Hawkins v. Board of Supervisors

SlMRALL, J.,

delivered the opinion of the court:

This bill was exhibited by the complainants, tax payers of Carroll county, to restrain the issuance and delivery of the bonds of Carroll county to the amount of $125,000 to the Greenville, Columbus and Birmingham Railroad Company. On the 3d of March, 1873, an application was made by D. A. Butterfield, president of the company to the board of supervisors, to submit to the electors of the county the proposition of making the subscription. On the *751 same day the order of submission was made, a special election was appointed for the 1st of April thereafter. The election was accordingly held. On the 2d of April, three registrars, Ely, Kimbrough and Doyle, filed with the clerk of the board of supervisors the returns, by which it appears that 918 electors voted for the subscription, and 362 against it.

Subsequently at a day in July, the board of supervisors declared that the proposition for subscription had been carried by a vote of two-thirds of the electors, and directed the bonds to be executed by the president, and placed in the hands of three trustees, named in the order. On the 1st of April, 1873, the registration books showed the names of 3,129 voters. It was admitted as proved, but its competency and relevancy was reserved, that there were from 2,000, to 2,500 qualified voters in the county; that 2,500 votes were polled at the presidential election, the 5th November, 1872, and 1,900 votes at the November election, 1873.

On these facts, the question was elaborately and ably discussed by counsel, whether, First, the election in favor of subscription, was carried in accordance with section 14 of article 12, general provisions of the constitution. It is as follows:

“Sec. 14. The legislature shall not authorize any county, city or town to become a stockholder in, or to lend its credit to, any company, association or corporation, unless two-thirds of the qualified voters of such county, city or town, at a special election, or regular election, shall assent thereto.”

The language assumes that the authority-of the legislature is necessary to enable the county, city or -town to become a stockholder or lend its credit, and then puts a limitation upon legislative discretion and authority in an important particular, viz: the authority shall not be granted “ unless two-thirds of the qualified voters of such county * * * at a special * * * or general election shall assent thereto.”

The practice had grown up, and had been very generally adopted by the states, of allowing the civil municipal subdivis *752 ions — as counties, cities and towns — to become stockholders in, or lend their credit to, railroad corporations, turnpike companies, etc., on the approving vote of a majority of the electors of such municipality. This was done by enabling acts of the legislature. The aid thus extended to these public local improvements was usually in the form of municipal bonds; the interest, and ultimately the principal, to be paid by taxes levied upon property. The power of taxation is delegated to these local bodies upon the theory, that the purpose to which the money is applied is for local public benefit, conducing obviously, and iu a special manner to the prosperity and common welfare of the local community. At the time of the adoption of the constitution, the power of the legislature to authorize municipal aid to these enterprises, coupled with the delegated authority of taxation, was well established, both by legislative precedents and judicial decisions in this and the other states. It would be useless to cite the cases. There was great uniformity, too, in the terms upon which the stock might be subscribed, and the bonds issued. One condition was the vote of a majority of the electors.

The 5th section of the 12th article, prohibits the pledging the faith of the state in aid of any person, corporation * * * nor shall the state become a stockholder in any corporation or association. The 14th section allows the right to a municipality which the 5th section denied to the state, but not “ unless two-thirds of the qualified voters at an election assent thereto.”

Manifestly, the intent was to guard and protect the local public from such,burdens, unless, upon the assent of two-thirds of the voters, manifested by an election.

It is contended on the one side, that the intendment of the 14th section is satisfied, if two-thirds of those who vote at the election, are for the subscription, although that may be less than two-thirds of the qualified voters of the county. On the other side, it is contended, that the question is not carried unless two-thirds of all the qualified electors vote for it.

*753 The rule at common law was, “ After an election has been proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected. Although a majority of the assembly abstain from voting, their silence will be construed an assent to the majority of those who vote.” An. & Am. Corp., § 127; Kyd. on Corporations, 1 vol., 422, states the rule thus: “An act done by a simple majority of a collective body, which concerns the common interest, shall be binding on the whole.”

Dillon Municipal Corp., 1 vol., § 215, states the principle thus: “ If an act is to be done by an indefinite body, it is valid, if passed by a majority of those present at a legal meeting. No matter how small a portion these may constitute of the whole number entitled to be present, those who stay away are conclusively presumed to assent to what may be lawfully done by those who attend.”

