State ex rel. Lexington & St. Louis R.R. Co. v. Saline Cnty. Court

• Decision Date: 31 January 1870
• Citation: State ex rel. Lexington & St. Louis R.R. Co. v. Saline Cnty. Court, 45 Mo. 242 (Mo. 1870)
• Court: Missouri Supreme Court
• Parties: STATE ex rel. LEXINGTON & ST. LOUIS RAILROAD COMPANY, Petitioner, v. SALINE COUNTY COURT, Respondent.

45 Mo. 242

STATE ex rel. LEXINGTON & ST. LOUIS RAILROAD COMPANY, Petitioner,

v.SALINE COUNTY COURT, Respondent.

Supreme Court of Missouri.

January Term, 1870.

Petition for mandamus.

A. & T. A. Green, for relator.

I.The finding of the County Court is conclusive in this case, and can not be collaterally inquired into.The presumption is that such finding was correct, and that the bonds were legally issued, and the court is estopped by their own recitals of record from controverting or impeaching the legality of the election.(21 How. 539;33 Mo. 440.)

II.The railroad company was an innocent purchaser.(Sess. Acts 1860, pp. 455-6.)

W. Adams and J. R. Vance, for respondent.

Under the law, the County Court had no power to subscribe any amount whatever unless the precise amount to be subscribed had first received a majority of the votes of the tax-payers of the district at an election held for that purpose.The power to subscribe is a statutory power, and can only arise when the terms of the statute have been strictly complied with.(Sess. Acts 1860, pp. 455-6;2 Redf. on Railw.403;Mercer County v. Pittsburg & Erie R.R., 27 Penn. St. 389, in point;Starin v. Genoa, 23 N. Y. 449;Fowler v. St. Joseph, 37 Mo. 237-8;41 Mo. 230;State, etc., v. Boon, 44 Mo. 254.)

BLISS, Judge, delivered the opinion of the court.

On the 22d of January, 1861, the General Assembly passed an act authorizing a certain subscription to the stock of relator, and the following is a copy of section 1: “Section 1.It shall be the duty of the County Court of Saline county, for and on behalf of the tax-payers owning taxable property in all that district or territory in said county comprising Salt Pond township, and that portion of Grand Pass township lying south of sectional line beginning at the northwest corner of Col. McDowell's farm in said county, and running west to the Lafayette county line, to subscribe to the capital stock of the Lexington & St. Louis Railroad Company an amount not exceeding seventy thousand dollars, upon the condition that said road be located north of the town of Brownsville in said county, provided such subscription shall not be made unless a majority of said tax-payers, at an election to be held in said district, shall vote in favor of such subscription, specifying the amount.”

The act further provides that the issuing of bonds on behalf of said district, the assessment of taxes to meet them, the appointment of an agent to make the subscription, etc., all shall be done by the County Court.

On the 4th of February following, the County Court ordered an election in said district, to be held on the 18th of February inst., to decide “as to whether they(the tax-payers of said district) shall subscribe to the capital stock of the Lexington & St. Louis Railroad Company an amount not exceeding seventy thousand dollars,” and that the sheriff give notice, etc.On the 23d of February the county clerk canvassed the vote which was taken on the day for electing delegates to a State convention, embodying it in the canvass of the whole county, in which he recites that the election was held “on the 18th day of February, A.D. 1861, for delegates to the State convention, and to take the sense of the tax-payers of Salt Pond and Grand Pass townships as to the propriety of subscribing $70,000 to the Lexington & St. Louis Railroad,” etc., which canvass shows that 292 votes were cast “for railroad,” and 111 votes “against railroad.”On the 2d of April next the following proceedings were had in said County Court, to-wit: “It appearing to the court that the election provided for by law approved January 22, 1861, to be held in Salt Pond township, and that portion of Grand Pass township lying south of sectional line beginning at the northwest corner of Col. McDowell's farm in said county, and running west to the Lafayette county line in this county, has been held according to law, and resulting in a vote of a majority of the tax-payers of said township or district designated in favor of levying a tax of $70,000, to subscribe the same to the capital stock of the Lexington & St. Louis Railroad: now, then, it is therefore ordered by the court that William B. Kinkaid be and he is hereby appointed and empowered, as the agent of this court, to do whatever said agent may do under and by virtue of such act aforesaid.”

Bonds to the amount of $70,000 were on the 16th of April duly issued and delivered to Mr. Kinkaid, the agent, and the amount and description of each was spread upon the record; but on the 2d of February, 1864, an order was made upon said agent to report the disposition he had made of the bonds, and on the 15th he reported that he had delivered a part to the company, amounting to $14,000, and that the remainder were still in his possession.Those remaining undelivered he passed over to the court, and was discharged as agent.

Immediately after the appointment of said Kinkaid as agent, the books of the railroad company showed that he made a subscription to its capital stock in the sum of $70,000.It is also shown that the relator suspended work upon the road during the war, but that within the last year it has nearly completed the bed of the same; that the road is located north of said town of Brownsville, but that, on recommencing work, a new route between Lexington and Brownsville was chosen, running into the original line at the last-named town, which route was shorter than the old one by several miles, and distant from it when it entered Saline county from four to six miles.It is further shown that before the passage of the act of June 22, 1861, the railroad company, not then incorporated, had surveyed three routes, the one finally adopted being called the northern route; that before its adoption, citizens of Saline county interested in said route had urged it upon the company, who offered to take it upon condition of a subscription of $70,000 to the capital stock of the company, and that, in pursuance of this offer, the passage of the said act was procured and proceedings under it had.The depositions of several witnesses show that the route as changed is of far less benefit to the district on whose behalf the bonds were issued than the old one, and that on the day of the election to authorize the subscription no specific sum was named, but that the people voted “for” or “against”“railroad,” according to the order of the County Court submitting the question.

The records of the County Court also show that the president of the railroad company, on the 8th day of May, 1869, demanded of the court the $56,000 in bonds retained by them, and that they were refused, and the petition asks: 1.That the said County Court be commanded to deliver to the relator the said bonds so retained by it; and, 2.That it be commanded to levy a tax upon the inhabitants of the proper district to pay the principal and interest due upon the bonds, amounting to $14,000, actually delivered by the agent of the court.

The defendant insists that the relator is not entitled to the interposition of the courts in its behalf, for various reasons.First, because the subscription to the stock and execution of the bonds was unauthorized by the tax-payers of the district.The law under which the proceedings were had, expressly provides, as before recited, that the subscription shall not be made unless a majority of the tax-payers shall vote for it, “specifying the amount.”A subscription “not exceeding $70,000” is authorized, but the specific amount must be decided by the tax-payers themselves, and without such specification, the County Court is powerless in the premises.We have, then, first to inquire whether such decision has...