City of St. Louis v. Alexander

• Decision Date: 31 October 1856
• Citation: 23 Mo. 483
• Court: Missouri Supreme Court
• Parties: CITY OF ST. LOUIS & COUNTY OF ST. LOUIS, Appellants, v. J. H. ALEXANDER & OTHERS, Respondents.

23 Mo. 483

CITY OF ST. LOUIS & COUNTY OF ST. LOUIS, Appellants,

v.J. H. ALEXANDER & OTHERS, Respondents.

Supreme Court of Missouri.

October Term, 1856.

1. An act of the general assembly entitled “An act to reduce the law incorporating the city of St. Louis, and the several acts amendatory thereof, into one act, and to amend the same,” approved February 8, 1843, contained the following provision: “The city shall not, at any time, become a subscriber for any stock in any corporation.” By a special act, approved March 1, 1851, enacted while the above general prohibition was in force, the city was authorized to subscribe to the stock of the Ohio and Mississippi railroad company, any amount not exceeding the sum of $500,000. An amended city charter, also entitled “An act to reduce the law incorporating the city of St. Louis, and the several acts amendatory thereof, into one act, and to amend the same,” approved March 3, 1851, contained the provision, above set forth, that “the city shall not, at any time, become a subscriber for any stock in any corporation” (Art. VII, § 13, Sess. Acts, 1851, p. 168); and also the following (see Art. VII, § 25), that “all acts and parts of acts contrary to and inconsistent with the provisions of this act, or within the purview thereof, &c., are hereby repealed.” These several acts took effect from their passage. Held, that the act of March 3, 1851, did not repeal the special enabling act of March 1, 1851, and that a subscription under the act of March 1, 1851, to the stock of the Ohio and Mississippi railroad company, made by the city of St. Louis, was authorized by law and valid, and that the city thereby became a legal stockholder in said company.

2. The county of St. Louis, by an act of the general assembly, approved January 26, 1853, was authorized to subscribe the sum of $200,000 to the capital stock of the Ohio and Mississippi railroad company. Said act also contained the following provision: “Before the subscription hereby authorized shall be made, the county court of the county of St. Louis shall submit the question of making said subscription to the qualified voters of said county; and if a majority of those voting shall be in favor of such subscription, the county court shall at once proceed to make the same for the county.” Held, 1st, that this act, under the general law (see R. C. 1845, 695), took effect ninety days after its passage, a different time not being appointed therein; 2d, that the provision requiring the county court to submit the question of making the subscription to the qualified voters of the county is not merely directory, but that it would be illegal for the county court to make the subscription without first submitting the question of making the subscription to the voters of the county as required in the act; 3d, that the act must be in force before the question of making the subscription can be lawfully submitted to the qualified voters of the county; 4th, that the provision requiring the question of making the subscription to be submitted to the voters of the county was constitutional.

3. Upon the dissolution of an injunction restraining the sale, under a deed of trust, of the property, effects, franchises, &c., belonging to a railroad company, it is erroneous for the court, without proof, to assess the damages at six per cent. upon the amount released by the dissolution; the damages assessed in such a case should be commensurate with the actual injury sustained, and may, if the circumstances warrant it, exceed ten per cent. upon the amount enjoined.

Appeal from St. Louis Court of Common Pleas.

This was a petition for an injunction by the city of St. Louis and the county of St. Louis “for themselves and such other stockholders of the Ohio and Mississippi railroad company as may voluntarily become parties plaintiff hereto.” The defendants were Joshua A. Alexander, Daniel D. Page, Henry D. Bacon, Thomas Brown, Edward Wyman, The Ohio and Mississippi Railroad Company, Daniel R. Garrison, William H. Belcher, Samuel Gaty.