The statement of the principle by the supreme court of Pennsylvania in the St. Mary’s church case, 7 S. & R, 517 is: “The fundamental principle of every association for self government, is that no one shall be bound except with his own consent, expressed by himself or his representatives, but actual consent is immaterial, the assent of the majority being the assent of all.”

The principle which runs through the cases is, that a majority of the legal voters who choose to vote, constitutes an election. A dissent without a vote is of no avail. Oldknow v. Wainwright, 1 Wm. Bl., 229; Rex. v. Foxcroft, 2 Burr, 1017; First Parish of Sudberry v. Stearns, 21 Pick., 154 .

This principle, that where the electoral body is indefinite, a majority of the votes cast determines the election, originally applied to corporations, aggregate, to the election of officers, has been extended in analagous cases to questions propounded to be adopted or rejected by votes. 1 Sneed. (Tenn.), 638; 21 Pick., 148 ; 37 Mo., 272 ; 38 Mo., 450 ; 16 Wallace, 644; 9 B. Monroe, 326.

It may be admitted, that in the absence of any constitutional *754 limitation or restriction, the legislature would be entirely competent at discretion, to prescribe the conditions upon which a county could give aid to a railroad corporation. It might make the terms the consenting vote of two-thirds of the qualified electors, and that those who did not vote for the aid should be counted against it. Under such a law it would be difficult to ascertain the number of electors in the county. Nevertheless the company claiming the aid must show affirmatively the requisite majority for it. That question was suggested in Warefield’s ease, 20 Ill., 160 . The constitution of Illinois allowed the removal of a county-seat, on a vote of a majority of the electors of the county. The embarrassment of determining the result was alluded to, and commented upon by the court. The same point arose in Wiant’s case, 48, Ill., 268. And the court went outside of the return of the votes, on the proposition submitted, and took the vote cast at the same election for circuit judge, which was larger than that given for the removal of the county seat, as evidence of the number of votes in the county.

The principle upon which the court rested its judgment was, that the return of the officer of the votes on the proposition of removal of the county seat was not conclusive of the number of voters in the county. But the vote given for the circuit judge might be looked at as showing that there were a larger number of voters than those voting for the removal. It is distinctly conceded in the carefully considered case reported in 1 Sneed., supra, that the law might refer to the vote cast for governor at the last election, or for the president, as a test of the number of voters.

If those who do not vote are taken as conclusively assenting to the majority, then the application of that rule in this case would have precluded the court from any inquiry or necessity of inquiry, as to the number of electors in the county. It accepted those who voted for the circuit judge, as evidence that there were more voters than those who cast ballots for or against the removal. The court *755 bad within reach, safe, tangible and reliable means of ascertaining the fact, and availed itself of it.

None of the authorities deny or dispute the position that if the law requires a majority of the electors of a county, city or town to vote for a'proposition, before the subscription or credit shall be given, or the other thing contingent on the vote shall be done, that the proposition fails, unless such majority is given. Is the ballot box the test of the result?

The practical question presented is, whether the constitution means if one, or five, or one hundred vote for the aid, the measure is carried ; or whether it means that a definite number of the entire body entitled to the ballot, must assent by an affirmative vote,. that definite number being two-thirds of the whole body.

Unless the law under which the vote is taken intends otherwise, the ballot is the test in two particulars: first, of the number of the electors, and second, if there be those who do not vote, then that they acquiesce in what the majority voting do. The rule in its original application to corporations, and the election of officers, originated in necessity. That there should be no vacuum in those offices in which the constituent body or tbe public had an interest, there was no mode by which the elector could be compelled to vote. That there might be no interruption in the functions of office, a majority choosing to exert their privilege was sufficient to fill the place. But as we have seen in cases other than the election of officers, the count of the ballots is accepted as the criterion of numbers, not because of the inflexible rule of law, but of the seemingly insuperable difficulty of getting any other which is not loose, shifting and unreliable. The necessity of the rule for the sort of elections for which it was framed, is apparent. When the practice obtained in these late years of giving municipal aid to railroads, and other public enterprises, on an approving vote of the people, the courts applied the rule in reference to the election of officers. If no other *756 or better test was furnished of the number of voters in tbe municipality ; if it can be gathered from the terms of the law under which the election is held, that a majority of two-thirds of the constituent body is requisite, that majority is necessary to a choice. That doctrine is illustrated in a late English case, of Regina v. Guardians of St. Martin’s in the Fields, 5 Eng. L. & Eq. Rep., 861. The officer (treasurer) was to be elected by two-thirds of the electors present. Eleven voted for one man, and ten for another (the chairman not voting.) “ For the chairman being present ought to vote, and is considered a voter present, in order to •determine whether either candidate had a majority of the votes.” Here the “electors present,” were the “constituent body.” A majority of them was necessary to a choice. The court had information of the fact, nor did they adopt the doctrine that the “ chairman ” assented to the vote of “ the eleven,” because the particular law required otherwise.

