State ex rel. Barlow v. Dallas Cnty. Court

• Decision Date: 31 October 1880
• Parties: THE STATE ex rel. BARLOW, Plaintiff in Error, v. THE DALLAS COUNTY COURT.
• Court: Missouri Supreme Court

72 Mo. 329

THE STATE ex rel. BARLOW, Plaintiff in Error,

v.THE DALLAS COUNTY COURT.

Supreme Court of Missouri.

October Term, 1880.

Error to Dalla Circuit Court.--HON. R. W. FYANN, Judge.

AFFIRMED.

This was a proceeding by mandamus to compel the county court or Dallas county to provide and set apart funds to pay certain coupons held by the relator. The coupons were for interest on bonds issued in payment of a subscription which had previously been made by the county court, on behalf of the county, to the capital stock of the Laclede & Fort Scott Railroad Company, without first submitting the question to the qualified voters of said county. The circuit court refused the mandamus, and the relator sued out a writ of error.

Thos. C. Fletcher for plaintiff in error.

John P. Ellis for defendant in error.

SHERWOOD, C. J.

The act of March 23rd, 1861, (Sess. 1860-61, p. 60,) we regard as decisive of this case, so that it is unnecessary to pass upon any other point which has been discussed. Section 2 of that act provides: “It shall not be lawful for the county court of any county to subscribe to the capital stock of any railroad company, unless the same has been voted for by a majority of the resident voters who shall vote at such election under the provisions of this act.”

Strange as it may appear, that act, though cited by counsel, was never discussed until the year 1878, when I undertook to discuss the force and effect of its prohibitory provisions in State ex rel. Wilson v. Garroutte, 67 Mo. 445. In that case I endeavored to show that that act, by the very force of its terms, was applicable to existing charters, as well as to those which might subsequently be created; that in short, it applied to “any railroad company,” and that by that act it was made a misdemeanor, a penal offense, for the “county court of any county” to subscribe, etc., unless a vote had been first taken, as in that section prescribed. I endeavored also to show that even though no prohibitory words had been employed in the act, yet the fact that a penalty having been provided thereby, (1 Russ. on Crimes, p. 45; 1 Wag. Stat., pp. 487, 488, §§ 17, 21, 23,) that this of itself implied prohibition, and I cited a number of authorities supporting that view. Since then, my attention has been called to an opinion of this court delivered by Mr. Justice Napton, in Downing v. Ringer, 7 Mo. 585, where a promissory note given for a town lot before the plat of the town was acknowledged, filed, etc., as required by statute, was held “ absolutely void,” both at law and in equity, even in the hands of a transferee; and the language of Lord Holt was in that case, quoted with approval, where he says: “Every contract made for or about any matter or thing which is prohibited, and made unlawful by any statute, is a void contract, though the statute itself doth not mention that it shall be so, but only inflict a penalty on the defaulter; because a penalty implies a prohibition, though there are no prohibiting words in the statute.” It would appear not unreasonable that the same legal principles should govern where a railroad bond was issued contrary to law, as well as where a promissory note is executed in like disregard of the legislative will.

It is unnecessary to pursue this subject further. I refer for a more extended discussion of it to my opinion in the former case, State ex rel. Wilson v. Garroutte, supra. HENRY and NORTON, JJ., while concurring in the majority opinion in that case, gave no expression of their views as to the force and effect of the act of 1861. Since then they have concurred in the views which I heretofore had expressed in relation to that act. As the alleged subscription to the capital stock of the Laclede & Fort Scott Railroad Company was made without first submitting the matter to a vote of the people, we must approve the action of the circuit court in its denial of a peremptory, and its dismissal of the alternative writ, and affirm the judgment.

HENRY

and NORTON, JJ., concur. NAPTON and HOUGH, JJ., dissent.

HOUGH, J., DISSENTING.

The charter of the Laclede & Fort Scott Railroad Company, granted by act of the legislature on January 11th, 1860, (Acts 1859-60, p. 434,) authorized any county to subscribe to its stock and to issue bonds in payment thereof, without submitting the question to a vote of the people. The general law concerning railroad corporations, in force at that time, was as follows: “It shall be lawful for the county court of any county, and the city council of any city, to subscribe to the capital stock of any railroad company duly organized under this or any other act in this State; and the county court or city council subscribing, or proposing to subscribe, to such capital stock, may for information, cause an election to be held to ascertain the sense of the taxpayers of such county, or such city, as to such subscription, and as to whether the same shall be paid by issues of county or city bonds, as the case may be, or by taxation.” R. S. 1855, p. 427, § 30. On the 14th day of January, 1860, three days after the charter was granted to the Laclede & Fort Scott Railroad Company, an act was passed amending the foregoing section of the general law, by substituting for the words “may for information,” the words “shall for information” No one has ever pretended that this act in any way affected the charter of the Laclede & Fort Scott Railroad Company. The two acts, the charter and the amendment of the general law, were passed at the same session, and could well stand together. The amendment to the general law furnished the general rule, and the charter of the Laclede & Fort Scott Railroad furnished a special rule or an exception. Alexander v. The City of St. Louis, 23 Mo. 483; Dwarris on Statutes, 533. The power to subscribe contained in the charter, was not made subject to the provisions of the general railroad law, as was the case in Leavenworth& Des Moines R. R. Co. v. County Court of Platte Co., 42 Mo. 171.

The act of 1861, which, it is claimed, repealed the provision in the railroad charter authorizing counties to subscribe without a vote of the people, is as follows:

“An act supplemental to an act entitled ‘an act to authorize the formation of railroad associations and to regulate the same,” approved December 13th, 1855.

Be it enacted by the general assembly of the State of Missouri, as follows:

Section 1. That whenever the county court of any county in this State, or the city council of any city, shall be satisfied that the citizens of said county or city desire to subscribe to the capital stock of any railroad company, it shall be the duty of such county court, or city council, to order an election to be held in the said county or city in accordance with the provisions of the 30th section of the above recited act, giving at least thirty days notice of the time and place of holding such election, by written or printed handbills, posted up in such...