1. A general statute of Tennessee required the county courts,
when thereunto authorized by a popular vote at an election held for
the purpose, to subscribe for stock in a railroad company. A
special statute was subsequently passed which, without requiring
the submission of the question of subscription to a popular vote,
conferred power on the county courts of the counties on the line of
a particular railroad to make, and on the company to receive, a
subscription for its stock.
Held that the special statute
is not in violation of the provisions of sec. 8, art. 1, or of sec.
7, art. 11, of the Constitution of Tennessee of 1834,
infra, p.
103 U. S.
525.
2. A county, having lawful authority, issued its bonds in
payment of its subscription to a railroad company. Between the
latter and another company a consolidation was about to take place
upon condition that the county court would, on an extension of time
being granted, levy and collect a tax sufficient to pay the amount
due on the bonds. The county court accepted the proposition and
gave the requisite assurance. The consolidation thereupon took
place.
Held that the county was estopped from denying the
validity of the bonds in the hands of a
bona fide holder
to whom they were transferred for value by the consolidated
company.
The facts are stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is a writ of error from a judgment in favor of the Rogers
Locomotive and Machine Works against the County of
Page 103 U. S. 524
Tipton, in the State of Tennessee, for the principal and
interest of fifty bonds of $500 each, dated Jan. 1, 1869, and
payable on the first day of January, 1873, to the Mississippi River
Railroad Company or bearer, with interest from date at the rate of
six percent per annum.
Each bond, signed by the chairman of the Tipton County Court and
countersigned by its clerk, recites that it is
"issued under and by virtue of sec. 6 of an act of the
Legislature of the State of Tennessee, passed Feb. 25, 1867,
amended on the twelfth day of February, 1869;"
also, that
"a special tax is levied, by authority of law, upon all the
taxable property in the County of Tipton, to meet the principal and
interest of these bonds, collectible in equal installments, running
through five years, as the bonds themselves mature,"
and further that
"This is one of four hundred bonds, all of the same denomination
and rate of interest, issued by Tipton County in payment of a
subscription of $200,000 to the Mississippi River Railroad Company,
made by the county court of said county under the authority of the
acts above recited -- these bonds, transferable by delivery and
redeemable in five years at the rate of $40,000 a year, commencing
Jan. 1, 1870."
When the foregoing acts were passed, there was in force a
general statute under the provisions of which counties,
incorporated cities, and towns could subscribe stock in railroads
upon certain terms and conditions, one of which was the previous
approval of the legal voters of such county, city, or town, at an
election called and held for the ascertainment of their will. These
special acts, in connection with the Act of Nov. 5, 1867, for the
benefit of the Mississippi River Railroad Company, authorized the
county courts of counties on the line of that company's road (among
which was the County of Tipton) to subscribe to its capital stock
without requiring a submission of the question of subscription to a
popular vote -- the majority of the justices in commission being
present and a majority of those present concurring.
The validity of those acts is questioned here, as it was in the
court below, upon the ground that they are unconstitutional, and
therefore gave no authority to make the subscription or issue bonds
in payment thereof.
Page 103 U. S. 525
The provisions of the Constitution of Tennessee (that of 1834)
to which it is supposed they are repugnant are sec. 8 of art. 1,
and sec. 7 of art. 11, the first of which declares that
"No freeman shall be taken, or imprisoned, or disseised of his
freehold, liberties, or privileges, or outlawed, or exiled, or in
any manner destroyed or deprived of his life or property except by
the judgment of his peers or the law of the land,"
and the last of which provides that
"The legislature shall have no power to suspend any general law
for the benefit of any particular individual, nor to pass any law
for the benefit of individuals inconsistent with the general law of
the land, nor to pass any law granting to any individual, or
individuals, rights, privileges, immunities, or exemptions, other
than such as may be, by the same law, extended to any member of the
community who may be able to bring himself within the provisions of
such law,
provided always the legislature shall have power
to grant such charters of incorporation as may be deemed expedient
for the public good."
It is contended that these special acts are in violation of sec.