Recurring to the 14th sec. of art. 12, and giving to the words their ordinary signification, what is their obvious and grammatical import? It seems to be plain that the “county * * * shall not become a stockholder or lend its credit, * * * unless that is (upon no other condition than) two thirds of the qualified voters * * * * at a special or general election, * * * shall assent thereto.” All would agree that the requisite number “ two-thirds ” must assent. That “assent” to fulfill the demands of the language must be given or expressed, in some mode or orther, at an “ election.” The two-thirds thus assenting, must be that number of the “qualified voters of the county.” The debatable ground begins at this point. How within the intent of the constitution shall this “ two thirds” manifest or give evidence at an election of “ assent,” by staying away from the polls, or being present and voting? The constitution which, in the 5th section of the same article, had absolutely prohibited the faith of the state from being pledged or loaned for such a purpose; and which was putting restrictions on the power of the legislature, to author *757 ize counties, etc., incurring such burdens, unless a great majority of its voters desired it, ought not to be so construed, as that one hundred, or five hundred, out of three thousand voters, could by any possibility create the debt. Reading both sections together, and they announce this policy : The credit of the state shall not be pledged or loaned in aid of any person, association or corporation. But if it is the desire and' policy of a county, * * * etc., to aid any association or corporation in any public work; as a railroad or canal, or turnpike, etc., etc., of great local benefit, it may do so if deemed prudent and wise by two-thirds of its qualified voters expressed at an election. We think clearly that the constitution means an overt, affirmative assent evidenced by voting for it.

The power granted to the municipality is, in effect, a power to tax: “Taxes are burdens imposed by the legislature upon persons or property, to raise money for ‘ public purposes.’ ” Manifestly the object to which the aid is extended must be “public,” in the sense that it will contribute to the convenience, prosperity and general advantage of the “local public.” It has been established by authority, that aid tp a railroad corporation is a “public purpose,” for which the county may lend its aid. But that has not met the universal approval of the judicial mind. But aid to a steam saw and grist mill company, Allen v. Inhabitants of Jay, 60 Maine Rep., 124, or for any private business of manufacturing, or for aid to a school established by the will of a citizen, Jenkins v. Andover, 103 Mass., 91 , or a school which was a private enterprise, Curtis v. Whipple, 24 Wis., 350 , are not “public purposes” for whose benefit taxes may be imposed, although such businesses may contribute to the improvement of the community where located.

Long usage and acquiescence have declared railroads as one of the “ public purposes,” for which municipalities may impose taxes on persons and property. It would not be safe, wise or prudent to push the power beyond the line already established in usage, *758 legislative and judicial sanction. Nor should we be inclined to tolerate that construction of the láth section which -would authorize the board of supervisors to lend the aid or credit of the county, to “any person, association or corporation,” unless for an object which in the history of legislation and judicial sanction is recognized as “ public ” to the county. It is not within the limits of legitimate and constitutional taxation, to impose burdens upon persons and property to build up private enterprises and fortunes. It is pressing the power of taxation, the strongest committed to the government, to its extreme limit, when it is referred to any number of the electors of a municipality to impose the onus of taxation, upon not themselves only, but upon other property holders and persons now voters, in aid of some enterprise or public work, not owned and controlled by the municipality, not necessary for the uses and purposes for which such municipality is created, but advantageous in the sense that it contributes to the advancement and increase of the wealth and business of its inhabitants. The power is dangerous, and greatly liable to abuse. Whilst this is so, it is also true that a wise, cautious and prudent use of county credit may result in public good.

We are persuaded,, that the constitution, for the protection of minority interests, intended that this power of creating a debt to be paid by taxation, for a local “public object,” should only be exercised, after it had been approved by that preponderating number of the voting class (two-thirds) as would give reasonable assurance that not only the object upon which the aid was bestowed, was a proper one, but also that the judgment of those most interested approved the loaning of the credit. It meant to put it out of the power of the few to impose the debt upon the many. To make it impossible for those proposing to construct a railroad (for instance) to procure the bonds of a county in its aid, unless the scheme had the deliberate approval of the people, manifested by their votes.

