F. G. Oxley Stave Company v. Butler County

• Decision Date: 08 May 1894
• Citation: F. G. Oxley Stave Company v. Butler County, 26 S.W. 367, 121 Mo. 614 (Mo. 1894)
• Parties: F. G. Oxley Stave Company et al. v. Butler County et al., Appellants
• Court: Missouri Supreme Court

26 S.W. 367

121 Mo. 614

F. G. Oxley Stave Company et al. v. Butler County et al., Appellants

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from St. Louis Circuit Court.

Reversed and remanded.

H. S Priest and M. L. Clardy for appellants.

(1) The two orders of the county and district courts of Butler county purporting to subscribe to the capital stock of the Cairo & Fulton Railroad Company are dated October 24, 1854, and December 6, 1855, respectively. These subscriptions were therefore, not made under the acts of December 7, and December 10, 1855, or either of them. (2) The only statute relating to the subject of subscriptions by counties to the capital stock of railroads and the transfer of swamp lands in payment of such subscriptions in force on the twenty-sixth day of October, 1854, and on the sixth day of December, 1855 was that of February 24, 1853 (Session Acts 1852-53, p. 121), and unless the requirements of that act were observed, the railroad company acquired no title to such lands. The twenty-ninth section vested in counties the authority to subscribe to the capital stock of railroad companies and provided that the counties "may for information cause an election to be held to ascertain the sense of the taxpayers, etc." It would seem hardly necessary to cite authorities to show that "may" here used is equivalent to "must" or "shall" and is therefore imperative. A power is given to public officers and concerns the public interest and the rights of third persons who have a claim de jure that the power shall be exercised in a certain manner for the sake of justice and the public good. State ex rel. v. Laughlin, 73 Mo. 449; Leavenworth v. County Court, 42 Mo. 171; Newburg Turnpike Co. v. Miller, 5 Johns. Ch., p. 113. An election at which a majority of the taxpayers of the county voted in favor of subscribing to the stock of the railroad company was a condition precedent to the transfer of the lands. (3) The county court of Butler county was not the general agent of the county; its powers were defined by law. The act of February 24, 1853, so far as the disposition of swamp lands was concerned, constituted its warrant of attorney. It had no power respecting the swamp lands not given to it by that act. "So long as the county court continues to tread in the narrow pathway allotted to its feet by legal enactment, its acts are valid, but whenever it steps beyond, its acts are void." Saline County v. Wilson, 61 Mo. 239; Sturgeon v. Hampton, 88 Mo. 213; Bauer v. Franklin Co., 51 Mo. 205; Steines v. Franklin County, 48 Mo. 167. (4) The order of the county court July 24, 1854, directing the clerk "to open columns on the poll books for the purpose of taking the vote of the people for and against the county taking stock, etc.," and the order of the county court, October 24, 1854, reciting that: "It appearing to the satisfaction of the court that qualified voters of said county are in favor of subscribing $ 50,000 to the Cairo & Fulton Railroad, etc.," do not show that the county court "caused an election to be held to ascertain the sense of the taxpayers," as to such subscription. No election was directed. The record does not show that an election was held or that any return of the vote cast was ever made to any officer or body, authorized to declare or decide the result, and these facts should appear in the record. St. Louis v. Alexander, 23 Mo. 483; Carpenter v. The Inhabitants, 51 Mo. 481; State ex rel. v. County Court, 45 Mo. 242. It does not show that a majority of the taxpayers of the county voted or even had an opportunity to vote on a proposition to subscribe to the stock of the railroad company. State ex rel. v. Garroutte, 67 Mo. 445. (5) So far as the subscription made by the district county court, December 6, 1855, "on motion and upon a satisfactory showing that the citizens of the county are in favor of the same," is concerned, it will not be seriously contended that the act of February 24, 1853, requiring an election to be held "to ascertain the sense of the taxpayers as to such subscription" was complied with; and yet this statute was the only one in existence that authorized the court to make any disposition of the swamp lands. (6) The order of the district county court, December 6, 1855, referring to the order of the county court of October 24, 1854, and providing that swamp land should be transferred to the railroad company in satisfaction of the subscription of $ 50,000, was made without the authority of law, and was, therefore, void. Section 32 of the act of 1853 only authorized a county which had already subscribed for railroad stock under section 29 of the same act -- that is, after the taxpayers had authorized such subscription -- to sell or mortgage its overflowed or swamp lands to pay its subscription. It devolves on the persons claiming the benefit of the subscription to show that the authority to make it had been conferred by an election. Carpenter v. Inhabitants, supra; Steines v. Franklin Co., 48 Mo. 167. (7) Persons dealing with county courts when acting ministerially are bound to take notice of the powers and authority of such courts. State v. Bank, 45 Mo. 538; Andrew County v. Craig, 32 Mo. 531; Sturgeon v. Hampton, supra. One who buys swamp land is presumed to know, as a matter of public record, the agent's authority. Dart v. Hercules, 57 Ill. 446. (8) The appellants can not be affected by the decree in the case of Chouteau v. Allen, offered in evidence. They were not parties nor were any persons under whom any of them claim, parties to the proceeding in which that decree was rendered, neither were the questions presented by appellants in this case passed upon by the court in that case. (9) The questions in issue in this case were passed on in the case of Butler Co. v. Railroad, and Moore, Wilson and Waterman, trustees in the deeds of trust made to secure the payment of the bonds by the company. The death of two of the trustees before the decree was rendered did not vitiate or in any way affect it. The trustees were joint tenants and upon the death of two of them the remaining one took the whole trust estate by survivorship. Stewart v. Pettus, 10 Mo. 468; Lewin on Trustees, p. 50. (10) The decree was rendered in July, 1869, more than twenty years before the bill, in which no reason or excuse is alleged for not instituting the suit before, was filed, and it can not be attacked now. Heffernan v. Howell, 90 Mo. 444. (11) The surviving trustee, Wilson, was the only necessary party to the suit. Broman and Bedford acquired no title by virtue of their appointment as trustee. The title could not be conveyed, except by deed. Bumgarner v. Cogswell, 49 Mo. 259. (12) Since this decree was rendered, thousands of acres of these lands have been bought of Butler county in small tracts by purchasers in good faith who have built houses and made homes on them, not suspecting that their title would ever be challenged.

