State ex rel. St. Joseph & Iowa Rail Road Co. v. Cnty. Court of Sullivan Cnty.

• Decision Date: 28 February 1873
• Citation: 51 Mo. 522
• Parties: THE STATE OF MISSOURI, ex rel. THE ST. JOSEPH & IOWA RAIL ROAD COMPANY, Respondent, v. THE COUNTY COURT OF SULLIVAN COUNTY, Appellant.
• Court: Missouri Supreme Court

51 Mo. 522

THE STATE OF MISSOURI, ex rel. THE ST. JOSEPH & IOWA RAIL ROAD COMPANY, Respondent,

v.THE COUNTY COURT OF SULLIVAN COUNTY, Appellant.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Sullivan Circuit Court.

A. H. Vories, Vineyard, Young and M. Oliver, et al., for Appellant.

So far as appears from the allegations in the petition, at the time that the present constitution went into effect the act of the Legislature organizing the St. Joseph and Iowa Railroad Company had ceased to have any vitality by its own limitation, and the counties had no more right or power, to take stock therein, than if the act had never been passed: so that there was nothing to prevent the Constitution taking full effect in its prohibitions against the subscribing of stock by the Counties. In view of this fact the Legislature, on the 9th day of March, 1866, passed an act to amend the charter of the St. Joseph and Iowa Railroad Company, the preamble of which shows that said Company had been prevented from completing the road as required by the terms of its Charter, and the fact is that the construction had not been commenced then, nor on the 1st day of May 1871, when said stock was attempted to be subscribed. This shows that it was admitted and legislatively declared that the Charter had been forfeited, and therefore that the act then about to be passed, was an attempt to revive a defunct charter. And the after provisions of the act carry the same conviction. (See Sess. Acts 1865-6, 223, §§ 1, 5.)

But the subscription under consideration was never made, nor intended to be made to the road under the act of 1857 chartering the St. Joseph and Iowa Railroad Company. Neither in that Act, nor in any Act amendatory thereof, can there be found any authority for said Company to build a branch road.

The fact is, that the road to which, and to the use of which the subscription was pretended to have been made, and in which Sullivan County was to have become a stockholder, is a road attempted to be organized under an Act, March 21st, 1868. (See Sess. Acts of 1868, pp. 90 and 91.)

There is no allegation in the petition that the line of the road as designated by the Act, was never marked, or surveyed, or located so as to advise the Court whether the route of the road ran through, adjoining, or near the County of Sullivan.

By the terms of the Act, only the County Courts of the counties through, adjoining, or near which (see § 6) the route of the road passed could subscribe for stock. Hence the petition is fatally defective.

The Saline County case, ( vide 51 Mo. 350) fully settlen this case against the relator. See Steines et al., vs. Frank lin, 48 Mo., 167; State ex rel., etc. vs. Callaway County vide 51 Mo. 395,

G. D. Burgess and A. W. Mullins, for Respondents.

I. The appellant had no power or authority to rescind the order subscribing stock to the Railroad Company, at a term of its court subsequent to that at which the subscription was made and entered upon the Company's book, and the subscription accepted. (Peak vs. Reed, 14 Mo., 79.) Much less could such rescission be made after the relator had done, and caused to be done, a large amount of work, and expended a great deal of money and incurred heavy liabilities in consequence of such subscription and upon the faith thereof. (Workman vs. Campbell, 46 Mo., 308.)

II. The power of the legislature of this State, before the adoption of the new constitution, to authorize counties and also incorporated cities and towns, to subscribe for stock in railroad companies, has been uniformly upheld and affirmed by this court; and it was unnecessary to submit the matter to a vote of the people unless it had been expressly required by the legislative enactment. (Kansas City, St. J. & C. B. R. R. Co., vs. Alderman, et al., 47 Mo., 349; State, ex. rel., M. &. M. R. R. Co. vs. Macon Co. Ct., 41 Mo., 453; City and County of St. Louis vs. Alexander, 23 Mo., 483.)WAGNER, Judge, delivered the opinion of the court.

This was a proceeding in the Circuit Court of Suan county, by mandamus, to compel the County Court of that county to issue bonds to the amount of $200,000 in compliance with an order of that court, made on the first day of May, 1871, subscribing said amount for and in behalf of said county to the capital stock of the St. Joseph and Iowa railroad company.

The alternative writ sets out the corporate character of the relator, and states in substance that at a meeting of the board of directors, held at St. Joseph in March, 1871, the company projected and undertook the construction of a branch railroad, to be known and designated as the Central North Missouri branch of the St. Joseph and Iowa railroad, said branch road to be built from a point of intersection with the main line of the St. Joseph and Iowa railroad, at or near the town of Unionville, in the county of Putnam, in this State, and running thence southwesterly, through the counties of Putnam, Sullivan, etc.

It is alleged that the County Court of Sullivan county, at a regular term held on the first day of May, 1871, acting under and in pursuance of law, and by the authority of the provisions contained in the charter of the relator, made an order of record subscribing for and in behalf of said county the sum of $200,000 to the capital stock of the relator, for the said branch as above designated. The order reads as follows: “It is ordered by the court here that the county of Sullivan subscribe, and the court does hereby for and in behalf of said county, subscribe two hundred thousand dollars to the capital stock of the St. Joseph and Iowa railroad company, in the name and for the use of the Central North Missouri branch of the St. Joseph and Iowa railroad company, to aid in the construction of said branch railroad through the county of Sullivan, and that the subscription hereby made shall be paid by said county by issuing and delivering, upon the terms and conditions hereinafter specified, the bonds of said county, made by its County Court and duly signed by the presiding justice of said court, and attested by the clerk thereof with the seal of said court affixed; which said bonds are to be of the denomination of one thousand dollars, and to become due and payable twenty years after the date thereof, bearing interest at the rate of seven per cent. per annum from the date, payable semi-annually, with coupons for interest to be attached or annexed to said bonds; said bonds when issued are to be placed in the hands of Warren McCullough, as trustee for said county and the Burlington and Southwestern railway company, which said bonds are to be delivered to the Burlington and Southwesten railway company, subject to the conditions and in the manner following: That the work of constructing said branch railroad in the county of Sullivan shall be begun by said Burlington and Southwestern railway company within six months from the first day of May, 1871, and the construction thereof completed, with the rolling stock thereon, through said county, within twenty-one months from the time of commencing the work; and that as soon as the work of grading on said road shall be commenced in said county, then the bonds in payment of said subscription are to be issued and placed in the hands of said trustee; and as soon as one-fourth the cost of said work in said county is completed, as shown by the report and certificate of the engineer in charge of the work, and said work paid for by said company, then the said county through said trustee, shall deliver to said Burlington and Southwestern railway company forty thousand dollars of said bonds; and when one-half of said work is completed and paid for by said Burlington and Southwestern railway company, then the county is in like manner to deliver forty thousand dollars more of said bonds, and so on until the road is completed through the county and paid for by said company, with the iron and rolling stock thereon, when the last installment of said two hundred thousand in bonds is to be delivered to said company. Provided, however,...