Curtis v. County of Butler - 65 U.S. 435 (1860)


U.S. Supreme Court

Curtis v. County of Butler, 65 U.S. 24 How. 435 435 (1860)

Curtis v. County of Butler

65 U.S. (24 How.) 435

Syllabus

On the 9th of February, 1853, the Legislature of Pennsylvania passed an act entitled "An act to incorporate the Northwestern Railroad Company"

By the seventh section, the counties through parts of which the railroad may pass were authorized to subscribe to the capital stock of the company, and to make payments on such terms and in such manner as may be agreed upon by the company and proper county, and the subscription of the counties was to be held to be valid when made by a majority of its commissioners.

The County of Butler was one of the counties through which the railroad was to pass, and coupon bonds were issued, signed by two of the three commissioners of the county, in payment of a subscription of two hundred and fifty thousand dollars on the part of the County of Butler.

Other parts of the act required certain other things to be done, which were complied with.

The proper construction of this act is that power was given in the act and by the agreement of subscription and terms of payment to the Commissioners of

Page 65 U. S. 436

Butler County to make the instruments upon which the suit is brought and to bind the county to pay them.

The bonds upon which suit is brought, being signed by two out of the three commissioners, are binding upon the County of Butler.

In order to show the state of the case as it was presented to the circuit court, the entire record will be inserted, which was as follows:

"Jacob E. Curtis a citizen of the State of Virginia v."

"County of Butler, a corporation composed of citizens of Pennsylvania"

"Summons -- Debt -- Issued October 20th, 1857,"

"returnable the first Monday of November next"

"This was an action of debt brought on forty-nine coupons claimed to have been attached to certain bonds alleged to have been issued by the County of Butler to the Northwestern Railroad Company, in payment of an alleged subscription of the said county to the capital stock of said company. The declaration is in debt on the bonds and coupons, and the defendant pleaded nil debit."

"The cause came on to be tried before the Honorable R. C. Grier and the Honorable Wilson McCandless, judges of the said court, at Pittsburg, at May term, 1859."

"The plaintiff, to sustain the action on his part, gave in evidence the seventh section of the Act of the General Assembly of Pennsylvania approved the 9th February, 1853, entitled 'An act to incorporate the Northwestern Railroad Company,' as follows:"

" That the counties through parts of which said railroad may pass shall be, and they are hereby, severally authorized to subscribe to the capital stock of said railroad company and to make payments on such terms and in such manner as may be agreed upon by the said company and the proper county, provided that the amount of subscription by any county shall not exceed ten percent of the assessed valuation thereof, and that before any such subscription is made, the amount thereof shall be fixed and determined by one grand jury of the proper county, and approved by the same. Upon

Page 65 U. S. 437

the report of such grand jury being filed, the county commissioners may carry the same into effect by making, in the name of the county, the subscription so directed by said grand jury, provided that whenever bonds of the respective counties are given in payment of subscriptions, the same shall not be sold by said railroad company at less than par value, and no bonds shall be in less amounts than one hundred dollars; and such bonds shall not be subject to taxation until the clear profits of said railroad shall amount to six percent on the cost thereof, and that all subscriptions made or to be made in the name of any county shall be held and deemed valid, if made by a majority of the commissioners of the respective counties."

"The plaintiff also gave in evidence bond No. 1, as follows:"

"1,000 United States of America 1,000"

"No. 1 County of Butler, Pennsylvania No. 1"

" Bonds issued for stock in the Northwestern Railroad Company; faith of the county and stock of the company pledged."

" Know all men by these presents that the County of Butler, in the Commonwealth of Pennsylvania, is indebted to the Northwestern Railroad Company in the full and just sum of one thousand dollars, which sum of money said county agrees and promises to pay twenty years after the date hereof, to the said Northwestern Railroad Company or bearer, with interest at the rate of six percent per annum, payable semiannually on the first days of January and July, at the office of the Pennsylvania Railroad Company in the City of Philadelphia, upon the delivery of the coupons severally hereto annexed, for which payments of principal and interest well and truly to be made the faith and credit and property of the said County of Butler are hereby solemnly pledged, under authority of an act of the Assembly of this Commonwealth entitled 'An act to incorporate the Northwestern Railroad Company,' which said act was approved the ninth day of February, A.D. eighteen hundred and fifty-three."

" In testimony whereof, and pursuant to said act of the Legislature of Pennsylvania and resolutions of the county commissioners in their official capacity passed the 31st day of

Page 65 U. S. 438

March, 1853, the commissioners of said county have signed and the clerk of the said commissioners has countersigned these presents, and have hereto caused the seal of said county to be affixed, this first day of July, A.D. one thousand eight hundred and fifty-four."

" [Seal of county]"

"JAMES MITCHELL"

"JOHN MILLER"

"Commissioners of Butler County"

" THOS. ROBINSON"

" Clerk of commissioners"

"The plaintiff, further to maintain the action, gave in evidence a certified copy from the records of the Court of Quarter Sessions of Butler County, No. 16, March sessions, 1853, as follows:"

"Presentment of the grand jury recommending a subscription of two hundred and fifty thousand dollars to the capital stock of the Northwestern Railroad Company on the part of the County of Butler."

"And now, to-wit, March 29, 1853, petition filed setting forth as follows, to-wit:"

"To the honorable the Grand Jury and Commissioners of Butler County:"

" GENTLEMEN: The undersigned, commissioners of the Northwestern Railroad Company, request of the County of Butler a subscription of two hundred and fifty thousand dollars to the capital stock of the Northwestern Railroad Company."

