Barton Cnty. v. Walser
| Decision Date | 31 January 1871 |
| Citation | 47 Mo. 189 |
| Parties | BARTON COUNTY, Respondent, v. G. H. WALSER, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Third District Court.
T. T. Gantt, for appellant.
The relation of the State to the swamp lands, in the first instance, under the grant of them by Congress of September 28, 1850, was that of absolute proprietor. As long as the lands were held by any county of the State they remained subject to disposition by the State. A county is not an independent individual person having rights of property with which the State can not meddle, but is a mere local agency employed by the State for the purpose of municipal government, and liable to have its very existence determined and ended if the State shall so decide. (Conner v. Bent, 1 Mo. 235; Hamilton v. St. Louis County Court, 15 Mo. 3 et seq.;People v. Power, 25 Ill. 190; East Hartford v. Hartford Bridge Co., 10 How. 533.)
If the State retained the power of disposing of these lands, which was true unless the respective counties had disposed of them to individuals, the act of March 26, 1868, operated as such a disposition in favor of the persons named in the deeds or patents made or issued by the counties in favor of the purchasers of swamp lands. It operated as such a disposition from March 26, 1868, only. No retrospective effect is claimed for it; no rights can be defeated by it. The obligation of no contract can be impaired by it. All that it can do, and all that it claims to do, is to confirm by law, to the purchasers named in the conveyances made for swamp lands by the several counties, the title to the lands described in such deeds, such confirmation taking effect as of that day (March 26, 1868) and having the same efficacy as if patents had been then issued by the governor of the State to the purchaser, according to section 4 of the act of March 3, 1851. (Strother v. Lucas, 12 Pet. 410 et seq.)
Counties occupy a relation toward the State quite different from that which any private, independently existent person can occupy. From the nature of its constitution, the State has, and can not divest itself of, complete control over them and their property (so called). It can no more divest itself of this than it can abdicate any other part of its sovereignty. But whenever the State, either directly or by any of its agencies or instrumentalities, enters into contracts or engagements with an individual capable of having a beneficial interest in any subject-matter, then the State is as much bound in morals to fulfill its engagement as an individual would be; and so far as the action of the State in derogation of such contract or engagement is inhibited, either by the constitution of the United States or of the State, such action is a nullity.G. H. Walser, pro se.
John S. Phelps, attorney of J. M. Richardson; and T. A. Sherwood, attorney for heirs of W. M. Chenault and W. F. Cloud.
I. The deeds recited in the agreed statement of facts were sufficient, although somewhat informal, and passed the title of the county. (Jamison v. Fopiana, 43 Mo. 565, and cases cited.)
II. If defects in substance as well as in form existed either in the deeds or in their acknowledgments, they were cured by the act of March 26, 1868 (Sess. Acts 1868, p. 67), and that act is not unconstitutional. A county is part and parcel of the State, “but an agency of the State government,” and “can have no property which may not be taken away by the effect of legislation.” (State v. St. Louis County, 34 Mo. 546; Cooley on Const. Lim. 240.) The curative act of 1868 may well be regarded not as one “legalizing as against the State the unauthorized or invalid acts of any officer,” but as an act prohibiting that agent from asserting title to lands which had been by that agent previously granted away; or the act may be regarded as a legislative grant. (See authorities cited below.)
J. P. Ellis and J. F. Hardin, for respondent.
I. The title to said land was fully vested in Barton county by legislative grants. (Sess. Acts 1857, p. 32; Strother v. Lucas, 12 Pet. 411; Field v. Seabury, 19 How. 323-33; Rice v. R.R. Co., 1 Black, 358; Lessieur v. Price, 12 How. 59; Flecker v. Peck, 6 Cranch, 128; Ashley v. Cramer, 7 Mo. 98; Harold v. Simmons et al., 9 Mo. 323; 37 Mo. 338; 45 Mo. 443; Griffing v. Gibbs, 1 McAl. 212; Grignon v. Astor, 2 How. 319; Dunklin County v. Dunklin County Court, 23 Mo. 449; Enfield v. Way, 11 N. H. 520; Enfield v. Permit, 5 N. H. 280; Wilcox v. Jackson, 13 Pet. 498.)
II. The deeds from J. N. Bruffy to J. M. Richardson, dated November 12, 1858, and May 26, 1859, were void and properly so declared by the court; and so were the deeds by Mathews and Timmonds, as county justices, dated December 3, 1859, and February 6, 1861. All of these deeds show on their faces that the laws were not complied with, and that they were executed without authority. The doctrine is well settled that a public officer must act in strict compliance with the act creating the power he assumes to execute. (Sess. Acts 1857, pp. 49-50; R. C. 1855, p. 1006, § 4; Sess. Acts 1859, p. 358.) There never was any authority for a commissioner to make a deed to any of these lands, and county justices could only make deeds to lands sold in a particular manner. None of the legislative acts were observed in these cases. The agency being special, not coupled with any interest in the officer, everything done is void, unless in strict conformity with the authority. The county being a corporation, could do no act except as authorized by law. Counsel here reviewed the specific points of objection to the several deeds offered by defendant.
III. The act of the 26th of March, 1868, is wholly retrospective and void. The subsequent approval by the court of the sale by McFarland could not assist the validity of the sale. Our constitution differs materially from nearly every other State constitution in forbidding all retrospective legislation. The act of 1868, declaring these deeds valid, is an invasion of the functions of the judiciary, and hence void. (Jones' Heirs v. Perry %Iet al., supra; Officer v. Young, supra; Van Zandt v. Waddell, supra; Tate's Ex'r v. Bell, supra.)
The act still further deprives the county of vested rights in this: that it undertakes to make that valid which was void. (Commissioners of Shannon County v. Carter, 2 Kan. 115.) This is a parallel case to the one at bar. (Watson v. Werner, 8 Pet. 108; Hope Ins. Co. v. Flynn, 38 Mo. 483.) The county was a corporation, hence a “person” within the meaning of that provision of the constitution of the United States which declares that no person “shall be deprived of property without due process of law.”
This was an action of ejectment brought in the Barton County Circuit Court to recover the possession of certain real estate which had been donated to...
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