U.S. Supreme Court

NORTON v. SHELBY COUNTY, 118 U.S. 425 (1886)

118 U.S. 425

NORTONv.

SHELBY CO., STATE OF TENNESSEE.

Filed May 10, 1886

Jos. H. Choate, for plaintiff in error.

D. H. Poston, W. K. Poston, for plaintiff in error.

Julius A. Taylor, R. D. Jordan, and W. B. Glisson, for defendant in error.

Mr. Justice Field delivered the opinion of the court.

'$1,000 UNITED STATES OF AMERICA, $1,000

'Issued under and by virtue of section 6 of an act of the legislature of the state of Tennessee passed February 25, 1867, amended on the twelfth day of February, 1869, and by authority conferred upon the county commissioners of Shelby county by section 25 of an act passed March 9, 1867. This is an action upon 29 bonds, of $1,000 each, alleged to be the bonds of Shelby county, Tennessee, issued on the first of March, 1869, and payable on the first of January, 1873, with interest from January 1, 1869, at 6 per cent. per annum, payable annually on the surrender of matured interest coupons attached; and three coupons of $60 each. The following is a copy of one of the bonds, and of a coupon:

State of Tennessee.

'A special tax is levied by authority of law upon all the taxable property in the county of Shelby to meet the principal and interest of these bonds, collectible in equal annual installments running through six years, as the bonds themselves mature.

'SHELBY COUNTY RAILROAD BOND NO. 176. [Vignette.]

'Be it known that the county of Shelby, state of Tennessee, is indebted to the Mississippi River Railroad Company, or bearer, in the sum of one thousand dollars, payable in the city of Memphis on the first day of January, 1873, with interest at the rate of six per cent. per annum from January 1, 1869, payable annually in said city upon surrender of the matured interest coupons hereto attached.

'This is one of three hundred $1,000 bonds, all of the same denomination and rate of interest, issued by Shelby county in payment of a subscription of three hundred thousand dollars to the Mississippi River Railroad Company, made by the county commissioners under the authority of the acts above recited, transferable by delivery, and redeemable in six years, at the rate of fifty thousand dollars a year, commencing January 1, 1870. 1,000 Dollars.

'Dated at the city of Memphis, county of Shelby, state of Tennessee, the first day of March, 1869.

'BARBOUR LEWIS,

'President of the Board of County Commissioners of Shelby County.

'JOHN LOAGUE,

'Clerk of County Court of Shelby County,'

'$60 STATE OF TENNESSEE, $60

'Shelby County.

'Coupon No. ___ of Bond No. 264.

'The trustee of Shelby county will pay to the bearer sixty dollars, in the city of Memphis, on the first day of January, 1875, being interest due on bond No. 264, for $1,000, of bonds issued to Mississippi River Railroad Company. [Seal County Court of Shelby County, Tennessee.]

[Seal County Court of Shelby County, Tennessee.]

'JOHN LOAGUE,

'Clerk of Shelby County Court.' [Signed]

The plaintiff contends (1) that the commissioners, by whose direction the bonds were issued, and whose president signed them, were lawful officers of Shelby county, and authorized, under the acts mentioned in the heading of the bonds, to represent and bind the county by the subscription to the railroad company, and that the bonds issued were therefore its legal obligations; (2) that if the commissioners were not officers de jure of the county, they were officers de facto, and, as such, their action in making the subscription and issuing the bonds is equally binding upon the county; and (3) that the action of the commissioners, whatever their want of authority, has been ratified by the county.

The defendant contends (1) that the commissioners were not lawful officers of the county, and that there was no such office in Tennessee as that of county commissioner; (2) that there could not be any such de facto officers, as

there was no such office known to the laws, and therefore that the subscription was made, and the bonds were issued, without authority, and are void; and (3) that the action of the commissioners was never ratified, and was incapable of ratification, by the county.

Upon the first question presented, that which relates to the lawful existence and authority of the county commissioners, we are relieved from the necessity of passing. That has been authoritatively determined by the supreme court of Tennessee, and is not open for consideration by us.

From an early period in the history of the state-indeed, from a period anterior to the adoption of her constitution of 1796-to the passage of the act of March 9, 1867, the administration of the government in local matters in each county was lodged in a county court, or 'quarterly court,' as it was sometimes called, composed of justices of the peace, elected in its different districts. The constitution of 1796 recognizes that court as an existing tribunal, and the constitution of 1834 prescribes the duties of the justices of the peace composing it. This county court alone had the power to make a county subscription to the Mississippi River Railroad Company, to issue bonds for the amount, and to levy taxes for its payment, unless the act of March 9, 1867, invested the board of commissioners with that authority. St. 1867, c. 48, 6. That act created the board, and provided that it should consist of five persons, residents of the county for not less than two years, each to serve for the period of five years, and until his successor should be elected and qualified. The twenty-fifth section vested in it all the powers and duties then possessed by the quarterly court of the county, and in addition thereto the authority 'to subscribe stock in railroads, which the county court of Shelby county has been authorized by general and special law to subscribe, and under the same conditions and restrictions, and to represent such stock in all elections for directors, and provide for payment of subscriptions as made.'

The validity of this act superseding the county court was at once assailed as in violation of the constitution of the state. Within a month after its passage, WILLIAM WALKER and other

justices of the peace of the county, in their official character, and as citizens and tax-payers, filed a bill in chancery in the name of the state, at their relation, against the commissioners appointed, alleging that they had usurped, and were unlawfully exercising, the powers and functions of the justices, and had taken into custody the records of the county under the act, which the relators insisted was in violation of the constitution, mentioning several sections with which it conflicted; and praying that the act be adjudged void, that the attempt of the commissioners to exercise the powers of the justices be declared a usurpation, and that the commissioners be perpetually enjoined from exercising them. The case having been decided adversely to the relators, an appeal was taken to the supreme court of the state, and pending the appeal the subscription to the stock of the Mississippi River Railroad Company was made by the commissioners, and the bonds were issued. Before the appeal was heard the supreme court of the state had under consideration a similar statute, passed on the twelfth of March, 1868, for Madison county, and extended to White county, which, in like manner, undertook to supersede the quarterly courts of those counties, and substitute in their place boards of commissioners with the same powers as those conferred upon the commissioners of Shelby county. The case in which such consideration was had was Pope v. Phifer, reported in 3 Heiskell's Reports