State ex rel. Quincy, Muincy. & Pacific Railway Co. v. Harris
| Decision Date | 18 June 1888 |
| Citation | 8 S.W. 794,96 Mo. 29 |
| Parties | The State ex rel. the Quincy, Missouri & Pacific Railway Company, Plaintiff in Error, v. Harris et al., Judges Sullivan County Court |
| Court | Missouri Supreme Court |
Error to Sullivan Circuit Court. -- Hon. G. D. Burgess, Judge.
Affirmed.
J. P Butler and Edward McCabe for plaintiff in error.
(1) The constitution of Missouri of 1865 and the general laws passed pursuant thereto authorized the making of the contract of subscription, provided two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, should assent thereto. Const. 1865, sec 14, art. 11; 1 Wag. Stat., sec. 17, art. 11. And mandamus is the proper remedy to enforce contracts made thereunder. 1 Wag. Stat., sec. 22, art. 11. (2) The judgment should have been for the relator, and the peremptory writ issued. State ex rel. v. Mayor, 37 Mo. 270; State v Binder, 38 Mo. 450; State ex rel. v. County, 44 Mo. 504. (3) The contention of the relator is that two-thirds of the qualified voters, as used in the constitution and laws of Missouri in force at the time of the making of the contract in question, does not mean two-thirds of those qualified and entitled to vote, but only two-thirds of those qualified and actually voting, and is to be determined from the official return of the result. It makes no difference how many persons were registered as qualified voters in said county at the time of such election, for all qualified voters therein who absented themselves therefrom are presumed to have assented to the expressed will of the majority of those voting. Hence the registration books should have been excluded and the law declared as requested by the relator. County v. Johnson, 95 U.S. 360; Township v. Rogers, 16 Wall. 664; County v. Smith, 111 U.S. 563. (4) The contract having been lawfully made between the county and the relator company, and in good faith performed by the latter, the judgment of the circuit court herein impairs the validity thereof, in violation of section ten, of article one of the constitution of the United States. Bank v. Knoop, 16 How. 376; Douglas v. County, 101 U.S. 677; County v. Smith, 111 U.S. 556. (5) We are not unmindful that the supreme court of this state subsequently promulgated a different doctrine from that asserted in the cases first cited. State ex rel. v. Brassfield, 67 Mo. 331; Webb v. County, 67 Mo. 353; State ex rel. v. Walker, 85 Mo. 41. But the settled judicial construction given to the laws of Missouri in the cases first cited, so far as this contract of subscription is concerned, is as much a part of the law as the text itself, and the subsequent change of decision is the same in effect as a repeal or an amendment by legislative enactment, and cannot be permitted to impeach and impair the validity of the contract of subscription sought to be enforced in this proceeding. Ins. Co. v. Debolt, 16 How. 432; Douglas v. County, 101 U.S. 677; Railroad v. County, 53 Mo. 158; Long v. Long, 79 Mo. 655, 656.
A. W. Mullins for defendants in error.
(1) The subscription in question was not authorized by the assent of two-thirds of the qualified voters of Sullivan county. The constitution of this state, of 1865, provided that "The general assembly shall not authorize any county, city, or town to become a stockholder in, or to loan its credit to any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto." And the legislature, in the revision of the statutes next following the adoption of that constitution, made the statute relating to railroad companies conform to the constitutional requirements. Const. of Mo., 1865, art. 11, sec. 14; G. S. 1865, sec. 17, p. 338. (2) In pursuance of the provisions of the constitution of this state, of 1865, requiring the general assembly "to provide, by law, for a complete and uniform registration, by election districts, of the names of qualified voters in this state," such registration law was enacted and approved, December 16, 1865, and a supplemental act was passed and approved, March 12, 1866, and a revised act was passed and approved, March 21, 1868; and under the very rigid requirements of these enactments, in force at the time of the special railroad election in Sullivan county, held February 22, 1870, it was the highest evidence that the persons whose names appeared on the registration books, as qualified voters of said county, were in fact and in law qualified to vote therein. And the names of the qualified voters, appearing on such registration books, was and is the best evidence and controlling test as to the number of qualified voters in said county at the time. Const. of Mo., 1865, art. 2, sec. 4; G. S. 1865, p. 904; Id., sec. 12, p. 907; Id., sec. 18, p. 908; Id., sec. 1, p. 