Dallas Cnty. v. Merrill

• Decision Date: 30 April 1883
• Citation: Dallas Cnty. v. Merrill, 77 Mo. 573 (Mo. 1883)
• Parties: DALLAS COUNTY, Plaintiff in Error, v. MERRILL.
• Court: Missouri Supreme Court

77 Mo. 573

DALLAS COUNTY, Plaintiff in Error,

v.MERRILL.

Supreme Court of Missouri.

April Term, 1883.

Error to St. Louis Court of Appeals.

AFFIRMED.

This was a suit against Jacob S. Merrill, the Bank of St. Louis, and the Metropolitan Bank of St. Louis, to compel them to bring certain bonds of the county of Dallas into court to be cancelled. The petition was as follows:

1. That on the 8th day of April, 1873, the following petition was filed in the circuit court of Dallas county:

To the Honorable Robert W. Fyan, Judge of the Circuit Court of the County of Dallas:

The petition of the Metropolitan Bank of St. Louis, Missouri, respectfully showeth: That said petitioner is a corporation, duly incorporated, organized and in existence, under and by virtue of the laws of the State of Missouri; that on or about the 5th day of August, 1869, the county of Dallas, in the State of Missouri, by an order of record, made and declared by the county court of said county, at the August term, 1869, for good and valuable considerations, and under and by virtue of the power and authority conferred upon it by the 14th section of the act next below cited, subscribed the sum of $150,000 to the capital stock of the Laclede & Ft. Scott Railroad Company, a corporation duly incorporated and organized under and by virtue of an act of the general assembly of this State, entitled “An act to incorporate the Laclede & Ft. Scott Railroad Company,” which said act was approved January 11th, 1860, and in payment of said subscription, and under said order, issued 150 bonds of said county of the denomination of and face value of $1,000 each, said bonds being numbered successively from one to 150, inclusive of both numbers, being dated the 1st day of July, 1870, being negotiable and bearing interest at the rate of seven per cent per annum, said interest being payable on the 1st day of January and on the 1st day of July of each year, on the presentation and delivery at the German American Bank, in the City of New York, of the interest coupons attached to each bond; and at the same time, and under and by virtue of the same order, said county made and executed its certain promissory notes, to the number of 6,000, by each of which it promised to pay to the bearer at said bank, the sum of $35, all of said notes being dated on said 1st day of July, 1870, and 150 of them falling due every six months during said period of twenty years, forty of said notes commonly called interest notes, or coupons, being attached to each of said bonds, and being issued for and in consideration of the semi-annual interest on each of said bonds respectively, from the date of its issue until maturity; that by mistake, the date of the said order, under which they were issued, was printed in said bonds as August 17th, 1869, but afterward, to-wit: on or about the 5th day of January, 1871, the issue of said bonds was ratified and confirmed as if said order bore date August 17th, 1869, instead of August 5th, 1869, by the said county court of Dallas county; that afterward, said bonds, with the interest coupons thereon, were delivered by said Dallas county to the said Laclede & Ft. Soott Railroad Company in pursuance of the objects for which they were issued and in the usual course of trade and exchange for value by purchase and assignment from the original holder and various intermediate assignees; that petitioner, before the same were due, became and now is the owner of fifteen of them numbered 1, 2, 5, 8, 9, 10, 11, 12, 13, 14, 19, 21, 22, 23 and 27, and of the interest notes or coupons thereunto attached, for the semi-annual interest due July 1st, 1872, January 1st, 1873, and from those dates to maturity of the bonds; that the semi-annual interest on said bonds due July 1st, 1872, and due January 1st, 1873, is now due and still unpaid thereon; that although upon said 1st day of July, 1872, and said 1st day of January, 1873, and on divers days between then and now, both at the German American Bank, in the City of New York, and at the office of the treasurer of said Dallas county, and elsewhere, payment of said interest notes or coupons has been demanded, yet the said county of Dallas did not pay the same, nor cause the same to be paid, neither did it place funds to pay the same, either at said bank, or elsewhere, nor had it any funds anywhere on said 1st day of July, 1872, or 1st day of January, 1873, nor since those dates, to pay the same, nor has it raised any funds by taxation or otherwise, for said purpose, but has wholly failed, neglected and refused, and still does fail, neglect and refuse to do so, though often thereunto requested. Wherefore your petitioner prays for an order directing and commanding said county court of Dallas county, forthwith, to provide and set apart funds to pay off said interest evidenced by said coupons, which are herewith filed belonging to your petitioner, in such way and by such means as are provided by law; and in case it shall appear, that said county is not possessed of any funds, property, stock, scrip or assets, the proceeds of which can lawfully be applied to the payment of said interest, that the said county be ordered and commanded to levy a tax upon property within it subject to taxation, sufficient to pay the same, and that they apply the same to the payment of said interest notes, and for such other and further orders and relief as shall be adequate and necessary.

