Bd. of Comm'rs for Filling up Certain Slough Ponds in St. Louis v. Shields

Decision Date31 January 1876
Citation62 Mo. 247
PartiesTHE BOARD OF COMMISSIONERS FOR FILLING UP CERTAIN SLOUGH PONDS IN THE CITY OF ST. LOUIS, &C., Appellants, v. JOHN SHIELDS, et al., Respondents.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court.

R. E. Rombauer, for Appellants.

I. A corporation connected with an existing municipal corporation, and constituted for the purpose of carrying out some of the known objects of the municipality, is a corporation for municipal purposes, and thus within the exception of Art. VIII, § 4 of the Constitution of 1865. (State ex rel. Chouteau vs. Leffingwell, 54 Mo. 458-472; The People ex rel. South Park Commissioners vs. Salomon, 51 Ill., 37; Horton vs. Mobile School Commissioners, 43 Ala,. N. S. 598, 607.)

II. Respondents having dealt with the corporation as such cannot object to the validity of its organization. (Camp vs. Byrne, 41 Mo. 525; Meadow Dam Co. vs. Gray, 30 Me. 547, 549; Farbell vs. Page, 24 Ills. 46; Cooley's Const. Lim. p. 254.)

III. The fact that the objection is made to the constitutionality of the law makes no difference, as constitutional objections may be waived by parties as well as other objections, and they may be precluded by their prior action from being heard in support of the objection. (Cooley's Const. Lim. p. 180; Baker vs. Braman, 6 Hill, 47; Lee vs. Tillotson, 24 Wend. 339; People vs. Murray, 5 Hill, 468.)

IV. The existence of the corporation plaintiff in this case, cannot be collaterally questioned be a plea of nul tiel corporation; the respondents having recognized its legal existence, that existence can be contested only by proceeding in quo warranto on behalf of the state. (Cooley's Const. Lim. p. 254; Kayser vs. Trustees of Bremen, 16 Mo. 88, 90; State vs. Carr, 5 N. H. 367; President and Trustees of Mendota vs. Thompson, 20 Ill., 197, 200.)

Given Campbell, for Respondents.

Plaintiff is not a “corporation for municipal purposes,” Dill. Munic. Corp. § 9 a; Cool. Const. Lim. p. 210; Heller vs. Stremmel, 52 Mo. 310; and in the Forest Park case in the opinion of Judge Adams on the rehearing, 54 Mo. 448; alcorn vs. Hammer, 38 Miss. 652; Cheaney vs. Hoosier, 9 B. Monroe, 330; 34 New Hampshire, 266; Ang. & A. Corp. § 31.

WAGNER, Judge, delivered the opinion of the court.

In this case the defendants seek to draw in question the validity of the act incorporating the plaintiff, approved March 14, 1872. (Sess. Acts 1871-2., p. 466.) The plaintiff filed its petition in the circuit court stating that it was a corporation for municipal purposes, and it alleged that certain blocks of land and the streets and alleys running through the same, being the territory described in the act of incorporation, were at and anterior to the 18th day of April, 1872, in such a condition as to be a public nuisance, and were thereupon, on the last named day, in conformity with the act above recited, declared to be a public nuisance by the Board of Health of the y of St. Louis; that thereupon the plaintiff, having first complied with the precedent conditions mentioned in the act, awarded the contract for filling up said slough ponds to Wm. H. Lyman and Enoch Stillwell, and on the 22d day of June, 1872, entered into a written contract with said Lyman & Stillwell, which contract is fully set out in the petition.

The contract recited the act of the general assembly under which the Commissioners were acting, and appears to have been made by the Commissioners in their corporate capacity, and is signed by the president and secretary and has the corporate seal annexed, in accordance with the act of incorporation. The contract, as recited, among other things provides, that Lyman & Stillwell bind themselves to fill up within one year from and after the 10th day of June, 1872, on the premises therein described, three hundred and thirty-three thousand four hundred and sixty-three cubic yards of earth.

The petition further recites that Lyman & Stillwell thereupon gave bonds in the penal sum of twenty thousand dollars with the defendants as their securities for the faithful performance of their contract, which bond by its terms was given and payable “to the Board of Commissioners for the filling up of certain slough ponds in the city of St. Louis, under an act of the general assembly of Missouri, approved March 14, 1872, and their successors and legal representatives;” and was conditioned that “said Lyman & Stillwell shall in all things well and truly execute, perform and carry out all the terms, stipulations and obligations of said contract, and perform the work therein contracted for as therein required, and comply with the requirements of said law, and faithfully respond to, and satisfy, all claims and demands which may be lawfully made against them under said contract.”

The petition further states that Lyman & Stillwell never performed any work under the contract, whereupon the contract and bond were declared forfeited and broken in conformity with a provision in the act. Breaches were then set out and a judgment prayed for the penalty and for damages.

To the petition defendants interposed a demurrer stating as grounds therefor, that the plaintiff had no legal capacity to sue, there being no such corporation as the plaintiff, because the act of the general assembly, under which plaintiff claimed existence, was in violation of the 27th section of Art. 4, and of the 4th and 5th sections of Art. 8th of the Constitution of this State, and was therefore void, and that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained and plaintiff failing to plead further final judgment was rendered for the defendants, and this appeal was then prosecuted.

The 27th section of Article 4 of the Constitution, in force when this cause was tried, prohibited the legislature from passing a special law in any case for which provision could be made by a general law. This point however has not been in sisted upon in this court, as under the prior decisions it has been held, that the...

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