State ex rel. Missouri & Mississippi R.R. Co. v. Macon Cnty. Court

• Decision Date: 31 October 1867
• Parties: STATE OF MISSOURI ex rel. THE MISSOURI AND MISSISSIPPI RAILROAD COMPANY, Relator, v. THE MACON COUNTY COURT, Respondent.
• Court: Missouri Supreme Court

41 Mo. 453

STATE OF MISSOURI ex rel. THE MISSOURI AND MISSISSIPPI RAILROAD COMPANY, Relator,

v.THE MACON COUNTY COURT, Respondent.

Supreme Court of Missouri.

October Term, 1867.

Petition for Mandamus.

A. J. Williams, T. A. Jones, and A. L. Gilstrap, for relator.

I. There are three questions before this court for judicial determination, viz.: 1. To what extent is section 13 of the charter of the Missouri & Mississippi Railroad Company (Sess. Acts 1865, p. 86) controlled by section 30 of the general act of 1861? 2. What effect has section 14, art. 11, of Constitution upon section 13 of said charter? 3. Is section 13 of said charter repealed by section 17, ch. 63, General Statutes of 1866, p. 338?

We think the first question has been conclusively settled by this court in the case of City and County of St. Louis v. Alexander, 23 Mo. 507.

II. The respondent claims that the enabling act was repealed by the Constitution, not by express terms, but by necessary implication. It has been repeatedly decided that the rule of construction concerning statutory repeals by implication is applicable to the inquiry, whether any particular enactment has ceased to be in force on account of repugnancy to a Constitution--Ohio ex rel. Evans v. Dudly, 1 Ohio, 437, approved in Cass v. Dillon, 2 Ohio, 610; see also 8 Ohio, 398; 22 How. 364. All of these cases affirm the identity of the rule in the two clauses of repeal. (See also Smith Com. p. 418.)

The rule is, that repeals by implication are not favored. This rule is the result of a long course of decisions. “Although two acts of Parliament are seemingly repugnant, yet if there be no clause of, ‘ non obstante’ in the latter they shall, if possible, have such construction that the latter may not be a repeal of the former by implication”--Bac. Abr. tit. Stat. D.; 4 Gill. & Johns. 6; Sedgw. Const. Law, 123; Dwar. on Stat. 532; 4 How. (U. S.) 53.

Courts are bound to uphold the prior law if the two may subsist together--2 Barb. 316; 5 Hill, 221; 10 Barr. (Pa.) 442; Smith Com. p. 879, § 757; 3 Ohio, 553; 10 Ohio, 178.

All laws not repugnant are specially saved by the Constitution--§ 13, art. 11, Const. Mo. In the light of this rule let us see if there is any repugnancy between the Constitution and the said section of the railroad charter; see if they are irreconcilably inconsistent with each other--so contrary that they cannot be reconciled; if there is no fair course of reasoning by which they can be reconciled. The relator contends that section 14 of art. 11 of the Constitution and the law in question are not repugnant to each other. The section refers to future legislation and to that only. It should be so construed as to have a prospective and not a retroactive effect--3 Edw. 464; 9 C. B. 551; Broome's L. Max. 37; 13 B. Mon. 19. The General Assembly it speaks of is the Assembly created by the Constitution and not any past Assembly. The acts it prohibits are not subscriptions under existing laws but the making any more such laws -2 Ohio, 618; 3 Barb. 332. The section acts as an inhibition upon the Legislature and not upon county courts. The section is a limitation upon the future powers of the General Assembly and not an abridgement of he powers of any past Assembly--13 B. Mon. 19; 3 Edw. 464; 9 C. B. 551 & 557; Newell v. The People. 3 Seld. (N. Y.) 97; Gibon v. Ogden, 9 Wheat. 188; 2 Hill, 31; 4 Hill, 384; 4 Ohio, 383, 385. It has not been suggested that there is any ambiguity or obscurity in the section under consideration.

One statute is never repealed by the spirit of another--Cass v. Dillon, 2 Ohio, 612; 8 B. Mon. 11; State et al. v. City of Cincinnati, 19 Ohio, 195.

1. If the Convention intended to give section 14 a retroactive effect to disturb past legislation, to repeal laws already in force, words to that effect would have been used. This view is strongly supported by the fact that the Convention did give at least one section of the Constitution a retroactive effect in distinct terms, viz., sec. 28 art. 4. concerning lottery tickets. The first clause of this section contains a prohibition on the General Assembly, using the same language as in sec. 14. art. 11; but the second clause reaches further and absolutely forbids the sale of lottery tickets, while the third clause forbids the drawing of lotteries and the sale of tickets even under existing laws authorizing the same; thus first limiting the power of the General Assembly, and then in express terms forbidding an act. Sec. 14, art. 11, contains the same limitation upon the powers of the General Assembly, but nowhere either in this or any other section of the Constitution is a county court forbidden to subscribe to the capital stock of corporations.