7, art. 11, of the state constitution in that they authorized a
limited number of counties to subscribe to the capital stock of a
particular railroad corporation, and also because they dispensed
with the previous sanction of a popular vote, as required by the
general statute regulating railroad subscriptions by counties,
incorporated cities, and towns, and further that being partial and
special laws, inconsistent with the general law upon the subject of
municipal subscriptions, they do not constitute "the law of the
land" within the meaning of sec. 8, art. 1, of that Constitution.
The argument in behalf of the plaintiff in error is that the power
reserved to the legislature in the proviso to sec. 7 of art. 11,
"to grant such charters of incorporation as may be deemed expedient
for the public good" is limited in its exercise by the prohibitions
contained in the body of the same section, and that a charter
conferring upon a particular railroad company or upon particular
municipal corporations special privileges and immunities not given
by the general law was inconsistent with those prohibitions, and,
besides, was not a "law of the land" within the meaning of sec. 8
of art. 1.
Page 103 U. S. 526
These propositions have received at our hands that consideration
which their importance confessedly demands, and if we err in the
conclusions reached, it will not be the fault of able counsel, who,
both in oral and printed arguments, have pressed upon our attention
every suggestion which seems to have any bearing upon the question
presented for determination.
The earnestness with which they have asserted their positions to
be sustained by adjudications of the supreme court of the state has
made it necessary for us to examine with great care a very large
number of the reported decisions of that learned tribunal. If, when
the acts in question were passed, the general assembly was without
power, under the constitution, as interpreted by the highest court
of Tennessee, to enact a special law authorizing a designated
number of counties, without a previous vote of the people, to make
subscriptions of stock to a particular railroad running through
such counties, our duty is to accept that construction of the
fundamental law of the state. But if there was no such
contemporaneous or fixed construction, this Court, as was the court
of original jurisdiction, is under a duty imposed by the
Constitution of the United states, from the performance of which it
is not at liberty to shrink, to determine for itself what were the
legal rights of parties at the time the bonds in suit were
issued.
It would extend this opinion to an improper length should we
extract from the numerous decisions of the state court cited by
counsel so much of their language as seems pertinent to the
questions before us. We must therefore content ourselves with
stating only the general doctrines to be deduced from the adjudged
cases, some of which are cited in a note to this opinion.
*
Prior to the case of
Wallace v. Tipton County (to which
we
Page 103 U. S. 527
will hereafter refer more particularly), the following rules or
principles seem to have been established by repeated adjudications
in the supreme court of the state,
viz.:
That a law, which did not alike embrace and equally affect all
persons in general or all persons who exist, or may come into the
like state and circumstances was a partial and special law, and
therefore not "the law of the land" within the meaning of the
Constitution of 1796, from which was taken sec. 8 of art. 1 of the
Constitution of 1834;
That sec. 7 of art. 11, prohibiting the suspension of a general
law for the benefit of any particular individual or the passage of
any law for the benefit of individuals inconsistent with the
general laws of the land or the passage of any law granting to any
individual or individuals, rights, privileges, immunities, or
exceptions other than such as may by the same law be extended to
any member of the community who may be able to bring himself within
the provisions of such law, is a statement, in condensed form, of
the construction which the supreme court of the state had in
several decisions placed upon the phrase, "the law of the land," as
used in both the Constitutions of 1796 and of 1834;
That nevertheless the authority of the legislature to create
corporations with special rights and privileges existed as an
incident of sovereignty; that a law creating a corporation and
granting a franchise was more in the nature of a contract than a
"law of the land" in the sense of the constitution, and upon that
ground the right given to a bank by its charter, granted in 1832,
to take a greater rate of interest than was allowed by a general
statute to individual citizens was held not to be obnoxious to the
constitution upon the ground that it was not a general law, or "the
law of the land."
That the proviso in sec. 7 of art. 11 of the Constitution of
1834 was inserted "for the purpose of enabling the legislature
thereby to grant exclusive privileges which, but for the proviso,
would be prohibited by the body of the section;" that the power to
create corporations was not curtailed or restricted by the general
prohibitions in that section, but only by the positive provisions
to be found in other parts of the Constitution.
