The principles settled in the recent and unanimous judgment of the Supreme Court of the United States, in the case of Thompson v. Lee County, would be decisive in favor of the relators, irrespective of other considerations equally fatal to the defendants. (3 Wallace, 327.)
The following are two of the propositions affirmed in that decision: 1. "A county, or other municipal corporation, has no inherent right of legislation, and cannot subscribe for stock in a public improvement, unless authorized to do so by the legislature. But the legislature of a State, unless restrained by the organic law, has a right to authorize a municipal corporation to take stock in a railroad or other work of internal improvement, to borrow money to pay for it, and to levy a tax to repay the loan; and this authority can be conferred in such a manner, that the objects can be attained either with or without a popular vote." 2. "If the legislature possess the power to authorize an act to be done, it can, by a retrospective act, cure the evils which existed, because the power thus conferred has been irregularly executed."
The precise purpose and effect of the confirmatory legislation, of which the defendants complain, was to cure all such defects as those, on which they rely to justify them in disobeying the statute. (Laws of 1863, 30; Laws of 1864, 9.) It was within the scope of legislative authority to modify the limitations and restrictions in the antecedent acts on this subject, to prescribe rules of evidence to govern official action, to dispense with prior conditions, and to charge the commissioners with defined and imperative duties. Our clear conclusion is, that it was the intention of the confirmatory acts to make the affidavits of consent, then on file in the clerks' offices of the respective towns and counties, however defective in form or substance, "valid and conclusive proof, in all courts and for all purposes, to authorize and uphold the respective subscriptions to the stock, and the issue of bonds to the amount specified in such proof for such towns respectively." This purpose is apparent from the further provisions, that no defects "in any of such affidavits shall invalidate such *Page 553 proof," and that "the bonds shall be valid and binding on said town, without reference to the form or sufficiency of such affidavits." (Laws of 1864, 911.) The commissioners were not left at liberty either to go behind the affidavits, or to allege their insufficiency. The statute relieved them from all responsibility, by providing that "such proof by affidavit shall be valid and conclusive to authorize such subscription to the stock, and the issue of the bonds to the amount specified in such proof." (Laws of 1863, 30, § 18.) The objection that these acts are in conflict with the federal Constitution has been disposed of by the decision of the ultimate appellate tribunal.
We are also of opinion that a mandamus was properly awarded, even on the assumption that the affidavits were only presumptive evidence of the consent required by the previous statutes. By the act of 1856, as amended in 1857 and 1859, the railroad commissioners appointed for the respective towns in the counties proposed to be traversed by the road, were authorized and required to subscribe for a limited amount of the stock, and to issue bonds at par in payment therefor, provided a majority of the tax payers, representing a majority in interest of the taxable property of such towns respectively, should consent thereto in writing; and the fact of such consent was to be proved by affidavits, filed in the appropriate clerks' offices, of the towns and counties respectively.
The affidavits showing such consent by the requisite majority, in number and interest, of the tax payers of the town of Summit, among other towns, having been duly filed, the commissioners were called on, in the fall of 1858, by one of the directors of the company, in respect to the proposed subscription. The amount of town subscriptions had not then reached a million of dollars, as the director informed them, and they declined at that time to subscribe. This information, on which one of the affiants professes to believe that such amount has not now been obtained, was given about seven years before the demand in 1865, on which the motion for a mandamus was founded. When the latter *Page 554 demand was made, no such objection was raised; nor is there any allegation, as matter of fact, in the defendants' affidavits, either that a million of town subscriptions has not been secured, or that the subscription exceeding that amount, sworn to in the moving affidavit, embraced other than town subscriptions.
The opposing affidavits show the form of the consents used in the town of Summit, and that in the course of taking signatures to one of these papers, an objection was made by Boughton and Levally, two of the tax payers, that if the town took stock before a sufficient amount was subscribed to construct the road, it would change hands, and the town would lose the amount. To obviate this objection, the person applying for their signatures, inserted the word "town" before the word "subscriptions." The appellants allege that a considerable number of persons signed this consent after the alteration. The fact alleged is not inconsistent with the truth of the affidavits filed by the town commissioners, showing an absolute consent by the requisite majority of the tax payers, in number and interest. It is reasonable to assume that the qualified consent was taken from those who would not consent, without qualification, to bring up the number of signers to the two-thirds required by the act, previous to the amendment reducing the requirement to a mere majority. The fact that a majority consented without qualification, is established by affirmative proof, and its force is not repelled by the further fact, that other tax payers either consented in a qualified form, or wholly refused their consent.
It is alleged that the word, interlined in the consent signed by Boughton and Levalley, appears now to be erased. There is nothing to justify the imputation that such an erasure has ever been made either by the company, or by its authority. The consents did not come to its hands until after they had been canvassed by the commissioners, and the affidavits had been filed in the appropriate offices. There was no motive for any alteration in their terms. They were not contracts, either with the State or the company. The statute did not authorize the signers either to subscribe for stock, to borrow *Page 555 money, or to issue bonds in the name of the town. The sole question submitted by the legislature to the tax payers was, whether they chose to consent to the exercise, by the commissioners, of the provisional authority with which they were invested, to subscribe for stock and issue town bonds for a limited amount, in aid of a public enterprise which so deeply concerned themselves, and the community in which they resided. Such a submission was a ready and convenient form of taking a popular vote, where the ballot would be inappropriate, as a mere numerical majority would not suffice, unless it represented also a majority interest on the assessment roll. The statute did not require the consents to be filed or preserved. The result once ascertained, each of them became functus officio. They might lawfully have been destroyed by the commissioners, but it seems they were afterward delivered to the company. Any subsequent alteration or erasure would have been as nugatory as the substitution of a new name on a ballot, after being canvassed in its original form, and after the result of the election had been declared.
The allegations in the opposing affidavits tend only to show that consents were signed in two different forms; and that in one of the forms thus used, the signers undertook to prescribe conditions unauthorized by law, to govern the commissioners in the exercise of a defined statutory authority, and in respect to which individuals were entitled to no voice beyond a simple assent or dissent. It follows from these views, that the mandamus was properly awarded under the previous acts, even if they had been unaided by the amendments of 1863 and 1864. The facts entitle the relators to the relief demanded. The matters set up by way of avoidance were insufficient to absolve the commissioners from the performance of their duty under the statute. They chose to accept the authority conferred on them by the successive acts, and to disobey their specific injunctions, though both proceeded from the same sovereign authority.
It is insisted that, though they were empowered to issue the bonds, they were under no legal obligation to exercise *Page 556 the power. From the nature of the authority, the duty was plainly mandatory; and the statute, which declared that, upon the filing of the affidavits, the commissioners were "authorized and required to issue the bonds," left them no alternative but compliance with the law, which they chose to disobey.
It is claimed that a peremptory mandamus should not have been awarded in the first instance. In this view we cannot concur. There is no occasion for an alternative writ, when there is no substantial conflict between the parties as to the truth of any material fact essential to the determination of their legal rights.
The order of the Supreme Court should be affirmed.