State ex rel. Mayor, Aldermen & Citizens of Jefferson v. Richardson

• Decision Date: 31 January 1865
• Citation: 35 Mo. 385
• Parties: THE STATE OF MISSOURI TO THE USE OF THE MAYOR, ALDERMEN AND CITIZENS OF THE CITY OF JEFFERSON, Plaintiff in Error, v. ALLEN P. RICHARDSON et als., Defendants in Error.
• Court: Missouri Supreme Court

35 Mo. 385

THE STATE OF MISSOURI TO THE USE OF THE MAYOR, ALDERMEN AND CITIZENS OF THE CITY OF JEFFERSON, Plaintiff in Error,

v.ALLEN P. RICHARDSON et als., Defendants in Error.

Supreme Court of Missouri.

January Term, 1865.

Error to Cole Circuit Court.

Ewing & Muir, for plaintiff in error.

The failure or neglect on the part of Richardson to pay one hundred dollars into the treasury of the City of Jefferson, annually for ten years, commencing at the time the ferry was ready for business, was a breach of his bond. (Act to establish a steam ferry at Jefferson City, Sess. Acts 1855, p. 513-14.) The bond is conditioned “for the faithful performance of his duties under this act.” The payment of the money into the treasury is manifestly one of such duties. (Sec. 8, p. 514.)

The prayer of judgment for the penalty of the bond is proper. (Penal Bonds, 2 R. C. p. 1133. State v. Ruggles, 20 Mo. p. 99.)

J. L. Smith, for defendants in error.

I. The petition was defective in not stating the suit was brought “in the relation and to the use of plaintiff,” as is required by the statute. (R. C. 1855, p. 1134, sec. 15.)

II. The plaintiff's petition discloses no cause of action on said bond against Richardson and securities. The bond was executed by Richardson and securities for his “faithful performance of his duties” as ferryman under said act. What were his duties as ferryman under said act? Why, to furnish a good and sufficient boat propelled by steam power, with skillful engineer and assistants to attend to said boat, to be used in crossing said river as a public ferry. The act provides in what cases Richardson and his securities shall be liable on said bond. It is where any person may suffer damage by detention or otherwise at said ferry, or by injury to, or loss of property in crossing said ferry.

BAY, Judge, delivered the opinion of the court.

By an act of the General Assembly of the State of Missouri, approved February 27, 1855, the exclusive right and privilege of keeping a ferry across the Missouri river, opposite to and within the limits of the City of Jefferson, was granted to Allen P. Richardson, his heirs and assigns, for the period of ten years.

By the second section of the act, Richardson was required to execute to the State of Missouri a bond with sufficient security, in the sum of five thousand dollars, conditioned for the faithful performance of his duties under the act, which bond was to be approved by the Governor, and filed and recorded in the office of the Secretary of State.

The eighth section of the act required Richardson, in consideration of the privileges granted, to pay into the treasury of the City of Jefferson, annually, the sum of one hundred dollars.

This suit was brought against Richardson and his securities on said bond, and the breach assigned is the failure of Richardson to pay into the treasury of Jefferson City the sum required by said act. To the petition the defendants demurred, which demurrer was sustained by the court below, and the cause is brought here by writ of error.

The only question presented by the record is, whether the failure of Richardson to pay into the treasury of the City of Jefferson the sum required to be paid by said act, amounts to a breach of the condition of the bond; and the determination of this question depends upon the construction that is to...