Page 103 U. S. 528
That prior to the adoption of the Constitution of 1834, the
supreme court of the state suggested doubts as to whether the
taxing power, being legislative in its nature, could be
constitutionally conferred upon the subordinate municipal
corporations or civil divisions of the state, and that for the
purpose of removing those doubts, the convention which framed that
constitution incorporated into it sec. 29 of art. 2, which declares
that
"The general assembly shall have power to authorize the several
counties and incorporated towns in the state to impose taxes for
county and corporation purposes respectively in such manner as
shall be prescribed by law, and all property shall be taxed
according to its value upon the principles established in regard to
state taxation."
That the construction of a railroad to or through a county or
incorporated town is, in the one case, a county, and in the other a
corporate purpose for which the legislature may invest such county
or town respectively with the power to impose taxes.
That under sec. 29 of art. 2, the legislature could, by special
act, confer upon the mayor and aldermen of an incorporated town,
directly and exclusively (and, consequently, upon the county court
of a county), the power to subscribe railroad stock without first
or at all submitting the question of subscription to a vote of the
inhabitants of such town.
Such were, beyond question, as we think, the established
principles of the constitution as announced by the highest judicial
tribunal of the state up to the decision in
Wallace v. Tipton
County, to which reference has already been made. These
doctrines, it must be conceded, would sustain the statutes of 1867
and 1869 against the objections urged. But it is contended that the
decision in that case is a direct authority against the
constitutionality of those acts, and should control our
judgment.
That case deserves special examination. It was a suit commenced
in 1873 in an inferior state court of Tennessee by certain
taxpayers of Tipton County against the county court of that county,
the Paducah and Memphis Railroad Company (a corporation lawfully
created by the consolidation, in 1872, of the Mississippi River
Railroad Company, with the Paducah
Page 103 U. S. 529
and Gulf Railroad Company, a Kentucky corporation), and the
local collectors of Tipton County engaged in the collection of
taxes which had been levied to meet the bonds constituting the
issue of $200,000 to the Mississippi River Railroad Company under
the aforesaid acts of 1867 and 1869. The object of that suit was to
enjoin the collection of such taxes upon the ground that those acts
were unconstitutional and void. In May, 1874, certain citizens of
other states, holders of a portion of the Tipton County bonds,
were, upon their own application, made parties defendant in that
suit. They thereupon filed a petition for its removal to the
circuit court of the United states and, as to them, the opinion of
the court states, the suit was removed. The railroad company, by
and amended answer, disclaimed all interest in the suit and
informed the court that it neither held nor owned any of the bonds,
but that they were held and owned by others who had paid value
therefor. Thenceforward it was a suit, practically if not
exclusively, between parties who had no interest in enforcing the
collection of the county's bonds. It was finally determined without
the presence of any of the holders of the bonds. Waiving any
question as to whether, under the act of Congress, the whole suit
was not removed to the federal court, it is sufficient to say that
in accordance with the prayer of the taxpayers, a decree was
entered which was by the supreme court of the state in all respects
affirmed. Although the case was determined in the supreme court at
its September Term, 1875, it has not, that we can ascertain, been
published in its reported decisions, and we are not, therefore,
advised of the precise grounds upon which the acts of 1867 and 1869
were assailed in argument as being in conflict with the
constitution. But the opinion of the court discloses the fact that
those acts were held to be repugnant to sec. 8 of art. 1, and sec.
7 of art. 11, of the state constitution upon the ground that while
the general law of 1852 regulating railroad subscriptions by
counties, towns, and cities, required a popular vote as a condition
precedent to any authority to make subscriptions, the special acts
of 1867 and 1869 permitted a few counties upon the line of the
Mississippi River railroad, by their respective county courts and
without a submission of the question to the people, to subscribe to
that
Page 103 U. S. 530
company's stock. No comment whatever is made in the original
opinion, and very little in the opinion on the rehearing, upon the
scope or effect of the proviso in sec. 7 of art. 11 giving or
reserving to the legislature the power to grant such charters of
incorporation as it deemed expedient for the public good. But it is
to be assumed that the court did not regard that proviso as
materially affecting the conclusion reached. If there had been no
decision of the state court subsequent to that of
Wallace v.
