Jefferson County v. St. Louis County

• Decision Date: 31 January 1893
• Citation: 21 S.W. 217,113 Mo. 619
• Parties: Jefferson County, Appellant, v. St. Louis County
• Court: Missouri Supreme Court

21 S.W. 217

113 Mo. 619

Jefferson County, Appellant, v. St. Louis County

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from St. Louis Circuit Court.--Hon. W. W. Edwards, Judge.

Affirmed.

Fred Wislizenus and Charles H. Kleinschmidt for appellant.

(1) Plaintiff and defendant became tenants in common of the bridge involved in this case. First. They had authority to buy under the act providing for the building of the bridge. Missouri Laws, Acts of 1856-1857, p. 379. Second. Under the general statutes these counties had the power to purchase this bridge. Wagner's Statutes, sec. 9, p. 441; Sheidley v. Lynch, 95 Mo. 497. Third. The counties having the general right to purchase realty and personalty it cannot be collaterally questioned in any given case. Chambers v. St. Louis, 29 Mo. 543; Land v Coffman, 50 Mo. 243; Martindale v. Railroad, 60 Mo. 510; Hovelman v. Railroad, 79 Mo. 640. Fourth. The county court of St. Louis county, between the time of the adoption of the "Scheme," and the legal ascertainment of the fact that it had been adopted, was a de facto body. Its acts are binding. Adams v. Lindell, 72 Mo. 198; s. c., 5 Mo.App. 197; State ex rel. v Sutton, 3 Mo.App. 388; City of St. Louis v. Stoddard, 15 Mo.App. 177. (2) In respect to the ownership of this bridge the parties to the suit are not quasi corporations, but are charged with the duties of individuals in a similar position. Hannon v. St. Louis Co., 62 Mo. 317; Swineford v. Franklin Co., 73 Mo. 282; Clark v. Adair Co., 79 Mo. 537; Carrington v. City of St. Louis, 89 Mo. 215; Dillon's Municipal Corporations, sec. 985; Moulton v. Scarborough, 71 Me. 269; Oliver v. Worcester, 102 Mass. 500; Eastman v. Meredith, 36 N.H. 295. A quasi corporation may, under circumstances, be mandamused. State ex rel. Bartle v. Coleman, 33 Mo.App. 470; Corrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 493. When a quasi corporation contracts with reference to a duty, the performance of which cannot be compelled, the contract will be enforced. Waupun v. Chester, 61 Wis. 401; Pottsville Burrough v. Norwegian Township, 14 Pa. St. 543; Town v. Rutland, 84 Ill. 289. (3) When one co-tenant refuses to participate in necessary repairs, the other may make them at his own expense, and sue for contribution. Story's Equity, sec. 1235, 1236; Coffin v. Heath 6 Met. 80; Fowler v. Fowler, 50 Conn. 256; Alexander v. Ellison, 79 Ky. 156; Armstrong v. Bryant, 16 S.W. 463; Dickson v. Williams, 11 Cush. 258; Holloway v. Holloway, 97 Mo. 640. Especially is this true when the work done is a duty to the public. Haven v. Mehlgarten, 19 Ill. 91. (4) The account is not barred as to any of its items, for it is a running one. Ring v. Jamison, 66 Mo. 424.

John R. Warfleld, A. McElhinney, R. Lee Mudd for respondent.

(1) Counties are parts of the sovereign state government, and, as such, cannot sue or be sued, unless where specifically permitted by statute. First. This proposition is elementary and axiomatic, and needs no authority or precedent to support it. Precedent, however, is not wanting as appears by the following cases: Hunsacker v. Borden, 5 Cal. 288; Hustings v. City and County of San Francisco, 18 Cal. 59; Elliott on Roads and Streets, p. 42. Second. No such right existed at common law. Russell v. County of Devon, 2 Term. Rep. 671; Lyall v. St. Clair Co., 3 McLean's Reports, 580. Third. No such authority is given by the statute. 1 Revised Statutes, 1889, art. 3, p. 799. (2) The county court had no power or authority to purchase the bridge or make repairs. Reardon v. St. Louis Co., 36 Mo. 555; Barton Co. v. Walser, 47 Mo. 189; Steines v. Franklin Co., 48 Mo. 167; State ex rel. v. Shortridge, 56 Mo. 125; Potter v. Douglass Co., 87 Mo. 125; Book v. Earl, 87 Mo. 246; Walcott v. Lawrence, 26 Mo. 272. There can be no such a thing as implied power in a county court. Alderson v. St. Charles Co., 6 Mo.App. 420; Reardon v. St. Louis Co., 36 Mo. 555. All the legal effect the deed could have was to extinguish the franchise and rid the counties of a nuisance. (3) The principle asserted by the appellant that co-tenants or joint owners are liable to contribute for repairs is not of universal application. Calvert v. Aldrich, 99 Mass. 74; Freeman on Co-tenancy & Partition [2 Ed.] sec. 262; 4 Kent's Commentaries [13 Ed.] top p. 370; Walter v. Greenwood, 29 Minn. 87; Thurston v. Dickinson, 2 Rich. Eq. 317; Taylor v. Baldwin, 10 Barb. 590; Crest v. Jack, 3 Watt's Rep. 238; Baird v. Jackson, 98 Ill. 78; Prentice v. Jansen, 79 N.Y. 478; Kidder v. Rixford, 16 Vt. 169; Kelsey v. Church, 4 Cent. Rep. 99; Washburn on Real Property [5 Ed.] secs. 17, 18, top p. 697, side p. 421. In addition to the above a corporation cannot take an estate in joint tenancy. Telfair v. Howe, 3 Rich. Eq. 235. (4) The statute of limitation begins to run from the date of each transaction. Loeffel v. Hoss, 11 Mo.App. 133; Harrison v. Hall, 8 Mo.App. 167. The judgment of the court below was for the right party and should, therefore, be affirmed.

