Douglass v. County of Pike

• Decision Date: 01 October 1879
• Citation: 25 L.Ed. 968,101 U.S. 677
• Parties: DOUGLASS v. COUNTY OF PIKE
• Court: U.S. Supreme Court

101 U.S. 677

101 U.S. 677

25 L.Ed. 968

DOUGLASS v. COUNTY OF PIKE.

October Term, 1879

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

This was an action by Joseph M. Douglass on three hundred and twenty-one overdue coupons detached from bonds issued by the county to Pike, Missouri. The bonds are in the following form:——-

'No. ___.] STATE OF MISSOURI. [$500.00.

PIKE COUNTY BOND.

'Issued in payment of Stock of the Pike County Short Line Railroad Company.

'Know all men by these presents, that the county of Pike, in the State of Missouri, acknowledges itself indebted and firmly bound to the Pike County Short Line Railroad Company in the sum of five hundred dollars, which sum the said county promises to pay to the said Pike County Short Line Railroad Company, or bearer, at the National Bank of the State of Missouri, in St. Louis, Mo., on the first day of January, A.D. 1892, with interest thereon from the first day of January, A.D. 1872, at the rate of ten per cent per annum; which interest shall be payable semi-annually on the presentation and delivery at said National Bank, of the coupons of interest hereto attached; this bond being issued under and pursuant to an order of the county court of Pike County, by authority of an act of the General Assembly of the State of Missouri, approved March 23, 1868, entitled 'An Act to facilitate the construction of railroads in the State of Missouri,' and authorized by vote of the people of Cuivre Township, in said county, taken as required by law, Feb. 7, 1871.

'In testimony whereof, the said county of Pike has executed this bond, by the presiding justice of the county court of said county, under the order thereof, signing his name hereto, and by the clerk of said court, under the order thereof, attesting the same and affixing the seal of said court; this done at Bowling Green, county of Pike aforesaid, this first lay of January, A.D. 1872.

'[SEAL.] A. G. GRIFFITH,

'Presiding Justice of County Court of Pike County, Missouri.

'Attest:

H. C. CAMPBELL,

'Clerk of County Court of Pike County, Missouri.

The declaration avers that the county, in behalf of said township, subscribed for and received and retains the stock of said railroad company to an amount equal to the bonds, and paid the coupons falling due up to Jan. 1, 1876; that the road was built through the township; that the subscription was authorized by a vote duly taken, as required by law, on the seventh day of February, 1871; that he is the holder for value of the coupons sued on, and that he duly presented them for payment at said bank as they became due, and that payment was refused.

Judgment was rendered in favor of the defendant on its demurrer to the plaintiff's declaration, the question involved being the constitutionality of the act whereof mention is made in the bonds.

The plaintiff thereupon sued out this writ of error.

Mr. John H. Overall and Mr. Frederic N. Judson for the plaintiff in error.

Mr. George F. Edmunds and Mr. Thomas J. C. Fagg for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