Tipton County on the subject of municipal subscriptions under
special statutes, we should feel greatly embarrassed by the
circumstance that the judgment of the circuit court could not, upon
this branch of the case, be sustained except by disregarding that
decision.
But all difficulty, we think, is removed by the decision of the
state court in the more recent case of the
Knoxville and Ohio
Railroad Company v. Hicks, determined in 1877. Unless we
mistake altogether the import of that decision, it is inconsistent
with the doctrines of
Wallace v. Tipton County, and, upon
the point now before us, practically overrules the latter case.
In
Knoxville and Ohio Railroad Company v. Hicks, it was
a question whether an act passed in 1852 exempting the capital
stock, dividends, roads, and fixtures of the Knoxville and Kentucky
Railroad Company from taxation until the stock paid a dividend
equal to the legal rate of interest was in conflict with the
Constitution of 1834. That constitution declared (sec. 28, art.
2)
"That all lands liable to taxation held by deed, grant, or
entry, town lots, bank stock, &c., and such other property as
the legislature may from time to time deem expedient, shall be
taxable."
In view of that constitutional injunction, the case was a very
strong one for the application of the prohibitions against special
and partial laws contained in sec. 7 of art. 11, if such
prohibitions had any application whatever to charters of
incorporation granted by the legislature. But the court, after
stating that the convention of 1834 comprised among its delegates
some of the ablest lawyers the state ever had, who were familiar
with the principles of the
Dartmouth College case and knew
that the legislature, under the previous constitution,
Page 103 U. S. 531
had, without question, exercised the power of granting charters
with total or partial exemptions, said:
"With these facts prominently before the convention, if it was
their purpose to restrict the power of the legislature, one should
expect to find such restriction expressed in unequivocal language.
But the only direct provision in regard to the power of the
legislature in respect to charters of incorporation is in the
proviso to sec. 7 of art. 11 to the effect that the restriction
upon the power of the legislature to grant special privileges,
immunities, and exemptions was not to be construed to affect the
power of the legislature to grant such charters of incorporation as
they might deem expedient for the public good, thereby leaving the
power as it previously existed.
See Hope v. Deaderick, 8
Hum. 1. If it had been the purpose of the convention to restrict
the power of the legislature in this particular, this would
certainly have been the appropriate place to insert the
restriction; but so far from doing so, we find only the proviso
above referred to, which was intended to exclude the idea that the
first clause of the section against the granting of special
privileges, immunities, or exemptions was intended to limit the
power of the legislature in regard to granting charters of
incorporation. From this the conclusion seems necessarily to follow
that the legislature was still left the power to pass laws creating
bodies corporate with all the rights, privileges, immunities, and
exemptions which it was usual to vest in such fictitious persons
under the general principles previously recognized, and, as we have
seen, the power in question was previously recognized by the
general law and the authorities of the state. We do not say rights,
privileges, or immunities might be granted inconsistent with other
positive restrictions of the constitution."
The court then proceeds to consider the language of sec. 28 of
art. 2, already cited, in reference to taxation, and says:
"On the other hand, this section may well be construed as having
no reference to the property of corporations to be created, and as
leaving the power of the legislature in this regard as it stood
before. This is the more natural construction when we take this
section in connection with the clause before referred to, and find
that no express restriction is placed upon the power conceded to
have previously existed in the legislature, in respect
Page 103 U. S. 532
to corporations, in that clause which refers directly to the
power to grant such charters."
