Robinson v. Cnty. Court of Morgan Cnty.

• Decision Date: 31 July 1862
• Citation: 32 Mo. 428
• Parties: ROBINSON et al., Plaintiffs in Error, v. COUNTY COURT OF MORGAN COUNTY et al., Defendants in Error.
• Court: Missouri Supreme Court

32 Mo. 428

ROBINSON et al., Plaintiffs in Error,

v.COUNTY COURT OF MORGAN COUNTY et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1862.

Error to Morgan Circuit Court.

Gardenhire, for plaintiffs in error.

I. The 14th section of the act to incorporate the Osage Valley and Southern Kansas Railroad Company (Laws of Mo. 1847, adj. Sess., p. 62) is unconstitutional. It delegates to the County Court, without any restriction or limitation whatever, the absolute authority to confiscate, by the subscription of stock and formal taxation, the entire property of every citizen of the county. The responsibility of the justices of the County Court to the electors is not a limitation affecting the constitutionality of the law. If the subscription had been equal to the entire property of the county, of what account would be such responsibility? The question is one of power, not the probabilities of the abuse of it.

II. If the power given is constitutional, the subscription is such an abuse of it as will authorize an injunction.

III. Section 30 of the act to authorize the formation of railroad associations (1 R. C. 427) is applicable to the Osage Valley and Southern Kansas Railroad Company. (1 R. C. p. 438, § 57.) The County Court could not subscribe stock without submitting the amount proposed to be subscribed to the people. Their decision must be had, and is final. Statutes enacted in favor of corporations, and in derogation of common right, are to be strictly construed. (3 Kelley, 31.) The word “ may,” in the 30th section above quoted, means must or shall. Public interest and rights are concerned, and the tax-payers have a right de jure that the question of subscription shall be submitted to them. (5 Cowen, 188; 9 Porter, 390; 4 Gil. 24.) See also act of Jan. 14, 1860, amending section 30, so as to read “shall for information,” instead of “may for information.” (Laws 1859-60, p. 88.) The amendment shows what was originally intended, and was to place the matter beyond doubt.

IV. If section 30 of the general railroad law is not peremptory, the County Court, having submitted the question of subscription to the people, could not subscribe a larger amount than rejected by their vote.

J. P. Ross, for defendant in error.

I. The refusal of the court to grant an injunction was not a final determination of the cause within the meaning of the statute, consequently a writ of error will not lie.

II. An injunction is not the proper remedy. The threatened injury is not in its nature irreparable. Damages would compensate plaintiffs. (2 Story's Eq. Juris. 260, § 928 and following.)

III. The County Court of Morgan county had, both by the general railroad law and the act incorporating the Osage Valley and Southern Kansas Railroad, the power to subscribe to the capital stock of said road, and to raise the amount subscribed by taxation, or by issuing the bonds of the county. (R. C. 1855, 427, § 30; also Sess. Acts, 1857, p. 63, § 14.) Neither of these acts required the County Court to submit the question to the people. The first says the court may do it; the second is silent upon the subject. It is submitted that, under the law, it was a matter of discretion with the County Court, whether or not they would submit the matter to a vote of the people for information. The act of the 14th January, 1860, (see Sess. Acts, 88,) is a legislative construction of the word may, in the above recited act, and shows that the word, as there used, means may, and...