R Cas

Carpenter v. Greene County

est, limiting the rate of taxation to I per centum on the value of real and personal property in any one year. It is unnecessary to notice the remaining provisions of the act, as they relate chiefly to subscriptions by cities and towns.

On the same day the general assembly passed another act, entitled "An act to amend and revise the general acts incorporating the Cahaba, Marion & Greensboro Railroad Company, and to change the name and style of said company." Acts 1868, p. 566. After reciting in a preamble the several former acts revised, the act proceeds to incorporate the new company, prescribe its capital stock, etc. The sections of this act material in the present case are 4 and 5. By section 4 it is provided "that the courts of county commissioners of the respective counties through which the road shall pass, are respectively hereby authorized and empowered to make subscriptions to the capital stock of said company, in such sum or sums, and payable in such amounts, and at such times as said court may deem proper, and each of said courts are further authorized to issue bonds on the faith of the county in such sums as may be deemed best, payable at such time, (bearing not more than 8 per cent. interest per annum, as said court may determine,) and may sell said bonds to raise the money to pay the stock subscribed, or may transfer them on such terms as may be agreed upon with said company, in payment of the stock subscribed; and said courts separately are hereby authorized and empowered to levy a tax on the land of their respective counties, to pay the interest accruing on said bonds, and to pay the bonds at maturity, and these provisions shall be deemed irrepealable, without the consent of the bondholders, until paid." Section 5 authorized the municipal authorities of any town or county through which said road may run to subscribe to the capital stock of said road, with the following proviso: "Provided, that before the said commissioners' court shall proceed to make any subscription of stock to said railroad, they shall submit the question to the electors of said county, by giving thirty days' notice of an election to be held for that purpose, and the amount of stock proposed by them to be subscribed; and if two-thirds shall vote in favor thereof, then said subscription shall be made, and not otherwise," etc.

On the 6th day of August, 1869, the Selma, Marion & Memphis Railroad Company, through its president acting under authority conferred by its board of directors, presented its proposition to the court of county commissioners of Greene county, inviting a subscription to its capital stock by the county in the sum of $80,000, payable in bonds. Said proposition recited that it was made under and in pursuance of the authority conferred by the general act of December 31, 1868, and requested that it be submitted to the qualified electors of the county under that act. An election was thereupon ordered by the commissioners' court, and held on the

Carpenter v. Greene County

(NS)

14th day of September, 1869, at which a majority, but less than two-thirds, of the electors participating, voted in favor of the proposition. The returns showing these facts were made to the commissioners' court, and that court, at a term held in December, 1869, subscribed to the stock as proposed, and directed that the bonds be executed and delivered to the railroad company. Thereupon the bonds were so issued and delivered. The bonds are in the ordinary commercial form, with interest coupons attached. They do not state expressly under what act they were issued, the recitals upon the subject and relative to the election being as follows: "This bond is issued under and pursuant to an order of the court of county commissioners of said Greene county, made under authority of the constitution of the state of Alabama and the laws of the legislature of the state of Alabama, authorized by a vote of the people of said county at a special election held for the purpose on the 14th day of September, 1869." The bonds were signed by the probate judge, describing himself as "Judge of Probate Court, and Ex Officio the Presiding Officer, Court of County Commissioners, Greene Co., Alabama."

This action was brought against the county to recover upon interest coupons attached to some of these bonds, and the trial was had under an agreement of counsel as to pleadings broad enough to cover the questions presented in the court below and in this court. The foregoing facts were shown in evidence, and there was also proof of certain promises made by the officers of the railroad company to citizens of Greene county prior to the subscription, for the purpose of inducing a favorable vote on the subscription, which it is claimed were never fulfilled. We do not think that a breach of those promises could affect the bonds issued under the subscription actually made. The subscription having been actually made, and the bonds issued and delivered in pursuance of the subscription, on passing into the hands of purchasers for value this renders all such evidence unavailable for any purpose in a suit upon the bonds, whatever may have been the right of the county to have rescinded the contract of subscription before the bonds were issued, or to have maintained an action for a breach of these promises against the railroad company.

