Rubey v. Shain
| Decision Date | 31 October 1873 |
| Citation | 54 Mo. 207 |
| Parties | WEB M. RUBEY, Respondent, v. ED.C. SHAIN, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court.
W. H. Sears, for Appellants.
I. The stock having been voted for by the requisite number of resident tax-payers of said Hudson Township, they knowing the objects and purposes of the road, and the bonds having been issued to said road, for the payment of said stock by the County Court, the authorized agents of said township for that purpose; and it not appearing but that these bonds have got into the hands of innocent purchasers, it would be imposing a hardship on those purchasers, that the law does not sanction, if this action be sustained. (Knox County vs. Aspinwall, 21 How., 539; Flagg vs. City of Palmyra, 33 Mo., 440.)
II. The tax lists showed that the property of the respondent was subject to taxation, and therefore the collector was justified in collecting the tax due. (37 Mo., 280; 47 Mo., 466.)
W. C. M. Rubey, for Respondent.
I. When the County Court attempted to make the so-called subscription, nothing had been done towards forming a corporation, excepting the drafting of Articles, and the subscriptions thereto, by eight persons of $200.00 each, making in all sixteen hundred dollars, which was wholly inadequate, (W. S., 296-9, §§ 1, 3) and was void.
This was a suit against the collector of Macon County and his sureties to recover back a tax of fifty dollars paid by plaintiff on an assessment against his property levied by the County Court, to pay a subscription or interest on a subscription to the St. Louis, Macon & Omaha Air Line R. R. Co. The facts in the case, about which there was no controversy, are these: On the 16th day of December 1868, articles of association, proposing to build a road about ninety miles in length, were signed by eight persons, each subscribing two hundred dollars, forming what was called the St. Louis, Macon & Omaha A. L. R. R. Co.
On the 18th day of the same month, a petition was presented to the County Court, under the act of the 23rd of March 1868, signed by the necessary number of tax-payers of Hudson township, requesting the court to order a vote in said township, as to whether the township would take $40 000 of stock in said company. In June 1869, the vote was taken and the requisite majority was obtained. On the 9th of November 1869, the County Court ordered the subscription, and issued bonds therefor, and in 1871 made a levy of 25 cents on each hundred dollars' worth of property in said township, to pay the interest accrued, and said levy was duly entered on the tax books for the year 1871, and defendant Shain collected the same against the protest of plaintiff.
The articles of association were not executed until the 10th of Nov. 1869, and not filed with the Secretary of State till the 12th of the same month and year. On this state of facts the question is, whether such subscription is valid.
The Constitution (Art. II, Sec. 14) says: “The General Assembly shall not authorize any county, city or town, to become a stock holder 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.”
The statute (W. S., 305, § 17) says, “it shall be lawful for the County Court of any county, the City Council of any city or the trustees of any incorporated town, to take stock for such county, city or town, or loan its credit to any railroad company, duly organized under this or any other law of the State; provided, &c.”
The act of 1868, under which the subscription was made, provided that “Whenever twenty-five persons tax-payers and residents in any municipal township for election purposes, in any county of this State, shall petition the County Court of such county setting forth their desire as a township to subscribe to the capital stock of any railroad company in this State, building or proposing to build a railroad into, through or near such township,” &c., “a vote shall be ordered,” &c.”
The company was incorporated under the general law.
That law (W. S., 296, § 1) provided, that five persons or more might make and sign articles of association, in which shall be stated the name of the company, its proposed duration, the points of beginning and ending of the road, its length and the counties through which it was to run, the amount of capital stock, which should not be less than $10000 for every mile of road constructed or proposed to be constructed. This section then declares that on compliance with the provisions of the third section of the same chapter these articles might be filed in the office of Secretary of State, who was to indorse thereon, the day they were filed, and record them, and thereupon the persons named should be a corporation, &c.
The third section of the act above referred to prohibited the filing and recording of these articles, until one thousand dollars of stock was subscribed for every mile of road proposed and five per cent. paid thereon in good faith and in cash, and an affidavit was annexed to said articles by three directors to this effect, and that it was intended in good faith to construct and operate the road.
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