The chief significance of the decision in the last case lies in
the explicit declaration by the court that the power expressly
granted to the legislature in the proviso the seventh section of
article eleven, to create corporations with such charters as, in
its judgment, were expedient for the public good, was not limited
or restrained in its operation by the prohibitions in the same
section against special rights, privileges, immunities, or
exemptions -- in other words, that the legislature, as to
corporations, could grant special rights and privileges which, but
for the proviso, might be deemed obnoxious to the prohibitory
clauses of that section. And in that view we concur.
The case of
McKinney v. Overton Hotel Co., 12 Heisk.
(Tenn.) 104, cited by counsel for plaintiff in error, is not
adverse to this conclusion. The main question there was as to the
constitutionality of an act, passed in 1860, authorizing the hotel
company to issue mortgage bonds bearing a greater rate of interest
than was allowed by the general law of the state. It was held that
sec. 7 of art. 11, giving power to grant such charters of
incorporation as the legislature deemed expedient for the public
good, must be construed in connection with sec. 6 of the same
article, which imposed upon the legislature the duty of fixing the
rate of interest, and declared that the "rate so established shall
be equal and uniform throughout the state." The decision was that
the legislature, in creating corporations under sec. 7, could not
grant to them "powers or rights expressly forbidden by any other
clause of the constitution." Consequently, the rate of interest
fixed by the legislature was applicable to corporations as well as
to individuals. The language of the court, in connection with prior
decisions, upon the general subject of corporations justifies the
conclusion that the act of 1860 would not have been declared void
had not the Constitution of 1834 expressly required the rate of
interest to be equal and uniform throughout the state.
Looking, then, as well at the language of the constitution as at
the course of decision in the Supreme Court of Tennessee up to the
time the acts of 1867 and 1869 were passed, and giving full effect
to its latest utterance, to which our attention
Page 103 U. S. 533
has been called, and remembering also that the power given to a
municipal corporation to subscribe to the stock of a railroad
company may be also a right and privilege of that company,
County of Scotland v. Thomas, 94 U. S.
682;
Wilson v. Salamanca, 99 U. S.
499;
Empire v. Darlington, 101 U. S.
87,
101 U. S. 91,
our conclusion is that those acts were not repugnant to the
constitutions of the state by reason of the authority they confer
on a limited number of counties to make, and on a particular
railroad corporation to receive, a subscription of stock, nor
because they dispensed with the previous assent of the people of
such counties expressed at a popular election.
It remains to inquire whether, in view of the evidence, the
circuit court committed any error of law either in giving or
refusing instructions to the jury.
Certain facts should be stated as explanatory of the
instructions which were given to the jury. Upon the trial, evidence
was introduced in behalf of the county tending to establish
"fraud, moral coercion, intimidation, and bribery in the
procurement and issuance of the bonds in suit in this case upon the
part of the Mississippi River Railway Company,"
and that such corrupt practices were not known to the county
court until February, 1875. On the 30th of September, 1871, at a
meeting of the board of directors of the railroad company, a
resolution was offered by one who at the time was a justice of the
peace of Tipton County, which, after reciting the failure of the
county to provide means for the payment of its bonds and coupons,
designated E. Norton, as agent of the company, to make the
following proposition to the county, namely:
"That this company will grant an extension of time for the
payment of said bonds and interest, so that the said payments shall
be extended to the period of ten years from the date of the bonds,
in ten annual installments, instead of the time they now have to
run, this extension to apply to all bonds which this company owns
or controls. But this proposition should be made on condition that
the County Court of Tipton County shall immediately levy a tax, and
proceed to its collection, for the amount now due under this offer,
and that they shall each year levy, collect, and promptly pay over
the amount to fall due each year, as the same falls due during the
whole period
Page 103 U. S. 534
of this proposed extension, and in case of a failure to levy,
collect, or promptly pay over said annual amount, then the
remaining bonds to become due according to their original
terms."
This proposition was presented to the county court by Norton at
its October Term, 1871. Several of the justices were then present
who had attended the July meeting of 1870, on which latter occasion
the court, by resolutions, entered upon its records, declared that
the bonds had been issued without lawful authority and were not
binding upon the county. Across the record of those resolutions
was, however, subsequently written the word "void," but by whom or
when so written does not appear.
