State ex rel. Baker v. Greene Cnty. & Greene Cnty. Court

• Decision Date: 31 January 1874
• Citation: 54 Mo. 540
• Parties: STATE OF MISSOURI, ex rel., A. J. BAKER, ATTORNEY GENERAL, Respondent, v. GREENE COUNTY AND GREENE COUNTY COURT, et al., Appellants.
• Court: Missouri Supreme Court

54 Mo. 540

STATE OF MISSOURI, ex rel., A. J. BAKER, ATTORNEY GENERAL, Respondent,

v.GREENE COUNTY AND GREENE COUNTY COURT, et al., Appellants.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Circuit Court of Greene County.

Nathan Bray, with whom were Crawford & Cravens, for Appellants.

I. Under the facts of the case, the County Court of Greene county had power to make the subscription without an affirmative vote of the voters of the county. (1 R. C., 1855, p. 427, § 30; Sess. Acts 1861, p. 60; 22 How., 365.)

II. The act, amendatory of sec. 30 of the act of 1855, passed in 1861, though passed after the act chartering the Kansas City, Galveston and Lake Superior Railroad Company, did not repeal the charter of said company, so far as the right to subscribe stock by a county without a vote first having been had, as was embodied in that charter. Statutes, where they both relate to the same subject matter, must be so construed as to make both effectual, if such a construction can be given them without doing violence to the language of the acts or the manifest intention of the Legislature in passing the laws. A general prohibition to subscribe stock in any corporation may well subsist with a permission to subscribe stock in a particular corporation. (St. Louis vs. Alexander, 23 Mo., 483; State vs. Macon County Court, 41 Mo., 453; Cass v. Dillon, 2 Ohio St., 607; State v. Trustees Union Township, 8 Ohio St., 394; Bacon Abr. “Statute letter D”; Sedg. Com. Law, 123; Dwar. Stat., 532.)

III. This branch road commences and ends at the same places designated for the branch road in the charter of the Kansas City, Galveston and Lake Superior R. R. This right to build this branch road was granted to the old company, and that it transferred that, together with all other rights, to the Kansas City & Cameron R. R. Co., and it by the act of consolidation with the Hannibal & St. Joseph R. R. Co. transferred, and the said H. & St. Jo. R. R. Co. became possessed of, the same right under the charter and the act of consolidation, is admitted by the pleadings. So the Hannibal & St. Joseph R. R. Co. stands just where the old company stood, or would now stand had it not transferred its franchises, &c. So appellants in error maintain that the adoption of the act of March 21st, 1868, by the Board of Directors of the Hannibal & St. Joseph R. R. Co. in nowise affected, altered or changed the power of the county court to subscribe stock to the building of said branch road. The power existed when the subscription was made the same as it did when the act of incorporation of date, Feb 9th, 1857, was passed and by the corporators accepted. That the court then possessed the power to make the subscription without a vote of the tax-payers, is not doubted. If it then had the power, it still has the power. (State vs. Sullivan County, 51 Mo., 522; Smith vs. Clark County, 54 Mo., 58; Grand Chute vs. Winegar, 15 Wall., 385; Nicholay vs. St. Clair County, U. S. Cir. Ct. West. Dist. Mo. [Nov. Term, 1873]; Kenicott vs. Supervisors, 16 Wall., 452; St. Joseph Township vs. Rogers, 16 Wall., 644; R. R. Co. vs. County of Ostoe, 16 Wall., 667; Olcott vs. Supervisors, 16 Wall., 678.)

Bland & Baker, for Respondents.

I. The power granted by the charter of 1857 to the County Court, to subscribe for the stock of the corporation, cannot be construed to confer a power to subscribe for special stock--for stock which carries with it a proprietary interest in a part of the property of the corporation, and not in the whole--in the branch line only, and none in the main line. (Marsh vs. Fulton County,10 Wall.,676; Ranney vs. Baeder, 50 Mo.,600.) No such franchise (to subscribe for stock in a branch line) was vested in the Kansas City, Galveston and Lake Superior Railroad Company under its charter in 1857. How then could such a franchise pass over to the Hannibal & St. Joseph Railroad company by virtue of the consolidation?