When a statute, or section of the constitution is expressed in *759 general or limited terms, the law makers shall-be intended to mean what it has plainly expressed, and consequently no room is left for construction. United States v. Fisher, 1 Cranch, 244 . The object of construction applied to the constitution is to give effect to the intent of its framers, and the people in adopting it. This intent is to be found in the instrument itself.

The observations of Bronson, J., in People v. Purdy, 2 Hill (N. Y.), 35, have great force; remarking upon the danger of departing from the import and meaning of the words employed to express the intent, and hunting after probable meanings, not clearly embraced in the language, he says: “ In this way the constitution is made to mean one thing by one man, and something else by another, until in the end, it is in danger of being rendered a mere dead letter, and that too when the language is so plain and explicit that it is impossible to mean more than one thing, unless we lose sight of the instrument itself, and roam at large in the fields of speculation.”

To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the “words” convey a definitite meaning, which involves no absurdity or contradiction with other parts of the instrument, then that meaning apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed; and neither the courts nor the legislature have a right to add to or take from that meaning. Newell v. People, 7 N. Y., 97 ; Denn v. Reid, 10 Pet., 524 ; Leonard v. Wiseman, 31 Md., 204 ; Cooley Con. Lim., p. 57.

What is the meaning of the word “ assent,” as used in the 14th section ? Lexicographers define it, “ the act of the mind in agreeing to, or assenting to a thing,” “ consent,” or “agreement.” Consent is defined to be, “ agreement in opinion or sentiment,” “ the being in one mind,” “ accord,” “ concurrence.” Giving to “ as *760 sent” then its natural signification, it would be the act of the minds of two-thirds of the voters of the county, “agreeing to,” or “assenting to” the subscription, “consent to the subscription.” The constitution of New York of 1821 contained this provision : “The ‘assent ’ of two thirds of the members, elected to each branch of the legislature, shall be requisite to every bill creating, continuing or altering * * any body politic or corporate.” Plainly,, the obvious intent is, that all such measures must receive the “ vote” of two-thirds of the members elected. People v. Purdy, 2 Hill, 35 . The word “assent” is here used in the sense of expressing by affirmative act, to wit: voting, concurrence, consent or agreement that the bill shall pass.

The constitution is explicit in laying down a test of the number of votes requisite to approve an amendment proposed. 13th Art. ; “ And if it shall appear that a majority of the qualified electors, voting for members of the legislature, shall have voted for * the amendment, then it shall be inserted,” etc.

The constitution of Tennessee, adopted in 1870, contained this-clause: “ No part of the county shall be taken off without the consent of two-thirds of the qualified voters of such part.” The question considered in Cocke v. Gooch et al., 5 Heiskel, 308-9, et sequiter, was whether the clause meant two-thirds of those actually voting, or “ two-thirds of the qualified voters in the part of the county proposed to be “ taken off.” It will be remarked, that the language is of tantamount import, with that of the 14th section of the 12th .art. of our constitution, unless the word “consent,”' in the former, has a more specific meaning than the word “ assent,”' in the latter. It is manifest that “ assent,” as used in the constitution of New York, above quoted, meant an expression of opinion by a “ vote.” That comports, as we have seen, with the definition of the term. In the Tennessee constitution, the “thought”’ embodied in the word “ consent ” is the same, viz: that “ two-thirds of the qualified electors ” shall manifest their concurrence by their votes, and such was the intent of the provision as held by the court.

*761 There-must be the requisite number as defined in the constitution, voting for the measure, otherwise it is defeated. Say the court: “Instead of presuming that those who did not vote, meant by their nonaction to submit to the result of a count of the votes cast, a proper reading of the constitution authorizes those who do not vote, to conclude that their vote against the project could avail nothing, as a fixed numerical strength was absolutely necessary to-the success of the new county.” The court refers to art. 2, sec. 27, of the same constitution, for an instance of the vote cast at the election determining the result. That section authorized cities, counties * * to give credit, to a person, corporation * * on the assent of three-fourths of the votes cast at such election. The bill was brought to restrain the organization of the new county, because the project had not been approved by the constitutional vote.

That was the “fact” upon which the title to relief rested.

