COMMISSIONERS OF JOHNSON COUNTY
v.
THAYER.
Supreme Court of United States.
*637 Mr. Nelson Cobb for the plaintiffs in error.
Mr. Wallace Pratt, contra.
*638 MR. JUSTICE HUNT delivered the opinion of the court.
The recovery by Thayer and others of the amount of the coupons sued upon is challenged upon various grounds.
1. It is contended that no authority to subscribe for the bonds was conferred by the vote of Nov. 7, 1865, for the reason that no particular railroad was referred to in the vote on that occasion. The question was submitted to the voters of Johnson County, in the form of an inquiry, whether the commissioners should be authorized to subscribe capital stock to the amount of $100,000, to aid in the construction of a railroad commencing at or near the Union Depot, on the south side of and near the mouth of the Kansas River, and near Kansas City; thence to Olathe, Johnson County; thence, in a southerly direction, through said county to the southern boundary of the State of Kansas. Assuming that the road to which the subscription was made met the terms required, it is insisted that the question of subscribing to the particular railroad company by name should have been submitted to the electors, and that there must have been an actual location of the road before the election was held.
We had occasion to consider a question similar to the latter branch of this objection in County of Callaway v. Foster, 93 U.S. 567, and held that the objection was not a valid one.
In that case the statute authorized a subscription by any county "in which any part of the route of said railroad may be." The road was not built, located, nor organized. The court there intimated that, where this language was used in reference to a road which was yet to be built, it could be applied to any county in which the road might by law be located.
The road to which subscription was in this case made was, in fact, located in the county of Johnson, and the work upon it commenced before any of the bonds were executed or delivered, was actually built through the county, and is now there operated. We think a previous location of the road was not required by the terms of the statute.
Was it necessary that the particular road to which a subscription was intended to be made should be described in the proposition submitted to the popular vote, or was the general language used in this case a compliance with the law?
*639 The following is the section of the act of Feb. 10, 1865, controlling the question:
"SECT. 1. That the board of county commissioners of any county to, into, through, from, or near which, whether in this or any other State, any railroad is or may be located, may subscribe to the capital stocks of any such railroad corporation, in the name and for the benefit of such county, not exceeding in amount the sum of $300,000 in any one corporation, and may issue the bonds of such county, in such amounts as they may deem best, in payment for said stocks: Provided, that such bonds shall be ussued only in payment of assessments made upon all the stocks of such railroad company, which bonds shall bear interest at a rate not exceeding seven per cent per annum, and shall be payable within thirty years. And the said board of commissioners shall elect one of their number, who shall not be a stockholder, to cast the vote of the county at any election for directors, or at any meeting of the stockholders of such company; and said board of commissioners shall annually levy and collect, at the same time and in the same manner that general taxes are levied and collected, a tax sufficient to pay the annual interest on such bonds, and to create a sinking fund for their redemption. But no such bonds shall be issued until the question shall be first submitted to a vote of the qualified electors of the county at some general election, or at some special election to be called by the board of county commissioners, by first giving twenty days' notice in some newspaper published and having general circulation in the county; or, in case there be no paper in the county, then by written or printed notices posted up in each election precinct; and, in submitting said question, said board of commissioners shall direct in what manner the ballots shall be cast. If a majority of the votes cast at such election shall be in favor of issuing such bonds, the board of commissioners of the county shall issue the same."
This language, in relation to the road to which the subscription may be made, is as general as words can make it. The board of commissioners may subscribe to the capital stock of "any railroad" which is or may be located in or near the county they represent, and may issue the bonds of the county in payment for said stocks. "But no such bonds shall be issued until the question shall be first submitted to a vote of the qualified electors of the county." In neither of these clauses is there a qualification that the particular road shall be *640 named in the submission, or that any detail shall be set forth. The burden of bonds shall not be imposed upon the county except by the previous assent of a majority of the electors. When the burden is assumed by the electors, it is quite reasonable that it should be left to the county board to select the particular corporation in which the stock shall be taken. That trust can be there executed as wisely and judiciously as at a mass meeting of the voters.
The electors here voted to take stock in a corporation to aid in the construction of a road "commencing at or near the Union Depot, on the south side of and near the mouth of the Kansas River, and near Kansas City; thence to Olathe, Johnson County; thence, in a southerly direction, through said county to the south boundary of the State of Kansas."
We think this was a sufficiently specific statement to be submitted to the voters for their approval or disapproval.
