Newmeyer v. Missouri & Mississippi R.R. Co.

• Decision Date: 28 February 1873
• Citation: 52 Mo. 81
• Court: Missouri Supreme Court
• Parties: J. S. NEWMEYER AND JOHN B. CLARK, Appellants, v. THE MO. & MISS. R. R. COMPANY, et al., Respondents.

52 Mo. 81

J. S. NEWMEYER AND JOHN B. CLARK, Appellants,

v.THE MO. & MISS. R. R. COMPANY, et al., Respondents.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Macon Circuit Court.

James Carr, for Appellants.

I. In case of misfeasance or malfeasance of the County Court, a tax-payer or tax-payers may bring a suit on behalf of himself or themselves, and all others similarly interested. (Hooper vs. Ely, 46 Mo., 505; Steines vs. Franklin County, et al., 48, Mo., 176; Wood vs. Draper, et al., 24 Barb. 187; DeBaun vs. The Mayor, &c., of New York, 16 Barb. 392; Stuyvesant vs. Pearsall, et al., 15 Barb. 244; Milhau vs. Sharp, Barb. pp. 218, 219; Christopher vs. Mayor, &c., of New‘York, 13 Barb. 567; Shephard vs. Wood, et al., 13 Howard, Pr. 47; 2nd, Redfield Railways 362; Burt vs. British Life Insurance Association, 5 Jur. N. S. 612; Mandaville vs. Riggs, 2 Pet, 482; Smith et al. vs. Swormstedt et al., 16 Howard, 288; Bacon vs. Robertson, et al., 18 How. 480; Dodge vs. Woolsey, 18 How. 331; Whitney vs. Mayo, 15 Ill., 251; Sweet vs. Hulbert, 51 Barb. 312.)

II. There are cases in equity, where it is not necessary to have all the parties in interest before the Court; as where the parties are very numerous, beyond the jurisdiction of the Court, or unknown. (Story's Equity Pleading, §§ 101, 102, 103, 116, 117, 157, 207, b., 216, note 2 to section 100; Egbert vs. Wood, 3 Paige, 517; Brown vs. Ricketts, 3 Johns. Chan. 553; Wiser vs. Blackly, 1 Johns. Chan., 437; Wakeman vs. Grover, 4 Paige, 22; Smith, et al. vs. Swormstedt, et al., 16 Howard, 288; Dodge vs. Woolsey, 18 How., 331; Bacon vs. Robertson, et al., 18 How., 480; Arkenburgh vs. Wood, 23 Barb. 360; Shephard vs. Wood, 13 Howard Pr., 47; McKenzie vs. L'Amoureaux, 11 Barb. 516; Zabriskie vs. Cleveland, Columbus & Cincinnati Railroad Co., 23 Howard, 395.)

R. T. Prewitt, for Respondents.

The plaintiffs do not show any such special interest in the subject matter of this petition as to authorize them to bring this suit. (Davis & Palmer vs. The City of N. Y., 2 Duer., 663; Same case, 1 Duer., 479; Doolittle vs. Supervisors of Brown Co., 18 N. Y., 155; Miller vs. Grandy, 13 Mich., 540; People vs. Regents, &c., 4 Mich., 98; 4 Mich., 187; State vs. Saline Co., 51 Mo., 350; Roosevelt vs. Draper, 23 N. Y., 318.)

The plaintiffs show no equity in themselves, or any special injury to them, authorizing them to invoke the equity powers of this court. (State to use Connelly vs. P. G. R. R. R. Co., 32 Mo., 496; Sayre vs. Thompkins, 23 Mo., 443; Barrow vs. Davis. 46 Mo., 394; Lockwood vs. St. Louis, 24 Mo., 20; 1st Nat. Bk. of Hannibal vs. Meridith, 44 Mo., 500; Vitt vs. Owens, 42 Mo., 512.)

Williams, Jones & Eberman, for Respondents, cited: Saline County case, 51 Mo., 350.

Chandler & Sherman, for Respondents.

When a right common to all citizens of a municipal corporation is infringed upon or violated, or a wrong is committed against all said citizens, in common, the injury must be remedied by proper legal proceedings, instituted by the agent of the public or State. (Roosevelt vs. Draper, 23 N. Y., 318; Doolittle vs. Supervisors of Broome County, 18 N. Y., 155; 4 Kernan, 534; 4 Duer., 192; 14 N. Y; 2 Johnsons Ch., 428-9, and 433-4; 14 Eng. Ch. Rep., 123 and 613.)

EWING, Judge, delivered the opinion of the court.

