Osage Valley & Southern Kansas R.R. Co. v. Cnty. Court of Morgan Cnty.
| Citation | 53 Mo. 156 |
| Parties | THE OSAGE VALLEY and SOUTHERN KANSAS R. R. Co. Defendant in Error v. THE COUNTY COURT of MORGAN COUNTY, et al., Plaintiffs in Error. |
| Decision Date | 31 July 1873 |
| Court | United States State Supreme Court of Missouri |
Error to Morgan Circuit Court.
Anthony & Spurlock for Plaintiffs in Error.
I. The 14th Section of the act incorporating this railroad is unconstitutional and against public policy, as it gives, to the County Court without restriction or limitation, the power to confiscate, by taxation, the entire property of any citizen of the county. (Wells vs. City of Weston, 22 Mo. 384; W. S. 36, § 16.)
II. The writ should not only show facts sufficient to entitle the relator to the relief he claims, but it should also show his right to all the claims. (Moses Mand. 206, 207.) And the command of the writ must also be according to the duty. (Moses Mand. 209, 1 Hill, 50, 55; 35 Barb. 110.)
III. The peremptory writ must correspond with the alternative. (Moses Mand., 208, 209, 222.)
J. P. Ross, for defendant in Error.
This was an application to the Circuit Court of Morgan couny, by the Osage Valley and Southern Kansas Railroad Company, for a mandamus directing the County Court of Morgan county to comply with the terms of a certain subscription to said company of $30,000, made at the November term of said court, 1870.
The order, as stated in the petition, appointed one Mills as Fiscal Agent of the county, and directed him to have bonds to the amount of $30,000 lithographed, and to sell them to the best advantage, and hand over the proceeds to the railroad company as the work progressed.
The petition asserted that the bonds were prepared and delivered to the court, and that the court refused to hand them over to the company, and the prayer of the petition is, that the court will issue a mandamus compelling the court to deliver said bonds to said company, or show cause to the contrary.
In the return to the alternative writ of mandamus the County Court mainly rely on the assertion, that said subscription “was falsely and fraudulently made by one justice of the said County Court, no other justice being present, as appears by the records of the said County Court,” and they further aver that said court was not in session when said pretended order was made.
The return also sets up, that the company are not the fiscal agents of Morgan county, and that the company has no right to the bonds, according to the terms of the order authorizing the subscription.
They also insist, that the fourteenth section of the act entitled “an act to incorporate the Osage Valley and Southern Kansas Railroad Company, approved November 21, 1857,” upon which said subscription is based, is unconstitutional.
In the plea to the return there is a denial, that the subscription is fraudulent or against the Constitution of the State or of the United States.
By a replication to the plea an issue is made as to the facts asserted in the return.
After a trial of the issues the court ordered a peremptory mandamus, directing the court to deliver into the hands of the Fiscal Agent of Morgan county, or into the hands of such other person as may be appointed Fiscal Agent, the bonds isisued.
There was a motion in arrest, and a motion to set aside the judgment of peremptory mandamus. The bill of exceptions shows the evidence in the case, which consisted mainly of the records of the County Court,...
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