State ex rel. Circuit Attorney v. Cnty. Court Saline Cnty.

• Decision Date: 31 January 1873
• Parties: STATE OF MISSOURI, ex rel. Circuit Attorney, Respondent, v. COUNTY COURT SALINE COUNTY, et al., Appellant.
• Court: Missouri Supreme Court

51 Mo. 350

STATE OF MISSOURI, ex rel. Circuit Attorney, Respondent,

v.COUNTY COURT SALINE COUNTY, et al., Appellant.

Supreme Court of Missouri.

January Term, 1873.

PER CURIAM.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Saline Circuit Court.

Sharp & Broadhead, for Appellants.

I. The Circuit Attorney has no authority to proceed in the name of the State in this case. (State vs. Parkville and Grand River R. R. Co., 32 Mo., 496; Atty. Gen. vs. Utica Ins. Co., 2 Johns. Ch., 371; see also, People vs. Miner, 2 Lansing, 396.)

In this last case, the doctrine is fully reviewed, the cases of Davis & Palmer vs. The Mayor, &c., 2 Duer., 663, and of Doolittle vs. The Supervisors, 18 N. Y., 162, referred to by the counsel for the Respondent, are referred to, and the Court holds that in such a case as the one before the Court the State is not a proper party.

II. The subscription made by the County Court of Saline County is valid and legal, and the issuing of the bonds and levying the tax were acts done in pursuance of law.

At the time this subscription of stock was made by the County Court of Saline County, the Railroad Co. was organized with authority to build a Railroad from Louisiana to the Missouri River at the most eligible point.

Even though under the original charter, the route of the road could not be through the County of Saline, it was clearly within the power of the Legislature, to amend the charter, and extend the route of the road through the County of Saline. It was not a dead charter. The law was still in force which created the corporation. It had not expired by limitation, which was ten years from its date, (§ 26, p. 406, Sess. Acts 1858-9.) The power of amendment, not being prohibited by the Constitution, was just as broad after as before its adoption.

This charter was amended by the act of March 24th, 1868, by which the company was authorized to extend the route of the road through the County of Saline. This court has decided such legislation to be valid and constitutional. (State ex. rel. Cir. Atty., vs. Cape Girardeau and State line R. R. Co., 48 Mo. 468.) The original charter was applicable to all Counties through which the route of the road should run. Section 3, of Art. XI. of the State Constitution declares that “all laws of the State now in force, not inconsistent with this constitution, shall continue in force until they shall expire by their own limitation, or be amended or repealed by the General Assembly.”

The provisions of this charter were not inconsistent with the constitution, because its prohibitions in this respect, referred to future legislation, (State ex. rel., The Missouri and Mississippi R. R. Co. vs. Macon County Court, 41 Mo., 453.) The clause of the Constitution just quoted, has the effect of taking the provisions of the charter, authorizing County subscriptions to the stock of the Rail Road Company out of the operation of the 14th section of the same article of the Constitution, declaring that, “The General Assembly shall not authorize any city, county or town to become a stockholder in, or loan its credit to any company, association or corporation except by a vote of two-thirds of the qualified voters.” This was not intended to have any controlling application to laws in existence when the Constitution was adopted. (Macon Co., case 41 Mo. 453.)

The General Assembly by the act of March 25th, 1868, passed no new law on the subject of County subscriptions; it merely extended the route of the road by an amendment to the charter--and that portion of the charter referring to County subscriptions attaches and applies to Saline County; it belongs to the charter and accompanies it wherever it may take the route of the road. The framers of the Constitution did not think proper to repeal existing laws in regard to the subscription of stock to Railroad corporations, although future legislation of the same kind was prohibited, and so they did not see proper to prohibit amendments to existing charters, and this power of amendment becomes as much a part of the Constitution, as if it had been inserted in so many direct words. (The People vs. Marshall, et al., 1 Gilm. 672.)

Now this authority to subscribe under the charter of 1859, did not apply to any particular County, it was ambulatory, and could only apply when and after the company had located its road, so that really it was a part of the charter, in fact as well as in form.

The amendment, to be invalid, must not only be against the spirit, but against the letter, or within the positive prohibitions of the Constitution. (48 Mo., 468; Commonwealth vs. the Councils of Pittsburg, 41 Penn. St., 280.)