Perhaps, under the machinery contemplated in the 2d and 3d sections of article 9 of the constitution, and the statutes passed to give them effect, better means exist in this state than elsewhere of determining the result of an election, such as was held in this case. The 2d section declares the qualification of voters, their requisite sex, age, residence in the county and state, registration, and citizenship'of the United States. The right of those having the other qualifications to vote is completed and evidenced by registration. 3d section, and statutes on the subject. This section intends a registration “ of all persons entitled to vote at any election,” so that the evidence may exist in favor of those who-have acquired the right by moving into the county, attaining majority, etc. There exists, therefore, in each county, a registration of the list of voters, which ought to show, with approximate accuracy, the names of those entitled to vote “at any election.” In ascertaining, therefore, the result of an election requiring two-thirds of the qualified voters of the county to assent thereto, we think that the registration books are competent evidence on the *762 point of the number of qualified voters in the county. It would be open to proof to show deaths, removals, subsequently incurred, disqualification, etc. "When the constitution uses the term “ qualified electors,” it means those who have been determined by the registrars as having the requisite qualifications, by enrolling their names, etc. It would be a fair construction of the 14th section, •to hold that the “ two-thirds ” meant that number of the whole number whose names had been enrolled as legal voters. That furnished official evidence of those prima facie entitled to vote. But, in this case, in addition to the information contained in the registration books, it is admitted that there were from 2,000 to 2,500 qualified voters in Carroll county at the date of this election. The proposition submitted received less than half of 2,000 votes, and, of course, did not have the assent of ínanthirds, as required by the constitution. The difficulty of proving the number of voters in the county has been obviáted by this admission.

We are of opinion, therefore, that this proposition to subscribe for stock and issue bonds did not receive the assent of the number of voters required by the constitution.

There is no power, then, in the board of supervisors to impose •the burden on the county, unless something has intervened which estops the tax-payers from claiming the relief sought.

The boards of supervisors are a quasi corporation, with a general jurisdiction of the subjects confided to them in the 20th section of 6th article of the constitution; after the enumeration follow the words, “and perform such other duties as shall be provided by law.” The grant of power to such a body, of an extraordinary character, such as is not embraced in the general scope of its duties must be strictly construed. When exerting jurisdiction under a special law, it must act strictly on the conditions under which it is given. In Ballard v. Davis, 31 Miss. Rep., 526 , it is said the terms of the law conferring a special jurisdiction (there a tax for levee purposes) must be strictly pursued in the mode prescribed in the statute. The same rule has been enforced else *763 where in reference to similar bodies. Commissioners of Hamilton y. Mighels, 7 Ohio St. Rep., 109 , 115; Striker v. Kelly, 7 Hill, 9 .

Another manifestation of the principle is, where one acts under delegated authority, as an agent or an officer of the government. There is no controversy or disagreement in the courts as to the general rule. In Hagan v. Barksdale, 44 Miss. Rep., 191 , it is said: “those dealing with others (not in virtue of original, inherent right), but acting as delegates for others must, at their peril, know the extent and measure of the authority. Others are bound, if at all, by reason of the authority delegated for that purpose.”

In the matter of the Floyd acceptances, 7 Wallace, 676, the doctrine is applied in all its force, to the acts of an agent or officer of the government, in transactions in negotiable paper. The person who deals with him knows that he acts by virtue of a delegated power; “ must, at his peril, see that the paper on which he relies comss within the power on which the agent acts. This applies to every person who takes the paper afterwards. For the protection which commercial usage throws around negotiable paper can not be used to establish the authority by which it was originally issued.” “These principles,” say the court, “are applicable to the transactions of government.”

A county has no inherent right to become a stockholder in a railroad corporation, or any other association for making public improvements, nor can it issue its bonds for such purpose.

If empowered so to do, it must conform to the conditions prescribed in the law. By the statute, the board of supervisors is made the organ and instrumentality of the county. But its power does not come into existence except upon certain conditions, which are of the nature of conditions precedent. Those are an approving vote of the constitutional majority at an election, assenting thereto. If the requisite notice of the election has not been given, or it has not been held at the proper time and place, *764 or if no election at all has been held, or if held, and the proposition has not received the requisite vote, then the terms upon which the board can put in motion its statutory power, to make the subscription and issue bonds, have not come into existence. If these, or any of these recitals are true, a subscription would be invalid, and the bonds would be without warrant of law to uphold them. As between the county and the corporation 01 association to whom bonds are issued, such defense can be made.

