39 Mo. 53 (Mo. 1866), Columbia Bottom Levee Co. v. Meier

Citation:39 Mo. 53
Opinion Judge:FAGG, Judge.
Attorney:Voorhies and Mason, for appellant. Glover & Shepley and Flournoy, for respondent.
Court:Supreme Court of Missouri

Page 53

39 Mo. 53 (Mo. 1866)




Supreme Court of Missouri.

October Term, 1866

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...

To continue reading