Columbia Bottom Levee Co. v. Meier

Decision Date31 October 1866
Citation39 Mo. 53
PartiesCOLUMBIA BOTTOM LEVEE COMPANY, Respondent, v. FREDERICK MEIER, Appellant.
CourtMissouri Supreme Court

Appeal from St. Louis Law Commissioner's Court.

The case was brought by plaintiff to recover from defendant an assessment laid upon him as one of the company, and as owner of certain land within the Columbia bottom. The company was chartered by the act of March 8, 1859, which created the corporation and named the directors (Sess. Acts 1859, p. 284); and its charter was amended by act approved January 14, 1860 (Sess. Acts 1859-60, p. 214). The board of directors were elected February 10, 1860, and on 21st February, 1860, they made an assessment on all the owners of land within the limits mentioned in the charter, of $1.75 per acre, for that year, for the purpose of constructing the levee. This assessment the defendant paid. On the 2d day of March, 1861, the board of directors made another assessment of $2 per acre on the said land owners. This assessment the defendant refusd to pay, and this suit was brought to enforce payment.

The defendant set up as a defence that he was not a member of the corporation; that the company had not been legally constituted; that the directors making the assessment had not been legally elected, and that the work, to pay for which the assessment was levied, had not been properly done.

Voorhies and Mason, for appellant.

I. The court below improperly struck out such parts of the answer as set up the failure and inadequacy of the works proposed under the charter.

The preamble of the first act reveals the objects of the charter, to-wit, to protect the lands defined from overflow and to increase their value. The preamble of the second act develops the same purposes. The bodies of the acts also reveal these ends and purposes; the proceedings of this case develop the same things.

The court improperly rejected evidence offered by the defendant t prove the impracticability and inadequacy of the levee. These acts constitute a contract between the adventurers constituting the company and the public, or the parties proposed to be benefited, to-wit, the land owners--Stonebridge Canal Co. v. Whirly, 2 Barn. & Adol. 703; Kings ton-upon-Hull Dock Co. v. La Marche, 8 B. & C. 42; 4 Pet. 152.

The acts being a contract, such contract must necessarily be subject to the incidents of a contract in relation to the subject matter and the consideration just as an ordinary contract. It must necessarily follow that if the intention of the Legislature cannot be carried out--or, in other words, is a failure--the contract is a nullity and cannot be enforced against the defendant.

The defendant was not a member of the company. The plaintiff could produce no evidence on that point, save that he had paid the first assessment; which does not make him a member or impose any obligation upon him to pay any additional assessments.

It clearly appears from the whole enactments by the Legislature that the company was empowered to do specific things, to-wit, to assess taxes to protect the lands from overflow, to drain the same so as to enhance the value thereof. If from the nature of the case these objects are unattainable, there is no power to go on taxing forever, when there is not only no benefit, but absolute detriment--Beatty v. Knowles' Lessee, 4 Pet. 152.

II. The production of the records of the company to show that all previous steps had been taken in conformity to the acts for its organization, was only prima facie evidence, and the defendant had the right to show any non-conformity--2 Barn. & Ald. 703; 4 Pet. 152.

The records simply state that “in accordance with an advertisement published in the St. Louis Republican an election was held at the courthouse in St. Louis, February 10, 1860, for directors of the Columbia Bottom Levee Company, of St. Louis county, Missouri.” Such notice was insufficient, 1. Because it does not appear at whose instance the notice was given. The law is explicit, and says the time and place of election must be designated by the persons named, or a majority of them. 2. Because a mere publication in a newspaper twenty miles distant from the residence of some of the land owners can impart no notice. There should have been a written notice delivered to every individual entitled to vote at the election for directors, otherwise the action at such meeting is not binding on persons not present--Ang. & A. on Corp. (Ed. 1858) § 492, and authorities there cited.

III. The acceptance of the amendatory act, passed 14th January, 1860, does not bind a member of the company, who did not assent to it, even though a majority may have assented. Much less can such amendment bind the defendant, who never consented to the original act, and therefore never was a member of the company.

The amendment makes a fundamental change in the stipulations of the charter, affecting materially the liability of the members. If the defendant had joined in the petition to the Legislature and thereby become a member under the first act, the contract in that first act which would have existed between him and the company is impaired in its obligations to such extent by the amendment, and so varied, that it could have no binding force upon him--New Orleans, J. & G. N. R. R. Co. v. Harris, 27 Miss. 517; Ex parte Johnson, 31 Eng. L. & Eq. 430; Ang. & A. on Corp. 537, 539.

IV. The payment of the first assessment does not of itself constitute the defendant a member of the company, or impose upon him an obligation to pay any future assessment.

V. The acts are unconstitutional.

1. The Legislature had no right under the old Constitution to appropriate public revenue, raised by taxation for the purpose of...

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