We are asked to reconsider our decision in County of Cass v. Johnston (95 U. S. 360), because since that case the Supreme Court of Missouri, in State, ex rel. Woodson, v. Brassfield (67 Mo. 331), and Webb v. La Fayette County (id. 353), has held the Township Aid Act, which we sustained, to be unconstitutional. The question presented, as we view it, is not so much whether these late decisions are right, as whether they should be followed in cases having reference to bonds put out and in the hands of innocent purchasers when they were announced. In the Cass County case we said that the Supreme Court of the State had often been called on to construe and give effect to the act, and had never before that time in a single instance expressed even a doubt as to its validity. We have again examined all the cases, and find that what we then said was true. Judge Dillon, who filled the office of circuit judge in the eighth circuit with such distinguished ability during nearly all the time the act was in operation, from its original passage until after the recent decisions, remarked in Westerman v. Cape Girardeau County, 7 Cent. Law Jour. 354; 'A hundred cases—and I do not think I exaggerate—have been brought on these township bonds in the Federal courts of this State, and prior to the decision in Harshman v. Bates Co. (92 U. S. 569), none of the able lawyers defending these cases ever made a point that the act of March 23, 1868, was unconstitutional.' The reason is obvious. At the very outset it was thought best to take the opinion of the Supreme Court of the State on that subject. The act went into operation in 1868, and in 1869 The State v. Linn County (44 Mo. 504) was decided. There a township had voted to subscribe to the stock of a railroad company, and the county court had made the subscription; but after this was done the court refused 'to deliver the bonds, for the alleged reason, only, that the act under which the subscription was made was unconstitutional and void.' An application was then made for a mandamus to compel the delivery of the bonds; and the only questions presented by the counsel for the respondent in the argument of the case, as shown by the report, were those of constitutionality, and especially was it urged that the act was repugnant to art. 11, sect. 14, which, quoting from the opinion, 'declares the General Assembly shall not authorize any county, city, or town to become a stockholder in, or loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.' All the objections presented were considered by the court, and in conclusion it was said, 'The county court having made the subscription, the company is entitled to the bonds.' It is quite true that the precise objection which has since been raised was not then urged or considered; but the alleged discrepancy between the act and the Constitution was just as apparent then as it is now, and Judge Dillon, in Foote v. Johnson County (6 Cent. Law Jour. 346), says: 'Suits in great numbers on these township bonds have been brought in the Circuit Court of the United States for this district, and they have been defended by the ablest lawyers in the State, upon every ground that they conceived open to them; but this difference between the phraseology of the Constitution and the act, so patent that it could not escape attention, was never presented or urged in any case, so far as either of us recollect, as invalidating the act.' In County of Cass v. Johnston, we attributed this to the fact that in other cases it had been substantially decided that the language of the act and that of the Constitution were in legal effect the same, and we at that time took occasion to look somewhat critically into the rulings on that subject. We have again examined that question, and are satisfied with the correctness of our former conclusion. It is thought, however, that we did not give sufficient effect to State v. Sutterfield, 54 Mo. 391. As to that, we said the question presented related to another clause of the Constitution, and that the decision was placed expressly on the ground of a difference between the two provisions. In this it is urged we were in error. The clause of the Constitution there under consideration was art. 4, sect. 30, which is: 'The General Assembly shall have no power to remove the county seat of any county, unless two-thirds of the qualified voters of the county, at a general election, shall vote in favor of such removal.' Under this provision of the Constitution a statute was passed providing for elections in such cases, to the effect, 'if it shall appear by such election that two-thirds of the legally registered voters of said county are in favor of the removal of the county seat of such county, then,' &c. In the opinion the court say: 'There is no doubt that in general, when an election is held to determine the choice of a candidate, or the determination of some question of public policy, the plurality required by law, whether it be a bare majority, or two-thirds or three-fourths, is determined by the result of the vote cast, without regard to the number declining to vote; and this is upon the ground that a failure to vote is assumed, or may be presumed, to be an acquiescence in whatever result may be produced by the action of those who feel a sufficient interest in the election to go to the polls and vote, and for the further reason that in most cases there is no mode by which the number of absentees can be ascertained. . . . Our Constitution in regard to the proposed removal of county seats, it seems to me, hardly admits of two constructions. It prohibits the legislature from removing them unless two-thirds of the qualified voters shall, at a general election, vote for the removal. The words do not imply an acquiescence or negative sanction, or a negative assent inferred from absence, but a positive vote in the affirmative, and the number of votes required is specifically named, and there is no difficulty in ascertaining what that number is, since the same Constitution provides for a registration, and points out who qualified voters are; and the statute in this case uses the words 'legally registered voters,' and requires two-thirds of them to vote for the change.' The court then refers to Bassett v. The Mayor of St. Joseph (37 Mo. 270), State v. Binder (38 id. 450), and State v. Winkelmeier (35 id. 103), and says: 'In none of these cases, however, was there any examination of, or construction given to, the precise language of the constitutional provision now under consideration. . . . The present case, however, presents very different considerations. The question of removing county seats was regarded by the...