North Missouri R.R. Co. v. Winkler

• Decision Date: 31 January 1863
• Citation: 33 Mo. 354
• Parties: NORTH MISSOURI RAILROAD COMPANY, Plaintiff in Error, v. WILLIAM WINKLER, Defendant in Error.
• Court: Missouri Supreme Court

33 Mo. 354

NORTH MISSOURI RAILROAD COMPANY, Plaintiff in Error,

v.WILLIAM WINKLER, Defendant in Error.

Supreme Court of Missouri.

January Term, 1863.

Error to Macon Circuit Court.

Carr, for plaintiff in error.

I. The act to prevent illegal banking and the circulation of depreciated paper currency does not apply to the plaintiff.

The charter of the North Missouri Railroad Company was granted by act of the Legislature, approved March 3, 1851, (Sess. Acts of 1851, p. 484, § 1,) by which the right was conferred upon the company to “be able in law and equity to make contracts” and to “ sue.” The act to prevent illegal banking and the circulation of depreciated paper currency was approved December 8, 1855, more than four years after the granting of the charter of the plaintiff. Hence the violation of this act cannot be pleaded as a bar by defendant to plaintiff's suit.

1. It would be making that an offense which was no offence at the time of granting the charter, and no offence at the time of making the contract sued on, viz., 23d of December, 1853.

2. It would be making said act retrospective in its operation, by allowing a defence to be set up to the cause of action which was no defence at the time of making the contract or granting the charter.

3. Because it would operate as a denial of justice in this, that it takes away all remedy upon the contract, without showing any breach of the contract on the part of the plaintiff, and without requiring any performance of the contract on the part of the defendant.

If it be held that said act of 8th December, 1855, can be pleaded in bar to plaintiff's suit, by the act of the Legislature, approved November 23, 1857, (Sess. Acts, 1857, p. 11,) all penalties, forfeitures, &c., incurred under said act were released. (Bank of the State of Mo. v. Bredow, 31 Mo. 523.)

II. The application of said act as a bar to plaintiff's suit impairs the obligation of the contract between plaintiff and defendant, is a denial of justice, and therefore unconstitutional and void.

1. When the State granted plaintiff's charter on the 3d of March, 1851, and the plaintiff accepted the same, it became a contract between the plaintiff and the State. (Dartmouth College v. Woodward, 4 Wheat. 518; Curran v. State of Arkansas, 15 How. 304; Redfield on Railways, p. 75; Bailey v. Gentry, 1 Mo. 164; Bumgardner v. Howard Co. Court, 4 Mo. 50, 120; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608.)

III. The defendant, by his subscription to the capital stock of the company, became a member thereof, and the officers and agents of the plaintiff are the officers and agents of the defendant as well as of the plaintiff; their acts are his acts; and allowing him to plead a violation of said act by them would be allowing him to take advantage of his own wrong. (Hannibal, Ralls Co. & Paris Plank Road Co. v. Menefee, 25 Mo. 547; Penobscot R. R. Co. v. White, 41 Me. 512; Same v. Dummer, 40 Me. 173.)

1. The capital stock is a trust fund for the payment of corporation debts. The creditors have a right to claim, as against the corporators, their equities to be worked out through the corporation when the trustees or other proper agents for that purpose neglect to call in the debts due by the stockholders of the corporation for stock, so as to enable the company to pay its debts; a creditor, by bill in chancery, can compel such agents to enforce contribution from the stockholders according to their subscription; and if there are no officers or agents to bring the suit, the court will appoint a receiver for that purpose. (Wood v. Dummer, 3 Mason, 308; Nathan v. Whitlock, 9 Paige, 152; Angell & Ames on Cor. § 602, 603; Redfield on Railw. 75-77, and authorities there cited in the notes.)

Prewitt, for defendant in error.

I. The act applies to this plaintiff. The object of the act was to prevent the passing of small bills and depreciated paper in this State. (R. C. 1855, p. 288, § 9; Christian University v. Jordan, 29 Mo. 68.)

II. The act is constitutional. The Legislature had a right to prohibit the passage of such bills in the State by any one, whether corporation or private person, and to fix such penalty as seemed proper for its violation. The second instruction is based on a false assumption of fact. The illegal banking law was in existence in 1845; the railroad act was passed in 1851. (See R. C. 1845, p. 167, § 4 and 10; also R. R. L. Mo. 32.)

III. The principal is responsible for the acts of his agents. (29 Mo. 68.) All the points in this case seem to be covered by the case of Christian University v. Jordan, above referred to. The suit in that case was for subscription of stock.

BAY, Judge, delivered the opinion of the court.

The North Missouri Railroad Company brought suit to recover the sum of one hundred dollars, amount subscribed by defendant to the capital stock of said company.

The cause was submitted to the court upon the following agreed statement of facts:

“North Missouri Railroad Company, plaintiff, v. William Winkler, defendant. It is hereby agreed by the counsel for the plaintiff and defendant to submit the above entitled cause to the court on the following facts: That plaintiff is a corporation by act of the Legislature of the State of Missouri, approved March 3, 1851, under the name and style of the North Missouri Railroad Company, and the several acts amendatory thereof; that on the 23d of December, 1853, defendant subscribed to the capital stock of said railroad company one share, amounting to $100, by which subscription he agreed to pay all calls upon said stock as the same should be made by order of the board of directors of said company, provided the road of said company passed through Macon county, in the dividing ridge which separates the waters of the Mississippi from the waters of the Missouri river, and on or near the route as it had been surveyed in range 14, in said county, previous to defendant's subscribing to the capital stock of said company as aforesaid; that previous to the 22d day of December, 1855, said company permanently located the route of the road of said company through Macon county, on the dividing ridge which separates the waters of the Mississippi from the waters of the Missouri river, and on or near the route as it had been surveyed in range 14, in said county, previous to the defendant's subscribing to the capital stock of said company, as aforesaid; that by order of the board of directors of said company a call of 35 per cent. of said subscription to the capital stock of said company was made on defendant, to be paid on the 22d of December, 1855, said call having been after the permanent location of said road as aforesaid, and due notice thereof given in conformity with the charter and by-laws of the company; and likewise another call of 65 per cent. on said share, to be paid on the 1st of October, 1856, of which due notice was given in conformity with the charter and by-laws of the company.

It is further admitted that the officers and agents of said company, as such officers and agents, before the commencement of this suit, and between that time and the filing of the defendant's answer herein, passed and received, within the limits of the State of Missouri, bank notes, promising or ordering the payment of money, of a less denomination than five dollars, in the business of the company, but without any express instructions of the company so to do.

It is further agreed that either party may submit such instructions or declarations of law on the foregoing facts as he may deem proper, except to the ruling of the court therein, and appeal or sue out a writ of error on the judgment which shall be rendered herein to the Supreme Court, and the decision of the Supreme Court thereon shall be final.--March 27, 1861.”

Upon the foregoing statement of facts the court found for the defendant, whereupon plaintiff in due time moved for a new trial; which motion being overruled, the cause is brought here by writ of error.

The plaintiff asked the court to declare the law as follows:

“1. The plaintiff is entitled to recover the amount subscribed, and the interest thereon at the rate of six per cent. per annum from the time of the respective calls, notwithstanding the officers and agents of the plaintiff, before the commencement of this suit, and between that time and the filing of the defendant's answer, passed and received in the business of the company, within the limits of this State, bank notes, promising or ordering the payment of money, of less denomination than five dollars.

2. The plaintiff's charter having been granted previous to the passage of the “Act to prevent illegal banking and depreciated paper currency,' approved December 8, 1855, the...