In addition to this evidence, the substantial facts upon which
the case went to the jury are indicated in the following charge
given by the court at the request of the plaintiffs:
"That if you credit the testimony, and from it believe that Mr.
Norton, as president of the Paducah and Gulf Railroad Company, in
October, 1871, appeared before a duly organized county court of
Tipton County and in open court fully explained to it that a
consolidation was contemplated between his company and the
Mississippi River Railroad Company, and that such consolidation
depended upon the fact whether the bonds in controversy were to be
paid by the county, and whether it would proceed to levy a tax for
the same, and then and there presented the proposition of the said
Mississippi company, recited in the resolution of that date, passed
by the said county court, and that said Paducah company was then
solvent, and owned and operated a railroad from the town of
Paducah, in Kentucky, to Troy, in Tennessee, and that no portion of
the railroad in Tipton County was then completed, and that but a
few thousand dollars had been expended in work thereon, and that
the purpose of said consolidation was to complete said road in
Tipton County and to connect it with the line of said Paducah and
Gulf road, and that said road has since been completed to the town
of Covington, in said county, to the City of Memphis, being a
distance of thirty-seven miles, twenty-one whereof are in said
Tipton County, and that said Norton communicated to his company the
action of said county court at its said October
Page 103 U. S. 535
session of 1871, and that in consequence thereof and in reliance
thereupon, said consolidation took place, whereby said Paducah and
Memphis Railroad was created, and that said latter company
thereafter completed the road from Covington to Memphis, and has
regularly run and operated the same from the 25th of June, 1873, to
this date, and that the plaintiffs in this action, in the ordinary
course of trade, and without any notice of ill faith in the
procuration of said bonds, gave full value therefor to the said
Paducah and Memphis Railroad Company by furnishing engines to be
employed on said road, and that said Paducah and Memphis Railroad
Company received said bonds without any notice whatsoever of any
fraud in their issuance, then the fact that one or more of the
justices of said county court, who originally voted for said
subscription of stock, were induced so to do by corrupt means, and
all other proofs or matters of fraud, constitute no defense to this
action."
To the giving of that charge the county, by its attorney,
excepted.
At the request of the county, the court charged the jury
that
"If the railway procured the issuance of the bonds by bribery,
fraud, and corruption, that they would be void in the hands of the
railway company, just as if they had not been issued; that all
persons taking them from the company with notice, or under
circumstances to put the vendor on inquiry, would stand in no
better plight than the railway company would,"
and that "if it appears that there was actual fraud in procuring
the bonds, then the plaintiffs would be bound to show that they
were
bona fide holders."
The defendant requested the court to further charge the jury as
follows: "That if the plaintiff took them [the bonds] after due,
they would stand like the railway company's," which request was
granted with the modification that "unless the jury believed as
stated in the charge given at the request of the plaintiffs."
"That a party may waive the fraud by subsequent acts, but in
order to make this doctrine apply, it must appear that the party
waiving was fully apprised of the fraud which he waives. He must
know of the fraud, and, knowing, waive it,"
which was given with this modification:
"Although this is generally
Page 103 U. S. 536
true, it has no application to this case if the jury believe as
in the charge stated in favor of the plaintiffs. If one citizen
about to buy a demand against another applies to him in good faith
to ascertain whether the demand will be paid, and is informed that
it will be, and buys in reliance upon such information, the party
admitting his obligation will not be permitted to defend, although
the admission was made in ignorance of a valid defense."
"That if before a contract which was void, which is no contract,
had become a subsisting and valid contract, a constitutional
provision intervenes which took away all power from one of the
contracting parties to enter into the contract, then there could be
no contract by ratification, because the party would be under
disability of contracting either expressly or by ratification.
Therefore, if the contract was void in its making for fraud, and
the facts of the fraud were not known, and known waived, before
May, 1870, when the new constitution was adopted, then there could
be no contract by ratification or otherwise, as all power to make
such a contract as this was then, by the mandate of the
constitution, taken away from the county court."
