State ex rel. Circuit Attorney of the Tenth Judicial Circuit v. Cape Girardeau & State Line R.R.

Citation48 Mo. 468
CourtUnited States State Supreme Court of Missouri
Decision Date31 October 1871
PartiesTHE STATE OF MISSOURI ex rel. CIRCUIT ATTORNEY OF THE TENTH JUDICIAL CIRCUIT, Appellant, v. THE CAPE GIRARDEAU & STATE LINE RAILROAD, Respondent.

Appeal from Cape Girardeau Circuit Court.

L. Houck, for appellant.

I. The Legislature has no power to amend a special act passed under the old constitution. ( a) The object of the constitutional provisions (art. IV, § 27; art. VIII, § 4) was to prevent and inhibit special legislation. If this is so, then to say that the Legislature may not pass an act to incorporate, but may pass an act to amend an act of incorporation in existence, would make this provision of the constitution practically amount to nothing; for if the Legislature may amend, it may to the extent of passing an entirely new law, except as to one section. Or it may at one session amend one half, and at a subsequent session the other half; and thus the plain and positive prohibition of the fundamental law would be evaded. If the power to amend is not withheld, there is no limit to the power. ( Ex partePritz, 9 Iowa, 33; Davis et al. v. Woolnaugh, id. 106; Hetherington v. Bissell et al., 10 Iowa, 147; Baker et al. v. Steamer Milwaukee, 14 Iowa, 217; Atchison v. M. & C. R.R. Co., 15 Ohio St. 35; McGregor v. Baylies, 19 Iowa, 46; Atchison v. Bartholow, 4 Kan. 148.)

II. The amendment of the eighth section of the original act incorporating the Pilot Knob, Cape Girardeau & Belmont Railroad Company is a special law. (Blackst. Com. 86; State ex rel. Home v. Wilcox, 45 Mo. 465; Dwarris on Stat. 465.)

III. A general law can be made applicable providing for the amendment of charters (Gen. Stat. 1865, p. 331), and the courts can determine whether such a general law can be made applicable.

IV. Even supposing this power of amendment to be vested in the Legislature, it does not extend further than to acts merely curative in their nature. The act of December, 1865, is not curative but rather creative. (Ang. & Ames on Corp., 9th ed., § 537 et seq.) The original purpose of the corporation was absolutely and entirely abandoned, and with this abandonment of its original aim and object it died. Under the guise of an amendment, however, it is sought to inject into the defunct concern a new existence. In effect, a new corporation is created by a special act. An amendment effecting this is certainly not curative but creative, and therefore a special law and within the constitutional inhibition.

Thos. C. Fletcher, for respondent.

I. The act of December 31, 1859, and the act amendatory thereof, passed February 18, 1869, were properly pleaded and constitute a complete defense to the proceeding. (Sess. Acts 1859-60, pp. 77, 429.)

II. The Legislature had power to pass an act amendatory of an act existing at the adoption of the constitution. (Const. Mo., art. XI, § 3.)

III. The amendment does not embrace any of the subjects in reference to which the constitution prohibits special legislation, either in terms or by implication. (Const. Mo., art. IV, § 28.)

IV. The Legislature had the power, it not being denied in the constitution, either expressly or by necessary implication. (Sears v. Cottrell, 5 Mich. 258.)

V. The constitution clearly confers the power upon the general assembly to give its assent to such requests by corporations as the one contained in the act of 1869. (Const. Mo., art. VIII, § 2.)

VI. The appellant having elected to abide by his demurrer in the court below, must abide by it here, and the questions raised by the demurrer are the only ones to be considered now. The only cause of demurrer assigned is that the act of 1869 is unconstitutional because it is a special act.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding in the nature of a quo warranto by the circuit attorney of the Tenth Judicial Circuit, to require the Cape Girardeau & State Line Railroad Company to show by what warrant or authority it claimed to have and exercise the franchises of a railroad company. The answer stated an incorporation by an act of the Legislature, approved December 31, 1859, by which the company was chartered, with the privilege of building a railroad from Cape Girardeau to Belmont, and an amendment to said charter, passed February 18, 1869, by which the company was, at its request, permitted to build its road to the State line, through or near Bloomfield.

There was a demurrer to the answer. It was heard and overruled. Plaintiff elected to abide by the demurrer, and judgment was given for the defendant. The only question presented by the record is whether the act of February 18, 1869, amendatory of the act of incorporation of the company, is unconstitutional and void, as being of a class of special legislation which the constitution prohibits the Legislature from enacting.

In some of the States where a constitutional provision exists prohibiting the Legislature from passing special enactments, it is held that a law cannot...

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