State ex rel. Connelly v. Parkville & Grand River R.R. Co.

• Decision Date: 31 July 1862
• Citation: 32 Mo. 496
• Parties: STATE, TO USE OF CONNELLY et al., Appellants, v. THE PARKVILLE AND GRAND RIVER RAILROAD COMPANY and the COUNTY COURT OF PLATTE COUNTY, Respondents.
• Court: Missouri Supreme Court

32 Mo. 496

STATE, TO USE OF CONNELLY et al., Appellants,

v.THE PARKVILLE AND GRAND RIVER RAILROAD COMPANY and the COUNTY COURT OF PLATTE COUNTY, Respondents.

Supreme Court of Missouri.

July Term, 1862.

Appeal from Platte Circuit Court.

Wilson & Merryman, for appellants.

The point made by the demurrer, that the suit is not brought in the name of the proper parties, is untenable. Any person who is to be affected by the unauthorized act of a public officer, may claim the protection of the government and its name, and sue by such government on his relation. (See Story's Equity Plead. p. 56, § 49.)

The petition charges that they have made the subscription, and are threatening to issue the bonds and levy a tax for the payment of them. This they cannot do by the charter of the railroad, until the question is put to a vote of the people.

Under the act of 1855, and '59 and '60, and the charter of the Parkville and Grand River Railroad, the subscription cannot be made until the people pass on it. The subscription was only a conditional one before the act of 1859-60.

Clough, for respondents.

I. There is a defect of parties plaintiff, the State of Missouri not being a necessary party to this action, and improperly a party plaintiff.

II. There is a defect of parties defendant. The Parkville and Grand River Railroad Company is not properly a party defendant.

III. The petition does not state facts sufficient to constitute a cause of action, or to authorize the granting of the relief prayed for, and the demurrer was therefore properly sustained.

DRYDEN, Judge, delivered the opinion of the court.

This is a bill of injunction, brought in the name of the State of Missouri, at the relation of Connelly and others, to restrain the County Court of Platte county, as well from issuing bonds in payment of one hundred thousand dollars of stock, subscribed by said county to said railroad company on the 3d of January, 1860, as from levying and collecting a tax to pay said subscription or bonds. The ground of complaint, alleged in the bill, is that “the County Court, at the instance of the railroad company, by an order of said court, made a subscription of one hundred thousand dollars of stock to said railroad company, without causing an election to be held by the people of said county to ascertain as to whether such subscription should be made, or as to whether the same should be paid by issues of county bonds or taxation;” and that the court is threatening to issue bonds for the amount of the stock, and to...