" [Signed by the commissioners named in the act]"

"And now, to-wit, 29th March, 1853, presentment of the grand jury, as follows, to-wit:"

"GRAND-JURY ROOM, March, 1853"

"BUTLER COUNTY"

" To the honorable the judges of the Court of Quarter Sessions in and for the County of Butler:"

" The grand jury, to whom was referred the application of the Northwestern Railroad Company for the subscription of two hundred and fifty thousand dollars to the capital stock on the

Page 65 U. S. 439

part of the County of Butler, beg leave to report that they have given the subject the calm consideration that the importance would seem to demand; that they, the said grand jury, do hereby fix and determine, according to the provisions of the act of Assembly, the sum of two hundred and fifty thousand dollars, the amount that the Commissioners of Butler County may subscribe on behalf of the said county, and they earnestly request that they may make a subscription of that amount to the capital stock of the said company. The grand inquest further requests the honorable court to direct the finding to be duly filed, together with the application of the company, and that a certified copy of the same may be laid before the commissioners of Butler County for their consideration. All of which is respectfully submitted."

"[Signed by the Grand jury]"

"The plaintiff, further to maintain the issue on his part, gave in evidence 21 coupons of $30, and 28 coupons of $15, in form as follows, to-wit:"

" County of Butler. Warrant No. ___, for thirty dollars, being for six months' interest on bond No. ___, payable on the first day of July, A.D. 1857, at the office of the Pennsylvania Railroad Company in the City of Philadelphia."

" $30 THOMAS ROBINSON, Clerk"

"The plaintiff further offered testimony tending to prove that the said coupons were signed by Thomas Robinson and that he was the clerk of the commissioners at the date of the bonds, and it was admitted that the County of Butler was one of the counties through which said railroad was intended to pass, and if ever made would pass, and the plaintiff rested."

"The defendant, to maintain the issue on his part, then gave in evidence the following subscription and agreement between the commissioners of the County of Butler and the Northwestern Railroad Company, as to the terms and manner of payment, to-wit:"

" By authority of an Act of the General Assembly of the Commonwealth of Pennsylvania passed the ninth day of

Page 65 U. S. 440

February, A.D. one thousand eight hundred the fifty-three, entitled 'An act to incorporate the Northwestern Railroad Company,' and by virtue of the action of the Grand Jury of the County of Butler, had at the March sessions, A.D. 1853, at the court of said county, fixing and determining the amount of subscription to be made to the said Northwestern Railroad Company by said County of Butler, we, the undersigned, commissioners of said county, do hereby subscribe, for and in the name of the County of Butler, to the capital stock of the Northwestern Railroad Company, the sum of two hundred and fifty thousand dollars, being five thousand shares of said capital stock."

" It is understood that whenever the amount of this subscription is required from the County of Butler by the said company, it is to be paid in the bonds of this county, to be given in sums of not less than one thousand dollars each, payable in twenty years after date, or such other time after date as may be agreed upon by the Commissioners of Butler County and the said railroad company; the interest on said bonds to be paid semiannually, and said interest to be paid by said railroad company until such time as the Northwestern railroad is completed."

" In testimony whereof we have hereunto set out hands and affixed the seal of the said County of Butler, this 18th day of August, A.D. one thousand eight hundred and fifty-three."

" [Seal of the County]"

"THOMAS WELSH"

"JAMES MITCHELL"

"JOHN MILLER"

"Commissioners"

" Attest:"

" JOHN SULLIVAN, Clerk"

"Resolution passed by the board of directors of the Northwestern Railroad Company, August 16, 1853:"

" On motion of Mr. Cunningham and S. A. Purviance, it was:"

" Resolved, that the president is hereby requested to procure the subscription to the company from the counties of Lawrence and Butler, as proposed to be subscribed by them --

Page 65 U. S. 441

to-wit, two hundred thousand dollars by Lawrence County and two hundred and fifty thousand dollars by Butler County -- upon the following terms, to-wit, that the subscriptions be paid in the bonds of the respective counties of one thousand dollars each, payable in ___ years after date, with interest payable semiannually. the interest to be paid by the company until the road is completed."

" Attest: WILLIAM HASLETT Secretary"

"The defendant further gave in evidence tending to show that these bonds had been disposed of by the railroad company at less than their par value and that the plaintiff had notice of the agreement with the county as to the payment of interest by the company &c., and of notice to the plaintiff to show how he came by these instruments."

"Whereupon the defendant prayed the said court to instruct the jury, that no power is given in the said Act of Assembly of the 9th February, 1853, or by the said agreement of subscription and terms of payment, to the Commissioners of the County of Butler to make the instruments upon which the suit is brought, and thereby bind the said county to pay them, and that if any power was given to issue bonds payable to bearer, with coupons attached, it could not be exercised by two out of the three commissioners of the said county, and these bonds, having been signed by but two of the said commissioners, are not binding on the said county."

"Upon which prayers the said judges were dividend in opinion, whereupon the said defendant requested the said judges to certify, under their hands and seals, and cause to be certified under the seal of the said court, their division of opinion upon the said prayers of the said defendant, to the Supreme Court of the United States of America, which is accordingly done, and the clerk of the said circuit court is hereby ordered to certify the same, under the seal of our said court to the said Supreme court at its next session."

"In testimony whereof we have hereunto set our hands and

Page 65 U. S. 442

seals, this 25th day of May, A.D. one thousand eight hundred and fifty-nine."

"R. C. GRIER [SEAL]"

"WILSON McCANDLESS [SEAL]"

Page 65 U. S. 445



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