How far these or any of these matters of defense may be set up against a bona fide holder of the bonds acquired in due course of business, the authorities are not agreed.

Many of the state courts, after great deliberation, have held that the officers of a municipality, inasmuch as they are exerting an extraordinary power, do not bind the county to pay the subscription or the bonds, unless issued in conformity to the law, which is, as to them, a power of attorney, and that any person proposing to purchase bonds, must, at his peril, enquire as to whether they are legally issued or not.

Other courts, especially the federal tribunals, hold that if a statute authorized the county or other municipality to give the aid, and issue the bonds, then the presumption will be indulged conclusively in favor of the bona fide holder; that alt the conditions and prerequisites have been complied with, and that the county or municipality is estopped from setting up such non-compliance with law. Perhaps in all the cases in the supreme court of the United States, the bonds themselves contained a recital of a compliance with the conditions precedent, or the records of the county imported on their face such compliance. The cases in that court are Knox County v. Aspinwall, 21 How., 539 ; Bissell v. Jeffersonville, 24 How., 287 ; Pendleton v. Amy, 13 Wallace, 298; Lexington v. Butler, 14 Wallace, 282; Grand Chute v. Winegar, 15 Wallace, 355; Kennicott v. Wayne County, 16 Wallace, 452; Moran v. Miami County, 2 Black, 722 ; Gelpcke v. City Dubuque, 1 Wallace, 175; Supervisors v. Schenck, 5 Wallace, 772.

*765 If the bonds contain no recitals, and the purchaser has not examined the records of the county to see whether the county authorities have complied with the law, whether he occupies such vantage ground, as would shut off such defenses, has not perhaps been precisely decided by the supreme court.

Many of the state courts hold to the opposite view, viz : The invalidity of the bonds may be pleaded against a bona fide holder, in that the bonds were not issued by the municipal authority, in the circumstances authorized by law. People v. Mead, 24 N. Y., 124 ; Harding v. Rockford & R. R. R. Co. (supreme court, Illinois), Chicago Legal News, vol. 5, 424; 11 Ohio St., 183 ; State v. Green County, 54 Mo., 574 ; State v. Callaway County, 51 Mo., 402 ; Carpenter v. Lathrop, 51 Mo., 483 .

It is not involved in this case, and we forbear to express an opinion upon it, as to how far the county or the tax payers are estopped, and concluded from setting up the character of defenses, we have been considering, after the bonds may have been purchased by a bona fide holder.

The bonds in question have not been negotiated. No person has yet acquired the privileges of a bona fide holder.

The legislature had no power in the first instance to authorize the subscription and issuance of bonds, except upon the vote of the county.

If the project was not adopted by the requisite majority, plainly the legislature could not by a curative statute, cure so radical an infirmity. If there*were mere irregularities in the election, at which two-thirds of the voters give their assent, these may be cured; but not the failure to hold an election, or a failure of the requisite majority. For that would be to impose the obligations on the county, in circumstances not warranted by the constitution and laws.

It has been argued also that the decision of the supervisors that the project was approved is conclusive on the county. That which confers the authority on the board is the vote of the two- *766 thirds. The canvass of the votes, and decision of the board, is but evidence of the fact. If the requisite favorable vote has been actually given, then the condition has occurred, upon which the county can insist upon the aid being given ; and the railroad corporation have a right to demand the subscription and bonds. The conclusion of the board, that the majority has been one way or the other, is not conclusive on the tax payers or the railroad corporation. The authority to the board passes, or fails to pass, by the vote. Whatever might be the effect of the decision of the board, in an action by the holder of the bonds, who took on the faith of the county records, it is not conclusive in a suit between the county and the railroad corporation, nor between the parties to this suit. Lewis v. Commissioners of Bourbon County, 1 Central Law Journal, 517, and cases hereinbefore cited.

We are satisfied that the complainants are not estopped by any or all the matters relied upon, írom a contestation of the validity of the bonds. The suit was instituted before the bonds had been negotiated, and before third persons had acquired vested rights in them. We refer to the cases hereinbefore cited. Citizens Savings and Loan Association, etc., v. City of Topeka, Sup. Ct. U. S., February 9, 1874; Cent. Law Jour. (1875), pp. 156-9.

Decree reversed, and judgment may be rendered in this court.