We cannot, however, think that this is a vital point, even if there was a defect in this respect. The question of subscribing for the stock and issuing the bonds for a road from the mouth of Kansas River to the south boundary of the State was submitted to the electors of Johnson County. Notice was given for the time required by the statute, and a full and fair vote was taken, so far as we are informed. The approval of the electors by their vote, at a meeting called for that purpose, is the object of the statute. Defects, irregularities, or informalities, which do not affect the result of the vote, do not affect its validity. The defect we are considering, if it is a defect, does not go to the question of jurisdiction, and does not impair the validity of the bonds.
The case of Lewis v. Commissioners of Bourbon County, 12 Kan. 186, is cited on this point. In that case, four questions were passed upon by the Supreme Court of Kansas: First, Was the presentation of a petition, signed by one-fourth of the qualified voters, a condition precedent to the valid action of the commissioners? Second, Did the failure to name the corporation in the propositions submitted to the electors avoid the whole proceedings? Third, A majority of the votes of the electors having been cast against the proposition to issue bonds, was the county board authorized to issue them? Fourth, Did the *641 subsequent submission, and the proceedings thereon, confer the authority to issue the bonds?
The court held that the first objection was cured by the act of 1868. The second and the third objections were held to be fatal, and that the case was not relieved by the proceedings referred to in the fourth objection.
The court did, in its language, hold that the objection raised in the present case, to wit, that the name of the corporation was not inserted in the proposition for the popular vote, was fatal. Had this been the only or an indispensable part of the decision, we should have been called upon to inquire whether the decision was one of that class of State decisions upon its own statute that was binding upon us. The other question, however, existing and decided in that case, was, in its nature, so exclusive and so controlling that any thing said or professed to be decided beyond it does not require much consideration. The court held that, in the exercise of its general jurisdiction, it had the power to inquire into the number of votes actually cast for and against the proposed issue of bonds; and, upon making such inquiry, it found and determined that, in fact, a majority of the votes cast were cast against the proposition. Upon this point all the decisions of this court, and, so far as we know, of all other courts, concur. If a majority of the electors cast their votes against the proposition to issue bonds, the entire foundation of the proceedings is gone. There is an absolute want of jurisdiction to proceed further in the matter, and an attempt to do so is void, as are all proceedings or issues based upon it. With this elemental failure existing in that case, other and further decisions tending to the same result are not to be regarded as authority.
The Gulf Railroad v. Commissioners of Miami County, 12 id. 234, is based upon the case above referred to, and follows it, without examination or discussion. It does not refer to the Curative Act of Feb. 25, 1868, which was held, in the Bourbon County case, not to be applicable to an election where a majority of votes was cast against the proposition, but which act, it was held, did relieve against the defect of the absence of the preliminary petition required by the statute. The court said that act was intended to sustain, and not to defeat, the will *642 of the people. This principle would have justified its application in relief of the defect before it, if there was such defect; and its consideration might well have altered the result. Both of these decisions were made after the bonds in this suit had been issued, and the interest upon them regularly paid for a considerable time. The road had been built as promised, the county of Johnson and its people enjoyed the anticipated benefits, and we are of the opinion that we are not bound to follow a decision which releases them from all the corresponding obligations. To this effect are the decisions of this court, made in the years 1865, 1871, and 1872. Gelpcke et al. v. City of Dubuque, 1 Wall. 175; Bulls v. Muscatine, 9 id. 571; Olcott v. The Supervisors, 16 id. 678.
The Curative Act of February, 1868, was intended by the legislature of Kansas to reach cases like the present, and to cover both the bonds issued before, as well as those issued after, its passage. It is as follows:
"SECTION 1. Whenever a majority of the persons voting at any election called by the board of county commissioners of any county have heretofore voted in favor of subscribing stock and issuing bonds to any railroad company or companies, the board of county commissioners of such county may subscribe to the capital stock of such railroad company or companies to the amount and on the conditions specified in the order of such boards of county commissioners in such cases, and pay such subscription, by issuing to each company bonds of such county at par, payable at a time therein to be fixed, not exceeding thirty years from the date thereof, bearing interest at the rate of seven per cent per annum, with interest coupons attached, whether such orders and elections, or either of them, have been in compliance with the statutes in such cases made and provided or not, or whether the proposition submitted at the election had was for the subscription of stock and the issuance of bonds to one or more railroad companies."
"SECT. 4. The provisions of this act shall be applicable in all cases where the election was held upon the subscription of stock and the issuance of bonds prior to the twenty-first day of January, A.D. 1868.
