St. Joseph & I. R. Co. v. Shambaugh

Citation17 S.W. 581,106 Mo. 557
PartiesST. JOSEPH & I. R. CO. v. SHAMBAUGH.
Decision Date09 November 1891
CourtUnited States State Supreme Court of Missouri

2. Act Mo. Jan. 22, 1857, incorporating a railroad company, declared that "a company is hereby created, called the `St. Joseph & Iowa Railroad Company,'" and designated the first board of directors, but imposed no conditions precedent. Held, that the act was a present grant of corporate powers, and the corporation came into being on acceptance of the charter.

3. The construction and operation by a railroad company of a part of its road proves an acceptance of its charter, where no particular mode of acceptance is designated.

4. Under Const. Mo. 1865, art. 8, § 2, which provides that no act shall be passed reviving any act creating a private corporation, where such corporation shall not have been organized and commenced business within one year after the act of incorporation took effect, "or within such other time as may have been prescribed in such act," an act reviving a corporation theretofore created will be presumed to be valid where it does not appear that the corporation did not organize and commence business within the time specified.

5. The provision of Const. Mo. 1865, that private corporations shall not be created by special laws, does not prohibit the amendment, by special act, of special charters previously granted. State v. Railroad Co., 48 Mo. 468, followed.

6. In Missouri, the cost of building fences and constructing gates at farm crossings on a railroad is imposed by statute on the company, and is not an item of damage in condemnation proceedings.

7. Const. Mo. 1875, art. 12, § 4, provides that "the right of trial by jury shall be held inviolate in all trials of claims for compensation," where an incorporated company shall seek to exercise the right of eminent domain. The schedule (section 1) declares that "the provisions of all laws which are inconsistent with this constitution shall upon its adoption cease." Held, that all laws, general and special, which provided for the ascertainment of compensation for land taken by virtue of the right of eminent domain otherwise than by a jury, existing at the time the constitution was adopted, were thereby repealed.

Appeal from circuit court, De Kalb county; O. M. SPENCER, Judge.

Proceeding by St. Joseph & Iowa Railroad Company against James B. Shambaugh to condemn land for right of way. Damages assessed by a jury. Judgment thereon. Both parties appeal. Affirmed.

Brown & Craig, for appellant. S. H. Corn, for respondent.

BLACK, J.

The plaintiff railroad company commenced this proceeding on the 5th August, 1885, to condemn property for a right of way. The circuit judge, by a vacation order, appointed viewers to assess damages, no notice of the application having been given. The viewers, however, gave defendant notice of the time when they would view the property and make the assessment. To their report the defendant filed exceptions, which the court overruled. The court, however, ordered a jury to reassess the damages. From the verdict of the jury and judgment thereon both parties appealed. The two appeals are docketed as two causes, but we shall treat them as one.

1. Under the provisions of the plaintiff's charter, and the special acts therein referred to and made a part thereof, notice to the property-owner of the intended application to the judge for the appointment of viewers is not required. The charter, however, does require the viewers to give the land-owner notice of the time when they will view the property and assess the damages. This notice was duly given, and the notice thus given is sufficient.

2. Most of the other objections made by the defendant resolve themselves into these propositions: First, that plaintiff has no corporate capacity; second, if it has, then it has no power to condemn property for a right of way. To understand these objections it is necessary to refer to some of the provisions of the plaintiff's charter and the act amendatory thereof. The act of January 22, 1857, provides: "Section 1. A company is hereby incorporated, called the `Saint Joseph and Iowa Railroad Company,' and by the same title the stockholders shall be in perpetual succession, with a capital stock of two millions of dollars, which may be increased to the sum of five millions, if deemed necessary; the same to be divided into shares of one hundred dollars each," etc. "Sec. 2. John Corby" and other designated persons, or any nine of them, "shall constitute the first board of directors under the provisions of this act, and shall hold their offices until their successors shall be qualified. They shall meet at such times and places as shall be designated by any three of them, and organize. They shall cause books to be opened for the subscription of capital stock of said company, at such times and places as they may designate, under the supervision of such persons as they may appoint, and may continue them open so long as they may deem proper, and may reopen such books when necessary, until the whole stock shall be subscribed." "Sec. 4. The company shall commence the construction of said road within eight years, and shall complete the same within sixteen years, thereafter." The following are the material portions of the act of March 19, 1866: "Whereas, the board of directors of the St. Joseph and Iowa Railroad Company, organized as provided by the charter of said company, opened books for subscription to the capital stock of said company, made surveys for said road, and commenced the transaction of its business, but were prevented (by the Rebellion intervening) from completing said road as required by the terms of said charter; and whereas, the majority of said board of directors having failed to take the oath of loyalty, as required by the constitution and laws of the state of Missouri, therefore, to secure the completion of said road. * * * Section 1. The charter of the Saint Joseph and Iowa Railroad Company, approved January 22, 1857, be, and the same is hereby, amended as follows: That John Severance, Francis Rodman, * * * shall constitute the board of directors of said company. They shall hold their offices until their successors are qualified, and they shall determine by by-laws what number of directors shall constitute a quorum. The rights, privileges, and immunities that belong to or are vested in the board of directors by virtue of the act to which this act is amendatory, not inconsistent with this act, together with the property, rights, and credits of said corporation created by said act, shall be vested in and shall belong to the board herein named and their successors in office, and they shall have full power to hold the books and papers of such corporation." "Sec. 4. Said company shall proceed with the construction of said road within ten years after the approval of this act, and shall complete the same within twenty years thereafter." Other sections of this act give the new board power to levy assessments upon stock previously issued, and to forfeit the same for non-payment, and repeal section 4 of the act of 1857. The evidence of a witness introduced by defendant shows that in 1871 the company had made a survey and done some work in Buchanan county, and had portions of its road in operation in other counties. This witness became a member of the board of directors in 1878, and says he had no personal knowledge of any organization of the company prior to the act of 1866, and did not know of any outstanding stock issued prior to the date of the amendatory act.

1. The corporate existence of the plaintiff is an issue which may be made in a proceeding to condemn property; for, if the plaintiff has no corporate capacity, it has no right to prosecute this suit. City of Hopkins v. Railroad Co., 79 Mo. 100; In re Brooklyn, W. & N. Ry. Co., 72 N. Y. 245. Where the act of incorporation does not in and of itself confer corporate capacity, but provides for the doing of certain things, upon the doing of...

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