Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1876-08-18
Important DeeIsIo. Relative to Town Bonds.

Important Decision Relative to Town Bonds.
An interesting decision has recently been
rendered by Judge Wheeler, in Bennington
County, on the subject OF town bonds given
in aid of the construction of railroad.
In 1867, when the Troy and Boston Rail-
road Company broke off connection with
the Burlington and Rutland Railroad, the
inhabitants of that portion of the State
were left without any outlet by rail be-
yond Bennington. At the solicitation of
the people OF the various towns on the line of
the Burlington and Rutland road. an extra
session of the Legislature was called by
Gov. Dillingham;. at which an act was pass
ed authorizing certain towns to issue their
bonds in aid of the construction of the Leb-
anon Springs Railroad, to connect with the
Bennington and Rutland road at Benning-
| ton and with the Goshen Railroad at
Chatham, New York. Under the authori-
ty OF the act all of these towns subscribed
for stock and bonds in the Lebanon Springs
road aud issued their own bonds in pay
ment Of the subscription. For some wears
air. that road was completed and in oper-
alton the interest on the bonds was regu-
larry paid. But for several years past paw
ment OF the interest has been refused. And
bill in chancery was filed by the town of |
Bennington against Mr.. Trenor W. Park,
who held considerable amount of the |
bonds. praying for an Injunction against |
his dlsposing OF or sueing upon them, |
and that they might be declared invalid. |
The grounds of the bill were the unconsti |
tutionslity of the acts under which the |
bonds were given, alleged irregularity in |
the proceedings, and various general charges |
Of fraud upon the Governor, the Legislature.
and in obtaining the assent and votes of |
the several towns. A temporary Injunction |
having been Obtained, motion by Mr..
Park to dissolve it was argued at the last |
June term at Manchester before Chancellor |
Wheeler by f. j. Phelps for Mr.. Park and
Messrs. Gardner. Sbley and Davenport for
the town Of Bennington.
Judge Wheeler opinion has been re-
Gently given. dissolying the injunction, and |
deeldl ng the questions in regard TO the
validity Of the bonds
The opinion is as follows
OPINION.
Upon the motion Of the defendant Park to dissolve
the injunction IN this cause, heard on bill amended
bill, answer and argument OF counsel, II is consid
cred that, 50 Tar the action OF the Governor in
calm. the extra session OF the Legislature that |
passed enabling ~ . ha I !
turc in passing the act concerned they are the
doings OF separate and Independent departments OF
the state government within the sphere prescribed
for them by the state constitution ana cannot mo-
perly be drawn into question here
That the constitutional power OF the legislature
TO authorize towns TO AID in the construction OF |
railroads considered to be for the benefit OF their
inhabitants has become 50 well settled by deci,ious
Of courts Of other states and Of the United states
ana that OF the supreme Court OF this State in
4idis az al IS. Hall ef dif Gen Term is72 not vet
reported, that II Is not now :airy open to debate
And although il Is objected that this act was 10 AID
railroad out OF the state. stllt is railroad that
WAS 70 and does connect with one in the state aud
would and does thereby reach these towns aud no
reason IS urged or IS apparent why il M ght not be
aided as well as wholly within the state n the
Legislature should see it to authorize, and the
town should see fit TO grant the aid.
That this act by its trst section authorizes and
empowers the towns named in 1t. including Zen
nington TO aid the Lebanon sprng Railroad upon
the conditions specified in the act by takln. IL
bonds ana otherwise II the act had stopped there,
and there had been no condition the taking he
bonds would have been brought within the sc0pe
o! the corporate powers Of the towns and the gene
raj provision Of the statutes c1uceruiug corn rate
action by towns would have furnished a method FOR
taking such action on this subject and the act in
connection with those general provisions would
have been Ike those authorizing town bounties
(LGtrI Of 1862, So those authorizing town aid 10 the
woodstock Railroad ,Laleio lst3l - Latns OF 1906
-, ana LG"s o. l7o4, 80, and Ike other acts
oonierung extraordinary powers upon towns and
there would have been no question OF this sort row.
But the act goes further and in another section |
haf |
should be done unless the assem- OF a majority OF
the tsI payers should be obtained In the manner
pointed out, and there IS other condition tina. |
limits the power granted 10 purchase the bonds.
II the act had stopped there, then there would
have been no sueh question, for requrin. the as
sent would only give the minority further guar |
snty salnst the acts Of the majority.