910; Laws 1868, p. 131; Id., sec. 14, p. 135; Id., sec. 18, p. 136; Id., sec. 35, p. 139; State ex rel. v. Brassfield, 67 Mo. 331; Webb v. County, 67 Mo. 353; State ex rel. v. Bader, 67 Mo. 476; State ex rel. v. Walker, 85 Mo. 41. (3) The record discloses that when the special election was held in Sullivan county, February 22, 1870, to vote on the railroad proposition, there were nineteen hundred and forty registered voters qualified to vote at said election in said county, and the returns of the election made to the clerk of the county court, when canvassed, showed that ten hundred and forty-nine votes, only, had been cast in favor of the proposition. There were, therefore, lacking two hundred and forty-five votes of being the requisite two-thirds of the qualified registered voters of the county in favor of the subscription, whose assent had to be obtained in the manner provided by law before any valid subscription could be made by the county court. Such was the constitutional mandate, and so the statute provided. Authorities supra. But the members of the county court then in office, disregarding the registration law and the proper means of ascertaining the number of qualified voters in the county, and assuming that, as ten hundred and forty-nine voters of the county had voted for the subscription and only two hundred and fifty-seven against it, therefore the proposition had carried by the requisite vote -- two-thirds of those voting having favored it. "As county courts," however, "are only the agents of the county, with no powers except what are granted, defined and limited by law, like all other agents they must pursue their authority and act within the scope of their powers." And as two-thirds of all the qualified registered voters of the county did not vote in favor of subscribing for the stock and incurring the indebtedness, the action of the county court in undertaking to make the subscription was without authority of law, and not valid or binding as against the county. Wolcott v. County, 26 Mo. 272; Steines v. County, 48 Mo. 167; County v. Wilson, 61 Mo. 237; Sturgeon v. Hampton, 88 Mo. 203; State ex rel. v. Brassfield, 67 Mo. 331; Ranney v. Bader, 67 Mo. 476. (4) Sullivan county was not and is not estopped by the unauthorized acts of its agent, the county court. Sturgeon v. Hampton, 88 Mo. 203; City v. Gorman, 29 Mo. 593; Carpenter v. Lathrop, 51 Mo. 483; Marsh v. County, 10 Wall. 676; Jarrott v. Moberly, 103 U.S. 580. (5) If, however, the authority had been conferred upon the county court to make the subscription for the stock in relator's company, still, under the terms and conditions of the order of the county court upon which the vote was taken, the railroad company did not become entitled to the bonds, (1) because it failed to "permanently locate" its said road "continuously through the state of Missouri, from West Quincy, in Marion county, in said state, to some point on the Missouri river opposite, or near, Brownsville, in the state of Nebraska," and (2) because of a failure on the part of the railroad company to complete the grading, bridging and tieing of the two sections of six miles each, or either of them, in Sullivan county, within the time limited by law, -- ten years from the time the company was incorporated, -- as shown by the weight and preponderance of the evidence. And full compliance with these conditions of the order, according to its terms, was an essential prerequisite to a right to the bonds. Wagner v. Meety, 69 Mo. 150; State ex rel. v. County Court, 64 Mo. 30. (6) It is shown in the record that the line of railroad was, in 1880, established west of Milan, in Sullivan county, and it further appeared that the road had subsequently been constructed as far as the city of Trenton, in Grundy county; but that line and route was a total departure from the location required in the order of the county court, that the "said railroad to be located and constructed through said Sullivan county from east to west, on a line as near through the center of said county as practicable," the line from Milan to Trenton having deflected off to the southwest. So, a portion of relator's road has been permanently located and built on a line and route entirely variant from that specified in the county court's order. This is, of itself, material and sufficient to have justified the circuit court in denying the writ. Wagner v. Meety, 69 Mo. 150; State ex rel. v. County Court, 64 Mo. 30; Marsh v. County, 10 Wall. 676.
OPINION
This is a proceeding by mandamus to compel the judges of the county court of Sullivan county to issue eighty thousand dollars of bonds to The Quincy, Missouri & Pacific Railroad Company, upon the trial of which judgment was rendered for defendants, from which plainti...
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