1877. June Term. The Ohio Valley V. The Town of On motion, the clerk was instructed to procure a seal for the use of the town. At a meeting of said council, April 13, 1874, "on Moundsville. motion, it was ordered that the following bonds of the town of Moundsville, viz: Three of the denomination of $1,000.00 each; eight of the denomination of $500.00 each; ten of the denomination of $200.00 each; and ten of the denomination of $100.00 each, payable to the Ohio Valley Iron Works, in pursuance of a former order of this council providing for the issue of $10,000.00 in bonds, payable ten years after date, as a donation to the said "Ohio Valley Iron Works," be signed by the mayor and clerk of the said town, and attested by the common seal of said town, and delivered to the authorized agent of said Ohio Valley Iron Works, after receiving a proper voucher or receipt therefor." At a meeting of said council, May 8, 1874, the word "order" in the ordinance passed February, 16, was changed to "bearer." At a special session of said council, August 11, 1874, it was ordained as follows: "Be it ordained by the Common Council of the Town of Moundsville, That 50 cents be levied on the real and personal property of the town for the purpose of paying the annual interest and creating a sinking fund, as the law directs, on the bonded debt of the town, and that 30 cents be levied on the real and personal property of the town, for the purpose of repairing the sidewalks thereof, and the general contingent expenses of the town for the coming year." It appears from the record, that upon the trial of this cause one of the bonds of March, 1874, for $500.00. marked No. 22-C, with nine coupons of $30.00 each attached, and numbered from two to ten inclusive-No. 1 having been detached-with the corporate seal of the town of Moundsville affixed, was offered and used in evidence. Said bond is in the words and figures following, to-wit: 7 No. 22-C. BOND. UNITED STATES OF AMERICA. 1877. June Term. $500.00 The Ohio Valley State of West Virginia, Town of Moundsville: Know all men by these presents, That the town of Moundsville, in the State of West Virginia, is indebted to the Ohio Valley Iron Works, or bearer, in the sum of $500.00, which sum the said town of Moundsville promises to pay to the said Ohio Valley Iron Works, or bearer, ten years after date, at the office of the treasurer of said town, in said State, with interest thereon at the rate of six per cent per annum, payable annually at said treasurer's office, on the first day of every March succeeding the date hereof, until the principal shall be paid, on the delivery of the proper coupon therefor hereunto annexed. This bond is issued for the purpose of raising money to pay in part the donation of the town of Moundsville to the capital stock of the Ohio Valley Iron Works, in pursuance of the act of the Legislature of West Virginia, approved December 2, 1873, authorizing municipal corporations to issue bonds-the aforesaid donation having been first duly approved by a majority of more than three-fifths of the voters of said town, voting thereon at the time and in the manner required by law. Witness the common seal of said town of Moundsville, and the signatures of its mayor and clerk, this 1st day of March, 1874. H. W. HUNTER, Clerk. JOHN FERGUSON, Mayor. [Corporate seal of the town of Moundsville.] The Ohio Valley Iron Works, on the 25th day of September, 1876, filed its petition in the circuit court of Marshall county, praying for a mandamus from that court, to compel the corporate authorities of the town of Moundsville, to levy a tax pursuant to law, on all the Iron Works 1877. June Term. The Ohio Valley real estate and personal property, within the town of Moundsville subject to state and county tax, sufficient to pay the interest overdue on said bonds for the year Moundsville. 1875, and unpaid to the petitioner. V. The Town of The petition shows that the Ohio Valley Iron Works, is a corporation under and pursuant to the laws of West Virginia, operating within the corporate limits of the town of Moundsville, and duly incorporated on the 25th day of September, 1872, "chartered and organized for the purpose of acquiring lands, mining iron, limestone or coal, making pig-iron and the manufacturing of iron into bars, nails, and other merchantable articles, making castings and machinery required for the above, as set forth and specifically expressed in said act of incorporation," &c. The petition further shows: "That a donation of the sum of $10,000.00, by and on behalf of said town of Moundsville," in aid of the capital stock of said company, was deemed advisable and proper; and that afterwards, on the 1st day of March, 1874, the donation was made by the issuing of said bonds, for the purpose, and in the manner as has been shown from the record and proceedings of said council, just quoted; and that said council directed the levy of an annual tax sufficient