But the act goes stu further and provides that |
when the assent has been executed BY a majority |
Of the taxpayers any contract made hy the commits
soners named IN II, in pursuance OF H. shall be |
bind n upon the town without requiring any vote
OF other corporate action BY the town as such or
AAs Aes-on ~ uMceFs or agents chosen BY the town
And as. al the time OF the orgAni1At!on of the
State government, towns were well known and re-
co-nl4ed nun-c pa corporations that acted wholly
BY delberaton, debate and vote Of the voters to
sethef II open meeting, or by Ulcers OF agents
chosen al such neeilngs, there grave doubts at
least whether the sslature has power TO author
re majority even " the tax payer. 10 bind the |
rest aud the rest % the inhabitants o. the town and
the to"h .t'eI. " Their individual acts, done By
themselves separately, without the Others having
any opportunity 70 be heard or participate n the
transaction. such action would not seem To be the
acton OF the corporation lyAseiock rs Mouf On II !
, L $50 and Wound be somewhat ike the acton u !
% one person authorE ed 20 for another without
The others consent. ,4fligs 4 CO. ~ Runaoiph, -
T. -! ms IS the only question on TINS motion.
about which any serious doubts have been enter
IA ned tur, az 70 the ae.a cations "a respect % the
assent Al0 me manner OF is procurement, the act
pro- IA elect, That Tie commissioners are to
decide Nhen TIE assent q ma lrity 50, the tax
pay ers mas been procured and cerliy the fact and
mat when they cert ~ their certificate shall Doe
d as : TN a Hsf.N
that they have not So fed and Il ap-rlr- from
tne ans "er that they have. aud II ~, hr.d ia
S4-is ~ --a Is H1i RI s-s that r. act there
- 4ssst-, NAcA = Lac tbs ... th.- respect tho
o-itHea1e was conclusive. As the act provided u
should be, IN respect g. matters Ike tno-e abJut
HA'eu tA4s assent j. attempted q be mpeacled.
Ana uf TIER, 10 the answer al fraud and improp-
r Procurement about the assent ars exp.c 10
uenled 81 that on Ia motion, on the whole there
e No question aoout the assent .e't. 80 much |
dount n respect 10 the force OF that part OF the act
mentioned, that undertakes 10 make the assent
alone pima n, has been entertained, that li the
validity OF the bonds rested on that wholly, Il !
Nouil seem that the injunction ousht 10 be con-
tiAue1 But i IS well settled that distinct parts OF
4e-s4at.'o enactments may he good while others
are not binding and that their objects not 10 te
defeated because all their PROVISIONS cannot be up
held IN AL respects. And as tbs act authorizes /
the toNus TO purchase the bonds without providing
no" tney shall take corporate action "a respect 70
the purchase except that il shall not be had without
the assent treating the part which provides that
the assent Itself shall be binding as being without
force, reading the act IL that clause not IN
H. then there Is enough left to show that u was the
object OF the act 70 author the towns 70 AID that
railroad by purchasing It's bonds and 10 accomplish
that object by bringing Il within the scope OF the
corporate powers OF the towns. And u the towns
have nee that object was brought within their
power acted IN relation 10 the purchase OF the bonds
under and according to the general provisions OF
law n respect 10 tbs doings Of towns. there Is no
question but that the legislature has poTer TO au
thOriZe them to act IN that way, and the acton
would appear 10 he binding. These bonds were
Issued BY the regularly elected selecmen and treas
urer OF the town, who assumed 10 issue them IN be-
hall OF the town. Tho principal consideration Tor
them was an equal amount Of railroad bonds de
lYered 70 officers % the town Tor the town The
answer and the exhibits made part OF IL show, and
In this respect they responsive for in this pro-
ceeding TO have the bonds declared to be invalid.
whatever shows them TO be valid rsspc nsve that
after the town bonds had been so issued and the
Railroad bonds so received. the town at meetings
regularly warned and held. on TIE 10th day OF
April and another on the 2ld day c. August, l't9,
voted directly 10 appropriate AMI dispose o. these
railroad bonds TO lis use.
Towns may bind themselves by ratification o. acts
done IN ther behalf within the scope OF thelr cor
pOrate powers as well other corporations OF per
sons, and this would seem 10 be complete ratih-
cation OF the purchase Of tho railroad bonds and
the issulng the town bonds by which they were
purchased AS could well he made. 1HgeH aud 4nes
Corps g. %, so. 30 there are here the enabling
act authorizing the town TO purchase the railroad
bonds provided the assent should be given, the as
sept given, tue bonds purchased with town bonds
and the whole ratified by regular vote OF the town
As these things now appear they would seem 10 be
sufficient 10 bind the town TO the pay ment OF the
bonds and not to leave sufficient doubt about 1t -
warrant further restraint upon the defendant as