In the language before quoted, this act was intended to aid, and not to destroy, the proceedings in subscribing for stock *643 and issuing bonds. In this case, the election was held prior to the twenty-first day of January, 1868; and, although a portion of the bonds had been issued prior to the passage of the act, we are of the opinion that they are within its protection. It was intended to reach cases where the majority of the electors had voted in favor of issuing the bonds, "whether such orders and elections, or either of them, have been in compliance with the statutes in such cases made and provided or not."
It is contended, again, that, by an agreement made on the 19th of June, 1868, the stock of the county in the company was cancelled, and that, therefore, there was no consideration for the sale of the bonds.
By the agreement referred to, the county undertook to deliver to the road the $50,000 bonds, yet unissued, to sell and deliver its interest in the capital stock of the company, and in the mean time to cause its stock to be voted upon, as the company should direct, provided that the road should be built and completed to the southern boundary of Johnson County within eight months, and to the town of Olathe within five months, from date, the bonds to be issued, and placed in the hands of a depositary, to be delivered upon the performance of the agreement.
A completion of the road at an earlier period than was required (no time being specified in the original proposition), and at a probable increase of expense, seems to afford a good consideration for any lawful agreement on the part of the county. We fail to discern the force of this objection, or of the point connected with it, that the stock became thereby cancelled. The commissioners had authority to sell the stock, Compiled Laws of Kansas, 1862, 409; and, unless prohibited by law, an incorporation may become the holder of a portion of its own shares. City Bank v. Bruce, 17 N.Y. 507.
We do not regard the circumstance that the road was located and built a fraction of a mile distant from the town of Olathe as of any importance. It was a practical compliance with the requisition in that respect, and was accepted and received by the county as a satisfactory performance of the contract. The bonds were issued after the location, and the interest was paid from time to time without objection or complaint in that respect. *644 It is too late now to set up an objection which is an evident afterthought.
It is contended, further, that there is no bona fide holding of these bonds, and that all defences may have their full effect in this case.
"The court below finds that the plaintiff Thayer had notice of all the facts and circumstances connected with the issue of these bonds by Johnson County, and of the agreement of June 19, 1868, and of the facts with regard to the assessment of the stock by the railroad company and of its non-payment, and of the issue of stock as a bonus to the purchasers of the bonds of the railroad company, and of the facts with regard to the completion of the road to the town of Olathe; but his co-trustees had no such notice, nor did the purchasers of the first mortgage bonds have such notice, except so far as they are charged with constructive notice by reason of the knowledge of Thayer, one of the trustees."
It is a part of the case, that, on the first day of January, 1869, the railroad company executed to Nathaniel Thayer, F.W. Palfrey, and George W. Weld, the plaintiffs in this suit, a deed of trust conveying a large quantity of lands, and transferring, among other things, its subscriptions from towns and counties, including that now in suit, to secure the payment of $5,000,000 of its negotiable bonds to be issued by the said company, as therein particularly described; that, before the coupons now sued upon had become payable, the railroad company had issued those bonds, which are now outstanding and unpaid to the full amount thereof.
The question then arises, whether notice to one of the trustees in this deed of trust is notice to the holders of the mortgage bonds in such manner that, in a suit by the trustees to enforce payment of the county bonds, the character of a bona fide holder without notice is lost.
In Curtis and Others v. Leavitt, 15 N.Y. 194, the court say:
"If Graham, one of the trustees, was chargeable, as director of the company, with knowledge that there had been no previous resolution, notice to him was not notice to his cestuis que trust. He did not stand to them in the relation of an agent. He was selected and appointed as a trustee by the company, not by the cestuis que trust. *645 His powers and duties were prescribed by the company, not by the bondholders. There were, at the time of the execution of the trust-deeds, no bondholders, no cestuis que trust. It is a necessary attribute of an agency that it should be created by the principal... . In this case, as the relation of principal and agent did not exist between the bondholders and Graham, notice to him, or knowledge by him, that there was no previous resolution, was not constructive notice to the bondholders."
And, again, on the page following, it is said:
"The trustees are not to be regarded as the agents of the purchasers of the bonds and mortgages assigned to them. No consideration proceeds from them. They were mere assignees of those securities, coupled with no interest, in trust to hold them as security for the payment of all the mortgage bonds that should thereafter be sold or negotiated by the company... . Whoever purchased the mortgage bonds became purchasers of the bonds and mortgages so assigned as security for their payment, or of an equitable right to hold them as such security."
We think this is sound doctrine, and that it establishes the proposition that notice to Thayer did not operate to destroy the bona fide holding of the bondholders under the deed of trust in which he was named as one of the trustees.
We have noticed all of the objections which we deem of importance, and are of the opinion, upon the whole case, that the judgment should be affirmed; and it is
So ordered.