III. But the original charter authorized the company to make its road through the County of Saline.

The language of the charter is, “thence to the Missouri River, at the most eligible point, &c.” The Missouri river was undoubtedly to be the Western terminus of the road, but no point was designated. The road was actually located through the County of Saline, at the time the subscription was made.

The western terminus was at the most eligible point on the Missouri river, for that is a fair interpretation of the language--it does not say on the north bank of the Missouri river, but the Missouri river at the most ellgible point. (Moses vs. Pittsburg & Ft. Wayne R. R., 21 Ills., 522.)

“To the Missouri river” does not necessarily mean on the north bank of the Missouri river, especially when we see by the charter, that it was contemplated in the charter, that the road might cross the Missouri river. (Sess. Acts of 1859. 406 § 25.) The court will take notice that there is no other navigable stream which the road could cross on its route to the Missouri, from Louisiana on the Mississippi.

Thomas J. C. Flagg, for Appellant.

I. The state has no interest, equitable or otherwise, in the subject matter of this controversy. (Sayre vs. Tompkins, 23 Mo., 443; State vs. Parksville and Grand River R. R. Co., et al., 33 Mo., 496; Hopkins vs. Lovell, 47 Mo., 102.)

II. There is nothing in the act of March 10th, 1859, creating this corporation, that limited the western terminus of the road to the north bank of the Missouri river.

Under the 35th section of that act, (Sess. Acts 1858-9, 407) the Railroad Company could have marked out, located and constructed their road to the south bank of said stream, or could have extended it to any point on the said river, and on either bank within the State of Missouri. The object of the act was not to fix the western terminus of the road at any definite point on the Missouri River. If it could have been located and constructed to a point on the south bank of the said river, and within the limits of Saline County, then the 29th section of the act of March 10th, 1859, would certainly have authorized the County Court of that County, to have made the subscription, because then, a “part of the route of said railroad,” would have been, in the language of the act, within Saline County. But if the construction of the act 1859, contended for by Respondents, shall prevail, then it is submitted, that as the Company has authority by the 25th section of that act, to build their said road “over any stream or highway” in the State, with the simple condition that if it is located and built over a navigable stream, it shall be so done as not to obstruct the navigation of the same, it might still have crossed the Missouri river, and re-crossed it for the purpose of reaching any point selected by the Company for its western terminus. The point to be selected for this purpose, in the language of this act, is simply to be at “the most eligible point,” on the Missouri river.

There is no prohibition against the crossing of that stream, and nothing in the act which justifies the construction given to it by the Respondents.

The record shows, that the road was, in point of fact, located from Louisiana to Kansas City previous to the making of the subscription, and it is so averred in the answer of appellants, and that Saline County was on the line of the road so located.

III. But if it shall be held that the subscription was not authorized by the act of 1859, it was clearly authorized by the amendment of the charter of said company, approved March 24th, 1868, (Sess. Acts 1868, p. 97, et seq.)

It is insisted that this amendment is clearly within the scope and meaning of the Constitution, and not repugnant to any of its provisions. The 3rd section of Art. XI, of the State constitution, provides that, “all statute laws of this State, now in force, not inconsistent with this constitution, shall continue in force, until they shall expire by their own limitation, or be amended, or repealed by the General Assembly.”

There is no question, but that the language is broad enough to embrace the act of 1859. No exceptions whatsoever are made. The act of incorporation of the Louisiana and Missouri river Railroad company is not inconsistent with the provisions of the state constitution. (State ex. rel. Mo. & Miss. R. R. Co. vs. Macon Co. Ct., 41 Mo., 453; Cass vs. Dillon, 2 Ohio St., 607.)

IV. The act approved March 24th, 1868, amendatory of the act of March 10th, 1859, is in all respects in accordance with the provisions of the 25th and 32nd sections of Art. IV, of the Constitution of this state, (Const. of Mo., 48, 49.)

The title under these provisions becomes one of the most important parts of the whole act. In this case it sets out, with great clearness and distinctness the general scope and objects of the whole bill. There was no room for deception. It purports upon its face, to be an amendment of the act of 1859, and states in what particulars that act is intended to be amended. There is no inhibition against the revival or reenactment of a law, but simply against the manner of doing it.

It is clear then, that whether this case is to stand upon the act of 1859 or the act of 1868, in either case the subscription of the stock in question by the County Court of Saline County...