OPINION

Gantt, P. J.

By an act of the General Assembly in 1857, "The Lemay Ferry Bridge Company of St. Louis and Jefferson counties" was incorporated and granted the exclusive right to erect a bridge across the Meramac river at Lemay ferry, in the counties of St. Louis and Jefferson, and take tolls as prescribed in said act. By section 7 the county court of St. Louis county was authorized to subscribe to the stock of said company, and by section 8 the county court of Jefferson county was permitted to subscribe to said stock all unexpended moneys of the road and canal fund or the fund arising from the sale of five hundred thousand acres of land donated by the general government to the state of Missouri, and by section 10 the two counties were authorized "at any time to purchase the stock of said bridge and make it a free bridge at pleasure, after having purchased said stock."

The bridge was built and, the company having executed a deed of trust, upon default the bridge was sold and bought by John C. Hall and was owned by his estate in 1876. Upon a petition of citizens of Jefferson county to purchase and make it a free bridge to public travel, and after much negotiation between Hall's estate and the county courts of the two counties, the two courts purchased the bridge for $ 10,000, each paying $ 5,000, and a deed made to both and their assigns forever, November 27, 1876. Neither county ever purchased any of the stock.

The scheme and charter separating St. Louis county and the city of St. Louis went into effect October 22, 1876, and was judicially declared in March, 1877, by this court. The old county court of St. Louis county did not know this, however, and continued to act for the county under its old boundaries as a de facto court until the decision in this court was promulgated. The county court of the new county organized under the "scheme," April 30, 1877.

A conference was had on the twenty-fifth of June, 1877, and Jefferson county's proposition to repair the bridge for travel was rejected by St. Louis county court "for the reason that the financial condition of St. Louis county will not permit the granting of the request for aid as made by Jefferson county." At this time the bridge was in a dangerous condition and the county court of St. Louis ordered it to be closed as dangerous to travel. Thereafter Jefferson county repaired the bridge in a substantial way. It expended $ 2,925 in November, 1877, in rebuilding it. In 1883 it spent nearly $ 800 in repairing the piers. In 1885 a new iron bridge was erected by the St. Louis Bridge & Iron Company for Jefferson county at a cost of $ 9,870. The old superstructure was entirely removed and an entirely new bridge erected in its stead. The evidence substantially showed that the old bridge when purchased was worthless, and the two counties in their joint answer to a dower suit by Hall's widow alleged it was not worth $ 20.

In 1886 Jefferson county brought this action against St. Louis county in equity for contribution to the expenses of repairing and rebuilding. The position of Jefferson county is that by the purchase the two counties became tenants in common of the bridge and its franchises. That from that time it was the private property of the two counties, and as to that, the counties were not not quasi municipal corporations, but were charged with all the duties toward each other and toward third persons, which would exist in case natural persons were owners, and that, as a tenant in common is liable to his co-tenant for contribution for necessary repairs made by the latter upon notice, so St. Louis county is liable to Jefferson county for her share of the cost of repairing and rebuilding this bridge.

St. Louis county controverts these claims and contends that it is simply a part of the state; that certain powers are conferred upon it by law to enable it to perform certain functions for the state; that it is not a corporation at all, much less a private corporation with powers and liabilities of a private citizen or natural person; insists that it is only amenable to the laws governing counties in regard to bridges generally. That by the statute its county court was vested with a discretion as to whether it would expend its moneys in further repairs or rebuilding this bridge; that its county court decided it was not to the interest of St. Louis county to make said repairs; that her finances would not admit of it, and, having so decided and notified Jefferson county, it was in nowise liable for the maintenance of said bridge.

I. The liability of counties in this state has been settled by adjudications of this court. They are held to be "quasi corporations granted by the legislature for the purposes of public policy;" in other...