II. By the adoption of the act of March 21, 1868, the corporation elected to proceed in the taking of subscriptions and the building of the branch under the act, instead of proceeding, as it might have done, under its chartered powers, to take the subscription authorized by the charter:--and when the corporation elected to avail itself of the provisions of that statute by filing a resolution to that effect with the Secretary of State, as provided in the first section, and proceeded to take stock in aid of building the branch, then the provisions of the statute took hold of the company in respect to that enterprise, and become, by its express provisions, the governing law of all the proceedings in regard to the building of such branch, and they were of controlling force in interpreting the nature and legal incidents of the subscriptions taken, and of the stock to be issued. The subscription being made under the provisions of the statute of 1868, it was a special subscription as distinguished from a general subscription to the stock of the corporation, in that it controls the application of the fund subscribed to the branch in aid of which it was made; and in that it entitles the subscriber to special stock limited to the branch line, instead of general stock carrying an interest in the main line and branches; and this is so by the operation of the statute itself, which determines the kind of stock to be issued.

III. This act of March 21, 1868, under which the subscription was made, could not confer the authority on the County Court to make the subscription without first ordering an election, because it was within the prohibition of the constitution. It must be obvious, therefore, that there was no power whatever in the County Court to make the subscription, issue the bonds and levy the tax in question, and its acts in the premises were clearly without lawful authority, and absolutely void.

WAGNER, Judge, delivered the opinion of the court.

Whether this suit was properly brought, or whether an injunction would lie under the circumstances disclosed in the bill, I will not stop to inquire into, as both parties have expressed a desire to have the case determined on the merits. The simple question is, whether the County Court of Greene county had the power to make the subscription, that it did in the railroad hereinafter referred to, without first being authorized by the vote of the people? The court below decided against the power, and awarded a perpetual injunction against making any collections for the purpose of paying the county indebtedness in consequence of the subscriptions.

The facts set up in the answer, and admitted by the demurrer, are: That the General Assembly of the State of Missouri incorporated the Kansas City, Galveston & Lake Superior Railroad Company, by an act approved February 9th, 1857; that in pursuance of said act of incorporation, the corporators named in the act duly organized themselves on the 11th day of May, 1857, under the name and style aforesaid; that, by the provisions of the said act, the said railroad company was authorized to construct a branch railroad, commencing at or near the city of Kansas, to any point on the southern boundary of the State, which the directors thereof should select, to connect with any road or roads leading to or in the direction of Memphis, Tennessee, or Napoleon, in the State of Arkansas; and that the County Courts of any county, through which any part of said railroad or its branches may be, or of any county adjoining thereto, were authorized to subscribe to the stock of the said railroad company, and to issue bonds of such county to raise funds to pay the same; and, for the purpose of said act, to appoint an agent to subscribe for stock to said railroad in the name of and on behalf of said county or counties; and that on the 13th day of February, 1864, the legislature, by an act entitled an act to amend an act to incorporate the Kansas City, Galveston & Lake Superior Railroad Company, authorized the Board of Directors thereof to at any time change the name of the said company; and that the board of directors of the company did afterwards in the year 1864 change the name of said company to the Kansas City & Cameron Railroad Company, and that, by the terms and provisions of said last act, the Kansas City and Cameron Railroad company acquired, possessed and retained all the rights, privileges and franchises, which existed under and by virtue of the charter of the Kansas City, Galveston & Lake Superior Railroad Company; that by another amendatory act, which was approved March 11th, 1867, it was provided, that it should be competent for the said Kansas City & Cameron Railroad company to consolidate their said railroad company with any other railroad company, on such terms as should be deemed just and proper, and that afterwards in the year 1870 the said Kansas City & Cameron Railroad company did consolidate with the Hannibal & St. Joseph Railroad company, by virtue of which consolidation the Hannibal & St. Joseph Railroad company became the owners of, and possessed of, all the rights, property, privileges, immunities and franchises, which the said Kansas City, Galveston & Lake Superior railroad had and possessed by virtue of its charter and of the said acts of the Legislature amendatory thereto, or which the Kansas City & Cameron Railroad Company had by virtue of the charter of the Kansas City, Galveston & Lake Superior Railroad company, and the amendatory acts to its charter; that on the 3d day of October, 1869, the Kansas City & Cameron Railroad Company, by a resolution adopted by the Board of Directors of said company, at a meeting held in Kansas City in pursuance of its by-laws, resolved, that the Kansas City & Cameron Railroad Company was desirous of availing itself of the provision of the general laws of the State authorizing railroad companies to construct branch railroads, approved March 21st, 1868, and of the provisions of the Kansas City & Galveston R. R. Co. in relation to the...