That instruction was also granted, with this modification:
"That although the general reasoning of this request is correct
in legal principle, still if the jury believe as stated in the
charge for the plaintiffs, the defendant will be estopped to set up
fraud as a defense, after having induced their purchase by
answering to an inquiry of whether they would be paid, that they
would be. And if the jury believe that such were the facts in this
case, then fraud will not constitute a defense."
"That if the influences which procured the contract were
afterwards successfully exerted in concealing the fraud and
defeating its discovery and efforts to resist the contract, then
there can be no such thing as a waiver; that communities may waive
fraud, but more indulgence is extended to them than to individuals;
that accepting the road and using it, and paying a part of the
consideration in ignorance of the fraud by which a vote was
produced, will not be a waiver."
This request was given with the same modifications, however, as
made in reference to the last two preceding requests by the
defendant.
Page 103 U. S. 537
We are unable to perceive that any error of law was committed to
the prejudice of the county. The case went to the jury under
circumstances quite as favorable to it as the evidence justified.
If the facts disclosed in the instructions were believed by the
jury to be established by the testimony, its duty was to return a
verdict for the plaintiffs. The charge of fraud, bribery, moral
coercion, and intimidation applied, it must be observed, to the
Mississippi Railroad Company and to the justices composing the
county court at the time the original subscription was made and the
bonds issued and delivered. When the court subsequently received
the written proposition from the railroad company for an extension
of time upon certain conditions, it was distinctly informed that
its action would affect and control large business operations in
which others were concerned who had no connection with the original
subscription or with the issue of the bonds. The extension of time
was accepted upon the terms and conditions set out in the
proposition of the company, and without, so far as the record
discloses, any dissent among the twenty-two justices present, and
as evidence of its purpose to adhere to the new agreement and
provide for the payment of the bonds and coupons, the county court
ordered the levy of a tax upon all of the taxable property of the
county. We have already seen that at the meeting of the county
court held in July, 1870, resolutions were entered of record
declaring that the bonds had been issued without lawful authority,
and directing such steps to be taken as were necessary to protect
the people against the proposed burden. With this record before the
justices who composed the court in October, 1871, the proposition
for an extension of time was accepted, and an assurance of record
was thereby given that the county would meet the bonds according to
the new terms. The force of this action of the court was increased
in view of sec. 402 of the Code of Tennessee, adopted in 1858,
declaring that "every county is a corporation, and the justices in
the court assembled are the representatives of the county and
authorized to act for it."
Whether upon the faith of these proceedings in the county court
the Paducah and Gulf Railroad Company consolidated with the
Mississippi River Railroad Company was fairly submitted
Page 103 U. S. 538
for the determination of the jury. The new company having
become, in virtue of that consolidation, the owner of the assets of
the constituent companies, including the bonds in suit, proceeded
with the work of construction. There was evidence tending to show
that at the time of the consolidation, only a few thousand dollars
had been expended in building the Mississippi River railroad in
Tipton County; that after the consolidation, about half a million
of dollars had been expended in Tipton County by the Paducah and
Memphis Railroad Company; that the road from Memphis to Covington,
the county seat of Tipton, a distance of thirty-seven miles (of
which twenty-one miles were in Tipton County), had been built and
equipped, and trains running thereon regularly ever since June 25,
1873; that the road had been graded, bridged, and made ready for
the cross-ties and rails from Covington to one and a quarter miles
north of Ripley, in Lauderdale County; that since the
consolidation, the road had been completed and equipped from Troy
to Trumber, a distance of fifteen miles, and trains run regularly
between those places; that the road had been graded, bridged, and
cross-tied for the rails from Trumber to Dyersburg, and the right
of way secured on about twenty-one miles of the road between
Dyersburg and Ripley. This is not all. The stock which Tipton
County originally received in payment of its subscription was voted
by its official representative in favor of the consolidation, and
the county received, in place of its stock in the Mississippi River
Railroad Company, stock for like amount in the new company.