to pay the interest on said bonds, and when required, the principal thereof, within "ten years" from date of said bonds, on all the real estate and personal property situated within said town subject to state and county taxes; "that all said bonds thus issued, were afterwards, at an early day delivered to and accepted by the Ohio Valley Iron Works, and are now, and ever since have been, under the control of the said Iron Works as their own rightful property and as a part of their capital stock, subject to their own use in all their legitimate business operations, and that the legal interest thereon was, for the year 1874, paid by the said town of Moundsville." The petition further alleged, that all said bonds were received by the said company, "in aid of said rolling mill enterprise, and as an inducement thereto pursuant to their (said 1877. June Term. The Ohio Valley V. The Town of company's) contract with said town; and that they (said company) fully relied upon the same as having been made and delivered to them in good faith by said town of Moundsville, and with full power and authority so to Moundsville. do;" that they in reliance upon said contract, expended large sums of money in the purchase of lands, in the erection and construction of buildings and machinery thereon, within the corporate limits of the town of Moundsville, designated and since used for rolling mill purposes, which have generally promoted the material interests of said town and the inhabitants thereof;" that the interest on said bonds "for the year 1875, became due and payable on the 1st day of March, 1876, and is now overdue and wholly unpaid, and that the town of Moundsville, by its mayor and common council, who were, and are, duly authorized in the premises, and whose duty it was so to do, although requested, never did or would order or make any levy of an annual tax sufficient to pay the interest for the year 1875, on said bonds, or for any part thereof, or for any other year except the year 1874, * * * nor to make any payment or provision of any kind for the payment of said interest, &c., and refused so to do." The petition also alleged that said town had no property out of which the money could be paid, on execution, and that a resort to mandamus is necessary to compel the authorities to levy a tax for the payment thereof. * * The circuit court, on the 25th day of September, 1876, ordered its clerk to issue a writ of mandamus nisi, directed to the said mayor and common council; which writ said clerk did issue accordingly September 27, 1876, on which last said day, the defendant made its return to said writ, in the language following: For return to the said mandamus, the defendant says it has not levied a tax on the people and property of the town for the payment of plaintiff's claim, described in its petition and writ, and for cause why it has not done the same, here shows to the court: 1877. June Term. The Ohio Valley V. 1st. That said writ is not sufficient in law. 2d. That the bonds claimed and described by plaintiff were not issued for a municipal purpose, and the town Moundsville of Moundsville is a municipal corporation having no power to levy taxes except for municipal purposes. The Town of 3d. The plaintiff is a private corporation, owned and operated by individuals for private purposes exclusively, and the town of Moundsville has no stock or interest therein, nor any right to any direction or control of its affairs, and has never had any such interest or control. 4th. That the town of Moundsville never received any consideration for said bonds-they having been unlawfully given to the plaintiff as a donation. 5th. That the supposed claim of the plaintiff and the bonds issued to the plaintiff were made and issued in defiance of the laws of this State, and contrary to the laws of the United States of America, in this, that they were not issued for a public or a municipal purpose. 6th. That defendant has been perpetually enjoined from levying said taxes by this honorable court in the case lately pending, wherein J. Dallas Ewing and others were plaintiffs, and this defendant was there defendant. 7th. That plaintiff has not, and defendant is advised and believes it could not, establish its claim and obtain any judgment at law or in equity against this defendant founded on the bonds and claim of plaintiff mentioned in its petition and writ. 8th. That defendant cannot lawfully levy such tax. To said return the petitioner demurred, and thereupon the cause was argued and submitted, and the court on the 4th day of November, 1876, overruled said demurrer, dismissed the mandamus nisi, ordered the cause to be dropped from the docket, and adjudged that the plaintiff pay defendant its costs in this behalf expended, &c. To which judgment the Ohio Valley Iron Works then and there excepted, and petitioned for an appeal from, and supersedeas to, said judgment, which were granted by a judge of this Court. |