A preliminary question is presented as to the right of the plaintiff to maintain this suit. We think the evidence shows that he has such an interest in the coupons as authorizes him to do so. It shows that he had the right to do with the bonds and coupons as he pleased. He could give any acquittance upon any consideration he chose, and the fact that he might have to account for a part of the proceeds to another person would not defeat his right to sue. Payment could have been efficaciously made to him, and he can discharge the defendant from further liability on them.

The bonds and coupons required no indorsement to pass the legal title to him. As they were given to the plaintiff to do

R Cas

Carpenter v. Greene County

as he pleased with in the way of enforcing payment, in which he had an interest, he was entitled to maintain the action. Berney v. Steiner, 108 Ala. 111, 19 South. 806; Rice v. Rice, 106 Ala. 636, 17 South. 628; Bibb v. Hall, 101 Ala. 79, 14 South. 98; Yerby v. Sexton, 48 Ala. 311.

* * *

* * *

Two curative acts passed by the general assembly were introduced in evidence, the first purporting to legalize elections and other proceedings had under the general law of December 31, 1868, and the other purporting to validate certain elections, including the election held in Greene county on the 14th day of September, 1869. The title of the latter act is. "An act to ratify the election held in the towns of Greensboro and Eutaw, and in the counties of Hale, Greene and Pickens, to subscribe stock to the Selma, Marion & Memphis Railroad Company," which was approved March 3, 1870. In so far as it applies to said election, its language is "that the election held in Greene county on the fourteenth day of September, in the year 1869, at which election the qualified electors of said county, by a vote of ten hundred and eleven (1,011) votes for 'Subscription' and five hundred and fifty (550) votes for 'No subscription,' voted to subscribe eighty thousand ($80,000) dollars of stock in the bonds of said county of Greene to the Selma, Marion & Memphis Railroad Company. Said election is hereby ratified and made valid in all respects and particulars." Acts 1869-70, p. 305. The important question is whether or not the election could be held, and the subscription made, and the bonds issued, under the general law. It is insisted that the special act amending and revising the charter of the Cahaba, Marion & Greensboro Railroad Company, giving the courts of county. commissioners of the respective counties through which the road shall pass authority to subscribe to the capital stock of the said railroad, repealed the general law in the counties. embraced by the special act. If it appeared that the special act necessarily covered and related to the county of Greene, and if it further appeared that the subscription authorized by the special act was the same in all substantial respects as that authorized by the general act, the contention would be sound; but the county of Greene is not mentioned in the special act, and it is shown that said railroad did not pass through or into said county. The authority to subscribe under the special act was only extended to the courts of county commissioners of the counties "through which the road shall pass." But, independent of this, there is no good reason why both acts. may not apply; and it is a well-settled rule of construction of statutes that one does not repeal another by implication, if both may have a distinct field of operation. Suth. St. Const. § 157, 158; Maxwell v. State, 89 Ala. 150, 7 South. 824; Cass Co. v. Gillett, 100 U. S. 585, 25 L. Ed. 585. Under the general act, the bonds subscribed for, which were to run not less than 10 nor more than 20 years, were to be delivered

to the railroad company in payment of the subscription, and a majority of voters was sufficient to determine the subscription, and the tax to pay for the bonds issued under the subscription is to be levied, as other state and county taxes, upon real and personal property; but by the seventeenth section thereof it is provided that the persons who pay the taxes on or for the bonds issued own the stock bought with the bonds in the proportion that they severally pay the taxes. scription under the general law was therefore, in effect, a subscription by the several taxpayers of the county, and they became the owners of the stock. Under the special act, the bonds subscribed for by the county may be sold by it, and the proceeds used to pay for the stock subscribed, or they may be transferred on such terms as may be agreed upon with the company, and there is no limitation upon the time they are to run. Under this act, lands only are to be taxed for the payment of the bonds, and there is no provision whereby the taxpayers, in any event, become the owners of the stock; the county, as a municipality, is the owner.