Besides, the county voted the new stock in favor of the execution
of a mortgage for $1,951,000, which was placed upon the property of
the company which was formed by the consolidation.
The acceptance by the county court of the terms and conditions
set forth in the proposition of Sept. 30, 1871, and its
participation, under the circumstances adverted to, by its
authorized representatives, in the proceedings which resulted in
the consolidation, whereby the situation of the Paducah and Gulf
Railroad Company became materially altered, was in effect a
representation to those interested in that company that the county
would not withhold payment of its bonds or coupons, but would meet
them according to the terms of the new agreement.
Page 103 U. S. 539
By its conduct it induced those interested in the Paducah and
Gulf Railroad Company -- then solvent, out of debt, and owning and
operating a complete railroad from Paducah, Ky., to Troy, Tenn.,
worth $1,000,000 -- to believe that the bonds would constitute a
part of the available assets of the new company. The defendants in
error received a portion of these bonds as early as March 15, 1873.
The integrity of the business transaction by which they acquired
them is not questioned by any evidence recited in the record. Nor
does it appear that any evidence was offered that impugned in any
degree the good faith, in respect of these matters, of those who
controlled the Paducah and Gulf Railroad Company or of those who
controlled the Paducah and Memphis Railroad Company subsequent to
the consolidation of 1872. The defendants in error obtained the
bonds in suit from the Paducah and Memphis Railroad Company, paying
value therefor, and, so far as the record discloses, without any
reason to suspect their payment would be resisted by the county. In
view, then, of the conduct throughout all these proceedings of
those who represented the County of Tipton, it is estopped by every
consideration of law, justice, and fair dealing from disputing its
liability to defendants in error upon the bonds in suit. The
discovery by the county, in February, 1874, of fraud and corrupt
practices upon the part of the Mississippi River Railroad Company
in procuring the issue of the bonds in 1869 cannot be permitted to
affect the rights of those who had, in good faith, acquired the
bonds in reliance upon the explicit assurance which the county, in
effect, gave in October, 1871, that it would provide for the
payment of the bonds and their coupons. The defendants in error
having obtained the bonds under the circumstances which have been
detailed, may rightfully invoke, in support of their claims, any
facts which would have estopped the county from disputing the claim
of the Paducah and Memphis Railroad Company had the latter company
never parted with the bonds.
There are other grounds arising upon the evidence upon which the
judgment below might perhaps be sustained, and there are other
questions suggested in argument upon which we deem it unnecessary
to comment.
Page 103 U. S. 540
MR. JUSTICE SWAYNE and MR. JUSTICE STRONG participated in the
decision of this case in conference before their retirement, and we
are authorized to say that they concur in this opinion and
judgment.
Judgment affirmed.
NOTE --
County of Tipton v. Norton and
County of
Tipton v. Edmunds, error from the same court, were argued at
the same time by the same counsel as the preceding case, and, upon
its authority, the judgments therein rendered were affirmed.
*
Budd v. The state, 3 Hum. 483;
Vanzant v.
Waddel, 2 Yerg. 260;
State Bank v. Cooper, id. 599;
Tate v. Bell, 4
id. 202;
Officer v.
Young, 5
id. 320;
Fisher v. Dabbs, 6
id. 119;
Jones v. Perry, 10
id. 59, 78;
Marr v. Enloe, 1
id. 452;
Sheppard v.
Johnson, 2 Hum. 285;
Hazen v. Union Bank of
Tennessee, 1 Sneed 115, 118;
Nichol v. Mayor &c.,
9 Hum. 252;
City of Memphis v. The Memphis Water Co., 5
Heisk. 495;
Memphis City Railroad Co. v. Mayor & Aldermen
of Memphis, 4 Cold. 406;
L. & N. Railroad Co. v.
County Court of Davidson, 1 Sneed 638;
McCallie v. Mayor
&c., 3 Head 317.
See also numerous cases cited in
the headnotes of the foregoing causes as they appear in Chancellor
Cooper's Tennessee Reports.