This was a petition in the nature of a bill of equity filed by the plaintiffs on behalf of themselves and all other citizens and tax-payers who are similarly interested with themselves to set aside an order of the County Court of Macon county making a subscription of $175,000, to the capital stock of the Missouri and Mississippi Railroad Co., and to have the same declared null and void, and to have the bonds issued to pay said subscription delivered up and cancelled. The bill alleges that plaintiffs were and are owners of a large amount of real estate and personal property situated in said county, and are tax-payers on the same; that in 1867 the County Court of Macon county subscribed $175,000, to the capital stock of said railroad company without the assent of two-thirds of the qualified voters of said county, no election regular or special having been held for the purpose of obtaining said assent; that bonds of said county have issued to the amount of said stock, &c. that in order to raise more money for said road, the further sum of $175,000, was subscribed to the capital stock in 1870. That said last subscription was the result of a corrupt and fraudulent combination and arrangement between the railroad company and the County Court, whereby the judges of said court were to derive large pecuniary gains and advantages; that bonds were issued by said court in payment of said subscription and placed in the hands of defendants, Bartholow, Lewis & Co., bankers, for the purpose of having them negotiated to innocent purchasers for value without notice of the fraud by which said railroad company had procured them. The bill further alleges the act authorizing said subscription is unconstitutional and void; that said subscription was made without authority of law, by collusion and in confederation with said railroad company and in fraud of the rights of the plaintiffs and other citizens and tax-payers of said county, for private advantages and gain and to subserve the individual purposes and ends of said justices of the County Court and other parties connected with them.

Defendants demurred to the petition on these grounds:

That the petition does not state facts sufficient to constitute a cause of action. There is a defect of parties plaintiff. There is a defect of parties defendant. Because plaintiffs do not show any such irreparable injury to themselves as to authorize the interposition of a Court of Equity. The court sustained the demurrer, the plaintiffs declining to file an amended petition, final judgment was rendered on said demurrer. The cause is here by appeal.

It seems not to be seriously questioned that upon the facts stated in the petition, which are of course admitted by the demurrer, the plaintiffs are entitled to the relief prayed for if they can maintain the action; and the only remaining question that we deem it proper to consider is, whether the plaintiffs as tax-payers of Macon county have stated a title for the relief which they claim against the defendants; in other words, whether as such tax-payers, they have such an interest in the subject matter of the suit as entitles them to maintain this action. I am not aware that this question has ever been passed upon by this court. In the case of Hooper vs. Ely, 46 Mo., 505, the plaintiff as a tax-payer obtained an injunction against the treasurer to restrain him from paying a certain county warrant upon the ground that it was issued without authority of law, and also asked for an order upon the defendant, the holder, to bring it into court to be canceled. The only interest the plaintiff had in the subject matter of the suit was that of a tax-payer of the county, and his right to maintain it was unquestioned.

The only other case similar to the one at bar was that of Steines, et al., vs. Franklin county, et al., 48 Mo., 167, which was a petition in the nature of a bill in equity brought by the plaintiffs as citizens and tax-payers of Franklin county, asking for a decree declaring a contract and certain orders of the County Court of said county void, and requiring a cancelation and delivery of bonds issued under said contract and for an injunction restraining their payment, sale or transfer, and restraining the assessment, levy or collection of a tax for the purpose of their payment. No point was made as to the right of the plaintiffs as tax-payers to maintain the action.

The grounds upon which such suits by tax-payers have been held unmaintainable, are that it requires some individual interest distinct from that which belongs to every inhabitant of the town or county to give the party complaining a standing in court, where it is an alleged delinquency in the administration of public affairs which is called in question; and that the ownership of taxable property is not such a peculiarity as to take the case out of the rule; and that the only remedies against an abuse of administration power tending to taxation is furnished by the elective franchise or a proceeding on behalf of the State, or, in the case of an act without jurisdiction, in treating the attempt to enforce the illegal tax, as an act of trespass. (Denio, J. in Roosevelt vs. Draper, et al., 23 N. Y., 318; see also Doolittle, et al., vs. Supervisors, &c., 18 N. Y., 155.) The case of Roosevelt vs. Draper, supra, decided in 1861, is the latest decision on the subject in the Court of Appeals, to which our attention has been called. We have been referred, however, to a number of earlier decisions in the courts of that State which hold a contrary doctrine--recognizing the right to maintain such suits; and they have been followed in several of the other states.

The first of these that will be noticed is the case of Christopher, et al., vs. The Mayor, et al., 13 Barbour, 567, which was a proceeding by injunction to restrain defendants from acting under a resolution of the board of aldermen relative to the rebuilding of a market. Held, that plaintiffs as tax-payers had such an interest as entitled them to the relief they asked; that as the necessary effect of the act complained of would be to impose a burden upon their real estate, they had an interest as certain and direct as that of a stock-holder in a moneyed or other corporation. So in the case of Milhau vs. Sharp, 15 Barb. 195, which was an application for an injunction to restrain defendants from constructing a railway in a certain street of the city of New York, the court say, plaintiffs being tax-payers to a large amount, have such an interest in preventing the grant in question from being carried into effect, that they had a right to institute the suit in their own names. To the same effect is ...