G. A. Madill and Lionberger & Shepley and E. R. Lentz and J. W. Warrington for respondents.

(1) Notwithstanding the purpose for which the lands were granted to Missouri by the act of congress, the state was at liberty to make such disposition of them as it might deem proper. Dunklin County v. Dunk. Co. Ct., 23 Mo. 449; Pool v. Brown, 98 Mo. 675; Mills County v Railroad, 107 U.S. 557. (2) The acts of March 3, 1851 (Acts, 1850-51, p. 238) and February 23, 1853 (Acts, 1852-53, p. 108) did not deprive the state of its right to control the lands and make such subsequent disposition of them as it might deem proper. Cannon v. Bent, 1 Mo. 235; Hamilton v. St. Louis County, 15 Mo. 3; Dunklin Co. v. Dunk. Co. Ct., 23 Mo. 449; Barton Co. v. Walser, 47 Mo. 189; School District v. Weber, 75 Mo. 558; Re Taxes, 78 Mo. 596. (3) The subscription of Butler county to the stock of the Cairo & Fulton Railroad Company, and the conveyance of the swamp lands at an agreed valuation to pay such subscription, were authorized by the twenty-ninth, thirtieth and thirty-second sections of the act of February 24, 1853. (Acts, 1852-53, p. 447.) Dunklin Co. v. Dunk. Co. Ct., 23 Mo. 449; Chouteau v. Allen, 70 Mo. 291; Lingo v. Burford, 112 Mo. 149. See, also, Act Feb. 19, 1866, sec. 8 (Acts, 1865, p. 111); See, also, Act, Feb. 27, 1857, sec. 6 (Acts, 1856-57, p. 271); See, also, Act March 21, 1868, sec. 1 (Acts, 1868, p. 92), recognizing validity of subscription and conveyance. (4) The decree in the case of Butler county against the Cairo & Fulton Railroad Company, John Moore, John Wilson and A. G. Waterman is null because: First. The decree was procured by fraud. Second. The decree was rendered against two dead men and a dissolved corporation. Bollinger v. Chouteau, 20 Mo. 89; Sergent v. Rowsey, 89 Mo. 617; Graves v. Ewart, 99 Mo. 13; Moore v. Whitcomb, 48 Mo. 543; Chouteau v. Allen, 70 Mo. 336; Mumma v. Potoma Co., 8 Peters, 286; Bank v. Colby, 21 Wall. 609; Pendleton v. Russell, 144 U.S. 640; Morawetz on Corporations, sec. 1031. Third. Indispensable parties defendant were not before the court. R. S. of Mo. 1889, sec. 1994; Gen. Stats. of Mo. 1865, p. 329, sec. 19; Calvert on Parties, 207, 216; Viner Abr., B. 69 (Party); Hallett v. Hallett, 2 Paige, 14; Mallow v. Hinde, 12 Wheat. 194; Shields v. Barrow, 17 How. 130; Barney v. Baltimore, 6 Wall. 280; Cunningham v. Macon County, 109 U.S. 459; Hardin v. Boyd, 113 U.S. 764; Gregory v. Stetson, 133 U.S. 579; Wall v. Thomas, 41 F. 64; Swan Company v. Frank, U. S. S.Ct. unreported, March 21, 1893. (5) The subscriptions of Butler county to the stock of the Cairo & Fulton Railroad Company were authorized by the general railroad law of February 24, 1853. (Acts, 1852-53, p. 121.) First. Said law did not require the county court to ascertain the sense of the taxpayers of the county before...