinion of the court was delivered by
Yalentine, J.:
In this action (which is an original proceeding in mandamus, commenced May 26th, 1870,) the plaintiffs, the Land Grant Railway & Trust Company and the Union Pacific Railway Company, Southern Branch, (now Missouri, Kansas & Texas Railway Company,) seek to compel the defendants, the Board of County Commissioners of Davis county, to subscribe to the capital stock of the said Union Pacific Railway Company, Southern Branch, to the amount of one hundred and sixty-five thousand dollars, and to issue in payment therefor an equal amount of the bonds of said Davis county, and deliver them to the said plaintiffs.
We have already decided in the case of the Land [269]*269Grant Railway & Trust Company vs. the Board of Commissioners of Coffey county, that the said Land Gránt Railway & Trust Company have no legal capacity to trrnsaet any kind of business in Kansas, and therefore it follows that this action must be dismissed as to the said Land Grant Railway & Trust Company.
Whether the said Union Pacific Railway Company, Southern Branch, may proceed as the sole plaintiff, without making a new application for a writ of mandamus, we are not asked to decide. We shall therefore consider this action, as though commenced by the Union Pacific Railway Company, Southern Branch, alone.
1. A vote, in favor °Ór\utoS?s¡¡ft a con mi t. On the 15th day of July, 1867, the people of Davis county voted to subscribe to the capital stock of the Union Pacific Railway Company, Southern Branch, to the amount of one hundred and sixty-five thousand dollars, and issue inpayment therefor an equal amount of the bonds of said county, upon the following conditions:
“ 1. That one-half of the bonds shall be issued upon the completion of thé road, ready for the iron, ten miles from the commencement thereof — and none before : and that the other half shall be issued on the completion of the other half, ready for the rolling stock, making twenty miles from the starting point at Junction City.
“ 2. That the said road shall be commenced at Junction City, within one year from the date of the election.
“ 3. That it shall be completed through Davis county within two years from the date of the election.
“ 4. That said bonds shall not issue in case money or other aid is hereafter received by said Company, from the United States government.
[270]*270“ 5. That the county reserves the right to purchase the bonds, at any time after issue, at the market value.”
We will assume, for the purpose of this argument, that all of the foregoing conditions wére fullfilled, so that the County Commissioners of said county could have subscribed for said stock, and issued said bonds, if they had so chosen. But said Commissioners never did subscribe for said stock, and never agreed to subscribe for the same; and the Railway Company never asked them to subscribe, until about the commencement of this suit.
The questions arising in this case are — 1: Was the vote of the people of Davis county of itself, a contract between the county and the Railway Company, which the Railway Company can enforce? And if not — 2: Was said vote of itself, a proposition to the Railway Company rvhich the Railway Company could accept and make binding on the county? And if so, must the acceptance be a formal acceptance in writing, or a verbal acceptance, and when must the acceptance be made; or could the Railway Company accept the proposition by simply complying with the conditions of said vote ? But if there was no contract between the County and the Railway Company, then — 8: Did the County Commissioners by virtue of said vote, owe a duty, to subscribe for said stock, to any one, which they could be compelled to perform, or had they a discretion in the matter; and if they did owe such duty, to whom did they owe it; to the Railway Company or to the people of Davis county, and if not to the Railway Company, then is the Railway Company entitled to a writ of mandamus, to compel them to subscribe for said stock ?
The nature of a contract is pretty clearly defined iq [271]*271the case of The State, ex rel., v. Barker, 4 Kas., 385. A contract is “ the agreement of two competent parties, about a legal and competent subject-matter, upon a mutual legal consideration, with a mutuality of obligation.” (1 O. St., 657.) Taking this definition of a contract to be correct, it is .clear that no contract was ever made between the county of Davis and the Railway Company. No agreement was evermadeby either party, and neither party was ever bound.
2. Performance of certain acts or therauroldy a0coiKot.not It seems to be, partially at least, admitted by the plaintiffs, that the vote alone, of the people of Davis county, did not create a contract between the county j° and the Railway Company. But it is claimed that the vote was of itself a proposition to the Railway Company, which the Railway Company accepted by performing the conditions of the vote, and thereby a contract was created between the Railway Company and the county, and binding upon the county.
But the people of counties do not act in their primary capacity in making contracts. They act only through their legally constituted agents.- It is the commissioners of the county only that are authorized' to subscribe for stock in a railroad company, and not the people of the county, (laws of 1866, page 72, 73;) and a railway company cannot contract with a county in any way, except through the county commissioners.
The plaintiffs claim that this transaction is analogous to the case where a person offers a reward for the recovery of stolen property, or for some other such purpose. But there are at least two very clear distinctions. A. makes a proposition to the whole world, that he will pay one hundred dollars reward to the person who shall return to him his stolen horse. B. accepts the proposition (im* [272]*272pliedly at least) and returns the horse. Here, is a contract binding on A. But suppose A. authorizes his agent O. to make the proposition; but O. refuses to do so, and the proposition is never made; but notwithstanding that no proposition is ever made, B. returns the horse — is A. liable for the hundred dollars ? Or suppose that A. offers a reward to B. for building a house on B’s own land, and just such a house as B. wants, and just such a house as B. intends to build, whether the proposition is made or not; and B without ever accepting the proposition of A. (expressly,) builds the house — is A. liable ?
In this case the people of Davis county did not make any proposition to the railway company, but simply authorized their agents, the county commissioners, to make a proposition to said company, to subscribe for stock in the company, provided the company should build their road through Davis county, a thing which it must be presumed the company intended to do, whether the. stock was subscribed or not, as the corporation was created and organized among other things for that express purpose, long before said vote was had.
Suppose a railroad company is organized with a capital stock of three hundred thousand dollars, for the purpose of building a railroad from the town of A. to the town of B. and one of the counties through which the road is located, without the express consent of the railroad company, votes to subscribe for three hundred thousand dollars of stock in said company, when thejroad shall be completed ; and the company proceeds under their charter and builds the road ; is the company bound to allow the county to subscribe for said stock, which is all there is, and to deliver over to the county their charter, their franchises,- and all their property ? Suppose the company [273]*273in the meantime had sold a portion of their stock- to individuals, a half of it, or the whole of it, so that the •company could not deliver to the county the three hundred thousand dollars of stock; what then ? And suppose that the stock had advanced, and the bonds depreciated in value, so that the stock was worth the most— "would the railway company then be bound ? And if for any reason there is no contract to bind the railway company, is there any contract that can bind the county ? As a general proposition, (with but one exception that I now think of, and that is where a person of full age contracts with a minor,) a contract to be binding on either party must be binding on both. Those who may desire to pursue this question further, are referred to the following cases: 22 Howard, 365, 378, 379: 12 B. Monroe 144, et seq.: 22 Ills., 147, 153, et seq.; 18 Barb., 317, et seq.; 21 Wend., 139 et seq.
s. —and tender of stock do$s ?fl°9ecllangethe We do not suppose that the voluntary tender of the stock by the railroad company, at or before the making of the request upon the commissioners to sub- . - _ _ scribe therefor, and to issue the bonds of the county in payment thereof, in anywise changes the case. It is our opinion that there never was any contract between the county and the railway company; and therefore, as a necessary consequence, the county commissioners, who are the agents and the’ representatives of the county, and not of the railway company, owe no duty to the railway company; and as a further consequence the said commissioners will not be compelled on any application of the railway company to subscribe for said stock.
The writ of mandamus is refused.
All the Justices concurring.