The petition sets forth substantially that the Ohio and Mississippi railroad company was incorporated by the legislature of the state of Illinois on the 12th of February, 1851; that by said act of incorporation said company was empowered to borrow money for the purpose of completing and furnishing or operating their railroad, and “to mortgage their corporate property and franchises, or convey the same by deed of trust to secure the payment of any debt contracted for the purpose” of completing, &c., said railroad; that “it was further enacted by said act of incorporation, that all the corporate powers of said company should be vested in and exercised by a board of directors, to consist of not less than seven nor more than seventeen in number, and such other officers, as agents and servants, as they should appoint;” that by an act of the general assembly, approved March 1st, 1851, the city of St. Louis was authorized to subscribe to the stock of the Ohio and Mississippi railroad company any amount not exceeding the sum of $500,000; that by act of the general assembly, approved January 26th, 1853, the county of St. Louis was authorized to subscribe to the stock of the Ohio and Mississippi railroad company the sum of $200,000; that the city of St. Louis did subscribe to the stock of said railroad company the sum of $500,000, and issued its bonds for that amount; that the county of St. Louis subscribed $200,000, and issued its bonds for that amount; “that on the 5th day of June, in the year 1855, certain persons claiming to act on behalf of the Ohio and Mississippi railroad company, did set their hands and seals and the seal of said company to an instrument of writing, purporting to be a deed of trust of that date, executed by the Ohio and Mississippi railroad company of the first part, Joshua H. Alexander of the second part, and Page & Bacon of the third part, which instrument of writing purported to convey to the said Alexander all the real estate, right, title, interest, claim and demand of said company of, in and to any real estate in the state of Illinois, which had been or might hereafter be acquired by said company, for and towards the construction of the railroad which said company is by its act of incorporation authorized to construct in the said state of Illinois, and for and towards the construction of the engine-houses, car-houses, depots and other tenements, or for any other purpose connected with said road; and all the tenements, road tracks, rails, bridges, and other fixtures whatever, which might be placed or constructed by said company, or any real estate which might be owned, held, used or occupied by it; and all engines, locomotives, tenders, cars, machinery, and all other property of whatsoever kind which were then or thereafter might be owned by said company; and all tolls, income, revenue, issues and profits of the property thereby conveyed; and all privileges, franchises, easements, rights and interests whatsoever, then possessed, used or enjoyed, or which might thereafter be acquired or possessed by said company;--in trust, however, for the following purposes: Whereas the said company had become indebted to Page & Bacon, on account of the construction and equipment of said road, in the sum of $1,158,484.61; and whereas the said company did, by a resolution duly entered on their records, authorize to be executed to the said Page & Bacon, the promissory note of the said Ohio and Mississippi railroad company, bearing even date with said deed of trust, and payable five days after date thereof, for the sum of $1,158,484.61, with interest from date; and whereas the said board of directors did at the same time, to-wit, the 5th day of June, 1850, further order that the payment of said note should be secured to the said Page & Bacon by a deed of trust, to be executed by Daniel R. Garrison, vice-president, on behalf of said company, upon its said road and the other property, rights, privileges and effects hereinbefore conveyed, which said deed of trust should be a lien upon said road and other property, rights, privileges and effects of said company, under which authority and for which purpose said deed of trust was executed; if said note, with the interest thereon, should be paid by said company at or before the time the same was made payable, then said deed should be void; but if default should be made in the payment of said note and interest, then the said trustee or his successors in office, to be appointed as in said deed was afterwards provided, should have full power, when notified in writing of such default by said Page & Bacon or their assigns, and thereunto required in writing by said Page & Bacon o assigns, to enter into and upon, and take possession of said premises in said deed conveyed in person or by his agent, and receive the income, earnings, issues and profits and proceeds thereof for the accomplishment of the objects and purpose of said deed, and that said trustee should appropriate said income and earnings, issues and profits and proceeds, first, to the payment of the necessary expenses of keeping said road, and the engines, locomotives, tenders, cars and other appurtenances thereof in repair, and of conducting the business of said road in a full and efficient manner; and the surplus, if any there should be, should be paid from time to time to the said Page & Bacon or assigns, on account of the said note, until the same should be fully paid and discharged, when the premises should be redelivered to said company or its legal representatives;-- and in and by said instrument of writing it was further provided that said trustee and his successors should have power, a might be needed to satisfy said note, to sell and dispose of said premises, in whole or in part, upon the request in writing of said Page & Bacon or assigns, at public auction, for cash; and upon such sale to deliver to the purchaser or purchasers...