2. That on the 8th day of April, 1873, an alternative writ of mandamus was issued out of the circuit court of Dallas county directed against the county court of Dallas county in conformity with the request and prayer of the petition aforesaid.

3. That on the 17th day of April, 1873, the county court of Dallas county, respondent in said alternative writ of mandamus, filed in the circuit court of said Dallas county the following return:

Now comes the respondent, and for return to the alternative writ of mandamus issued in the above cause at the instance of the relator, says: Respondent admits that one John R. Gammon, judge of the county court of Dallas county, and Wm. J. Soafman, clerk of said court, did issue certain bonds and coupons, purporting to be the bonds and coupons of the county of Dallas, to the amount of $150,000, said bonds purporting to be issued in payment of stock to the Laclede & Ft. Scott Railroad Company. But respondent states that said Gammon and said Soafman did said act without authority of said county, and without authority of any law then existing and authorizing them so to do. Respondent admits that on the 5th day of August, 1869, the said county court of Dallas county, did make a conditional order purporting to take stock in the Laclede & Ft. Scott Railroad Company to the amount of $150,000; but avers that said order was made without authority and was and is null and void; that said county court subscribed said stock to said railroad company without, in any way, submitting such subscription to the approval or disapproval of the resident voters of said county, nor were said voters permitted to express by vote their disapproval of said proposed subscription, nor did said voters or any of them, vote for said subscription or in any way authorize said county court to make said order. Respondent denies that the county of Dallas, on or about the 5th day of August, 1869, for a good and valuable consideration, under or by virtue of any law of this State, or by any order of record of the county court of said county, did subscribe the sum of $150,000 or any other sum to the capital stock of said railroad company. Denies that said railroad company is a corporation duly incorporated or organized under or by virtue of any act of the general assembly of this State. Denies that said county did, under or by virtue of any order of said court, at any time afterward, issue the bonds or coupons in the writ described. Denies that said bonds or coupons were afterward delivered by Dallas county to said railroad company. Respondent says that they have not sufficient knowledge or information to form a belief as to whether said bonds or any of them in the usual course of trade and exchange passed into the hands of the relator. Respondent avers, that said supposed order purporting to authorize the issue of the bonds and coupons of said county in payment of said stock, was upon this express condition precedent, viz: That said bonds shall not be issued and delivered, until such time as said railroad bed or grading shall be completed from Ft. Scott, in the state of Kansas, to the western line or boundary of the county of Dallas, ready to receive the cross-ties, or that said railroadbed or grading shall be completed from the point where said road intersects the main line of the Southwestern branch of the Pacific Railroad to the eastern line or boundary of said county of Dallas ready to receive the cross-ties. But, as respondent avers, said condition precedent to the authority to issue said bonds, has never been complied with, said road-bed has never been completed, either from Ft. Scott to the Dallas county line, or from Pacific Railroad to the eastern line of said county; that said bonds were issued without authority, and without any order of said court, authorizing or permitting the same to be done, which fact the relator in this cause well knew, when he came into possession of said bonds and coupons.

And respondent further avers that said supposed order was, after its date and before any of said bonds were issued, revoked, rescinded and set aside, so that when said bonds were actually issued, there was no order taking stock in said railroad company on the records of said court, nor any order authorizing or permitting the issuing of said bonds or coupons. Respondent further answering, says that the writ of mandamus ought not to be made peremptory, because no judgment in favor of the relator has been rendered in any court against said county on said coupons. Wherefore respondent...