2. It is by no means an inconvenient mode of construing statutes to presume that the Legislature was aware of the state of the law at the time they were passed--Jones v. Brown, 2 Exch. 332, per Pollock. J.

The Ohio Constitution of 1851 contains a provision, the prohibitory clause of which is couched in the precise language of the prohibitory clause of our own Constitution now under consideration. This clause received a judicial interpretation by the highest tribunal of Ohio in Cass v. Dillon, in 1853, which has been repeatedly affirmed by the courts of that State in a course of decisions running through a period of twelve years prior to the passage of our own Constitution. We cannot suppose that this identity of language in the constitutional provisions of two great States was the result of chance merely; neither can we suppose that our Convention were ignorant of the interpretation which had been given this clause by the courts of Ohio. On the contrary, the presumption is that our Convention borrowed this clause from the Ohio Constitution, and that they well knew and approved of the interpretation which had been placed upon it by the courts of that State.

But it may be urged that sec. 13 of art. 11 of the Constitution prohibits the State from becoming a stockholder in any corporation, and that a limitation upon the State is ex necessitate a limitation upon her subdivisions. This point was much discussed in Cass v. Dillon, and it was therein decided that when the Constitution speaks of the State, the whole State in her political capacity, and not her subdivisions, is intended--3 Barb, 332; 13 B. Mon. 17; 2 Ohio, 616; 2 Ohio, 621-3.

The Constitution of Indiana which took effect November, 1851, contained the following provision: “No county shall subscribe for stock in any corporation unless the same be paid for at the time of subscription, nor shall any county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company”--§ 6, art. 10, Const. Ind. Here is a prohibition clear and explicit which was held in Aspinwall v. Com. of Davies Co., 22 How. (U. S.) to be a limitation of the power of county commissioners. Why did our Convention incorporate into our fundamental law the Ohio rather than the Indiana provision? unless it was that they intended not to disturb past legislation on the subject under consideration.

Hall and Eskridge, for respondent.

I. The subscription stock is in violation of the Constitution of Missouri, secs. 3 & 14 of art. 11--39 Mo. 488; 22 How. 376-7; 2 Ohio, 640 & 643; 13 B. Monroe, dissenting opinion, pp. 41 & 48.

II. The charter was amended--See Acts of 1865, pp. 88-9, § 14; R. C. 1865, § 17, ch. 63, p. 338.

III. There was no vested right under the charter at the adoption of the Constitution--13 B. Mon. 148; 22 How. 377. The law as it was before the adoption of the new Constitution required a submission to a vote of the people before taking the stock--Laws of Mo. p. 60, §§ 1 & 2; 18 Mo. 214-15; R. C. 1855, p. 371, § 7.

WAGNER, Judge, delivered the opinion of the court.

The question presented by the record relates to the validity of the subscription of stock made by the County Court of Macon county for the construction of the Missouri and Mississippi railroad. The relator was duly incorporated by an act of the Legislature approved February 20, 1865, and by the 13th section of its charter it is declared, “It shall be lawful for the corporate authorities of any city or town, the County Court of any county, desiring so to do, to subscribe to the capital stock of said company and may issue bonds therefor, and levy a tax to pay the same not to exceed one-twentieth of one per cent. upon the assessed value of taxable property for each year.” The 14th section expressly prohibits the Legislature from repealing or annulling the charter, but no direct provision is made against its being altered or amended. The County Court of Macon county, on the second day of April, 1867, by an order duly entered of record, took and subscribed one hundred and seventy-five thousand dollars in the stock of the said company without first having submitted the matter to vote of the people. The present Constitution of this State, which took effect and went into operation on the 4th day of July, 1865, provides in the third section of the eleventh article that “all statute laws of this State now in force, not inconsistent with this Constitution, shall continue in force until they shall expire by their own limitation, or be amended or repealed by the General Assembly,” and by the 14th section of the same article it is provided that “The General Assembly shall not authorize any county, city or town to become a stockholder in, or to loan its credit to, any company, association or corporation, unless two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, shall assent thereto.” The Legislature at its session of 1865-6, in the revision of the general railroad law, declared that “it shall be lawful for the County Court of any county, the city council of any city, or the trustees of any incorporated town, to take stock for such county, city or town, in, or loan the credit thereof to, any...