State ex rel. Elijah Robinson Prosecuting Attorney for Pike Cnty., Missouri v. Sanderson

• Decision Date: 31 October 1873
• Citation: 54 Mo. 203
• Parties: THE STATE OF MISSOURI ex rel., ELIJAH ROBINSON PROSECUTING ATTORNEY FOR PIKE COUNTY, MISSOURI, Appellant, v. JAMES A. SANDERSON, COLLECTOR FOR SAID COUNTY, Respondent.
• Court: Missouri Supreme Court

54 Mo. 203

THE STATE OF MISSOURI ex rel., ELIJAH ROBINSON PROSECUTING ATTORNEY FOR PIKE COUNTY, MISSOURI, Appellant,

v.JAMES A. SANDERSON, COLLECTOR FOR SAID COUNTY, Respondent.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Pike Circuit Court.

Elijah Robinson, for Appellant.

I. The bonds were illegally issued, and were void. The law required that the election should be conducted in accordance with the law controlling general and special elections, then in force. (Sess. Acts 1868, p. 92, § 1.) The election was not so conducted. 1st. The order for an election undertook to prescribe qualifications for voters, contrary to, and in direct violation of, the constitution of the State. (Art. 2, Const. §§ 3, 15, 16, 17, 18.) 2nd. The order for an election did not direct that any notice should be given, and no notice of the election was in fact given. (McPike vs. Pen, 51 Mo., 63.) 3rd. No special registration was held prior to the election to ascertain who should be entitled to vote. (44 Mo., 346; Sess. Acts 1868, p. 136, § 18.) 4th. The election was fraudulently conducted, and illegal votes were cast and received. 5th. Two-thirds of the qualified voters voting at said election did not vote in favor of making the subscription. (Sess. Acts 1868, p. 92, § 1; Const. Art. 11, § 14.) The power to subscribe was a statutory power; and could be acquired only by a strict compliance with the terms of the statute. (Stines vs. Franklin county, 48 Mo., 167; City of St. Louis vs. Alexander, 23 Mo., 483; State vs. Saline County Court, 45 Mo., 242; Leavenworth & D. M. R. R. Co. vs. Platte County Court, 42 Mo., 171; State vs. Clark County Court, 41 Mo., 44; Fowler vs. St. Joseph, 37 Mo., 228; Walcott vs. Lawrence Co., 26 Mo., 272; Starin vs. Town of Genoa, 23 N. Y., 439; Gould vs. Town of Sterling, Id., 456; Dillon Mun. Cor. § 108 and cases cited.)

They would be void into whosesoever hands they might come because the power to issue them had not been conferred upon the County Court. (Stines vs. Franklin county, 48 Mo., 167; Carpenter vs. The Town of Lathrop, 51 Mo., 483; Dill. Mun. Cor., §§ 424, 425, 426, and cases cited.) The County Court only possessed the power to initiate the proceedings by which the power to make subscriptions and issue bonds might be called forth,--that is to order an election. The power rests in the qualified voters, and in this case they did not, and under the order of the court could not have conferred the power, because they were not called upon to do so. The court, not having the power, should have asked the qualified voters to confer it, but, instead of doing so, they directed the order for an election to another class of persons--to a class possessing certain qualifications fixed by the court and not by the law.

II. The suit was properly brought. It is competent for the State, through its authorized officers, to institute this proceeding to restrain a public officer from collecting a tax which has been levied in violation of the constitution and laws of the State. (State vs. Saline County Court, 51 Mo., 350, and numerous cases there cited; High Injunc. § 747.)

III. The collector was the only necessary party defendant to this suit. He alone was undertaking to collect this tax, and his acts were alone immediately feared, and sought to be enjoined. No person else was doing or threatening to do any thing; and it would have been useless to have made parties defendants to the suit, whose acts were not complained of, and who were doing nothing which plaintiff sought to enjoin.

Fagg & Dyer, for Respondent.

I. The State of Missouri has no interest whatever either directly or indirectly in the result of the litigation, and this action cannot be maintained in the name of the State. (State vs. Parkville & Grand R. R. R., 32 Mo., 496; Sayre vs. Tompkins, 23 Mo., 443; State vs. Saline county, 51 Mo., 350, and cases cited.) This is not a proceeding by the State against either a public or private corporation, but it is against an individual simply.

II. The railroad company, as well as the County Court of Pike county, was a necessary party to the suit. (State vs. Callaway county, 51 Mo., 395.)

NAPTON, Judge, delivered the opinion of the court.

This is an application to the Circuit Court of Pike county to issue an injunction against Sanderson, the collector, prohibiting him from collecting certain taxes levied by the County Court to pay the interest on certain bonds issued by that Court on a subscription of $100,000 to the Clarksville & Weston R. R. Co. The suit is by the State through the circuit attorney.

The grounds, upon which the injunction is asked, are that the election, held under the order of court, upon the question of subscribing to the R. R. Co., was illegal, inasmuch as it allowed disqualified persons to vote, and disregarded the provisions of the second article of our constitution, and that, notwithstanding this illegal election, the court did subscribe $100,000 to the stock of the company, and issued bonds to pay this subscription, and levied a tax to pay them on the property of...