State ex rel. North Missouri Cent. R.R. Co. v. Linn Cnty. Court

• Decision Date: 31 October 1869
• Citation: 44 Mo. 504
• Parties: THE STATE OF MISSOURI ex rel. NORTH MISSOURI CENTRAL RAILROAD COMPANY, Relator, v. THE LINN COUNTY COURT, Respondent.
• Court: Missouri Supreme Court

44 Mo. 504

THE STATE OF MISSOURI ex rel. NORTH MISSOURI CENTRAL RAILROAD COMPANY, Relator,

v.THE LINN COUNTY COURT, Respondent.

Supreme Court of Missouri.

October Term, 1869.

Petition for mandamus.

Burgess, and Mullens, for relator.

I. Bonds issued under the act of March 23, 1868, (Sess. Acts 1868, p. 92,) are not the bonds of the county, but are the bonds of the township; and, although the act requires them to be issued in the name of the county, the township alone is responsible for their payment. (Briscoe v. Bank of the Com. of Ky., 11 Pet. 257; Hodges v. Runyan, 30 Mo. 491; Tutt v. Hobbs, 17 Mo. 488; Angell & Ames on Corp. §§ 276, 278.) There is nothing in the constitution of the State of Missouri which prohibits the General Assembly from authorizing townships to subscribe stock to railroad companies in the manner prescribed by the act of March 23, 1868; and, in the absence of such prohibition, the Legislature has that power. (Cincinnati, Wilmington & Zanesville R.R. Co. v. The Commissioners of Clinton County, 1 Ohio St. 77; The Steubenville & Indiana R.R. Co. v. The Trustees of North Township, Harrison Co., 1 Ohio St. 105.) The county of Linn is a municipal corporation. (2 Kent's Com. 275; Ang. & Ames on Corp. §§ 9, 29; 2 Bouv. Law Dict. 201; Coles v. Madison County, 1 Breese, 154.) And the act of the General Assembly makes the townships corporations with such powers only as are necessary to enable them to carry into effect the objects contemplated by the act; and the duty enjoined upon the county courts is that of special agents in behalf of the townships. (Ang. & Ames on Corp. §§ 23, 24, 276, 278, and authorities hereinbefore referred to.)

II. The act of the General Assembly in question is not invalid for the reason that taxation, to pay the subscriptions authorized by the act, or the bonds issued in payment thereof, is limited to the real estate. The Legislature was the sole judge of the propriety of this action. (Glasgow v. Rowse, 43 Mo. 479; The People v. The Mayor of Brooklyn, 4 Comst. 419, 430, 431, 438, and cases there cited; Sedgwick on Stat. and Const. Law, 502-3, 554, 557; Cooley's Const. Lim. 506, and cases cited.)

III. Unless there is an express constitutional prohibition, municipal corporations, when acting by legislative authority, are authorized to subscribe to the stock of railroad companies, issue bonds, and levy taxes to pay the same. (Pierce on Am. R.R. Law, 114-15; Sedg. on Stat. and Const. Law, 463-4.)

Easley, for respondent.

I. The act of March 23, 1868 (Sess. Acts 1868, p. 92), is unconstitutional, because the bonds which it is sought to compel respondent to issue, under the provisions of said act, would be an indebtedness to the county of Linn, and not to the township of Benton, for these reasons: 1. The township has no authority to make the bonds. 2. The township is not a corporation, nor even a quasi corporation, nor does the said act make the township like a corporation for any purpose whatever, even by implication. 3. The act expressly provides that the bonds shall be issued “in the name of the county.” 4. The County Court is the agent of the county, and not the agent of the township. (Const. of Mo., art. XI, § 14.)

II. The said act of March 23, 1868, is unconstitutional, because it is therein provided that real estate only shall be taxed for the payment of the bonds issued under it, thus exempting all other species of property. (Const. of Mo., art. XI, § 16.) It can not be urged that the assessments required to be made under this act are not “taxation,” within the meaning of the constitutional prohibition. The only authority of the Legislature to require public improvements, like railroads, to be made at the public expense, is based on their general taxation powers. (Sharpless v. Mayor, etc., of Philadelphia, 21 Pa., 147, and the authorities cited.)WAGNER, Judge, delivered the opinion of the court.

The relator asks this court to grant a peremptory writ of mandamus against the respondent; and states, substantially, that on the 18th day of May, 1869, at a term of the County Court, in and for the county of Linn, in the State of Missouri, a petition signed by twenty-five (and more) persons, tax payers and residents in the municipal township of Benton, in said county, setting forth their desire, as a township, to subscribe twenty thousand dollars to the capital stock of the North Missouri Central Railroad Company, which road was proposed to be constructed through the said township. The petition stated the terms and conditions on which the petitioners desired the subscription should be made. It is further alleged that on the said 18th day of May, 1869, the County Court made, and caused to be entered on the record of its proceedings, an order for an election as prayed for in the petition, which order is set out at length; that in pursuance of said order, an election was duly held, conducted as prescribed by law, and that more than two-thirds of the qualified voters of the township voting at the election, voted in favor of the subscription; that at an adjourned term of the court, held on the 5th day of July, 1869, the court made an order of record, making the subscription in behalf of the said Benton township according to the terms and conditions as set forth in the petition for the election and the order of the court calling the same; that afterwards, at the August adjourned term of said court, held on the 6th day of September, 1869, the North Missouri Central Railroad Company requested the court to issue and deliver to said company the bonds required under the terms and conditions of said subscription; but the court refused, and still refuses, to deliver the bonds, for the alleged reason, only, that the act under which the subscription was made was unconstitutional and void.

The return admits all the facts stated in the petition; that all the proceedings were regularly had, and that the court made the subscription, but denies that the relator is entitled to the bonds; avers that the court ought not to issue and deliver them, because the law under which they acted is violative of the State constitution, and should therefore be regarded as a nullity. The authority for counties to subscribe in behalf of townships and under which the proceedings in this case were had, is derived from an act of the Legislature, approved March 3, 1868. (Sess. Acts 1868, p. 92.) The act is entitled “An act to facilitate the construction of railroads in the State of Missouri.” The first section provides that whenever twenty-five persons, tax-payers and residents, in any municipal township, for election purposes, in any county in this State, shall petition the County Court of such county, setting forth their desire, as a township, to subscribe to the capital stock of any railroad company in this State, building or proposing to build a railroad into, through, or near such county, and stating the amount of such subscription, and the terms and conditions on which they desire such subscription shall be made, it shall be the duty of the County Court, as soon as may be thereafter, to order an election, to be held in such township,...