It is evident that the general assembly might very well. intend or purpose that the general taxpayers of the county might subscribe as provided under the general act, and at the same time have a more restricted law, under the special act, by which the special counties benefited by the road, by its passing through their borders, might subscribe upon a twothirds vote and a tax upon the land only. There is no absolute repugnance between the two acts, and, therefore, as the general act was operative, there is no reason why the subscription might not have been made as it was made. This construction gives a field of operation for both. Clay Co. v. Society for Savings, 104 U. S. 579, 26 L. Ed. 856.

It was entirely within the competency of the legislature to cure any irregularity in the conduct of the election or the issuance of the bonds. Utter v. Franklin, 172 U. S. 416, 19 Sup. Ct. 183, 43 L. Ed. 498; Grenada Co. Sup'rs v. Brogden, 112 U. S. 261, 5 Sup. Ct. 125, 28 L. Ed. 704; State v. Webb, 110 Ala. 214, 20 South. 462; Central Agricultural & Mechanical Ass'n v. Alabama Gold Life Ins. Co., 70 Ala. 120; McKemie v. Gorman, 68 Ala. 442. If there was any irregularity whatever in respect of the conduct of the election or the issuance of the bonds, it was cured by the act approved March 1, 1870 (Acts 1869-70, p. 286), legalizing and confirming all acts and things theretofore done and performed in this state for railroad purposes, in substantial compliance with the provisions of the general act of December 31, 1868, above mentioned. There does not appear, however, to have been any irregularity in the issuance of these bonds, and they are binding obligations upon the defendant. Clay Co. v. Society for Savings, supra; Greene Co. v. Daniel, 102 U. S. 187, 26 L. Ed. 99; Chambers Co. v. Clews, 21 Wall. 317, 22 L. Ed. 517; Commissioners v. Rather, 48 Ala. 433. Reversed and remanded.

R Cas

LOUISVILLE & N. R. Co. v. NEHAN et al.

(Court of Appeals of Kentucky, Oct. 2, 1901.)

[64 S. W. Rep. 457.]

Local Assessments-Liability of Railroad Company in Possession of Wharf Property Owned by City from Which It Derives Revenue.* The fact that a railroad company is in possession of wharf property owned by the city, and derives revenue therefrom, does not render it liable for the cost of improving a street on which the property abuts. Same-Liability of Abutting Property.

In a city of the first class abutting property is not chargeable with the cost of reconstructing a street, though the original construction may not have been at the cost of abutting owners.

Appeal from circuit court, Jefferson county, chancery division.

"Not to be officially reported."

Action by J. L. Nehan and others against the Louisville & Nashville Railroad Company and the city of Louisville to enforce a lien for the cost of a street improvement. Judgment for plaintiffs, and defendant Louisville & Nashville Railroad Company appeals. Reversed.

Helm, Bruce & Helm, H. W. Bruce, and Lyttleton Cooke, for appellant.

H. L. Stone, for appellee city.

H. M. Lane, for appellees Nehan and others.

DU RELLE, J. The appellees Nehan and others brought suit against the appellant company, making the appellee the city of Louisville a party, seeking to enforce a lien on the property of the company for the cost of improving Fulton street between First and Brook streets, in Louisville. All the property abutting upon the street improved upon the south side belonged to the appellant company, and all the property abutting upon the north side belonged to the city, being part of its wharf property. The appellant company resisted the claim upon the ground that the improvement was not the original construction of Fulton street, within the meaning of the act for the government of cities of the first class; and upon the further ground that it was not shown that the grade of Fulton street had been fixed, as required by law, prior to the making of the improvement. By cross petition against the board of sinking fund commissioners the city sought to require them to pay a portion of the cost of the improvement, for the reason that they held possession of the wharf property north of the improvement, and derived revenue therefrom. The learned special chancellor dismissed the cross petition of the city upon the ground that the charter in express terms provides that the streets shall be made at the exclusive cost of the owners of the adjacent property, and that, while the city. *As to the liability of railroads to local assessments, see Kansas City P. & G. Ry. Co. v. Board of Waterworks (Ark.), 20 Am. & Eng. R. Cas., N. S., 265, and note, 268 et seq. ; 7 Rap. & Mack's Dig. 684 et seq.