State ex rel. Woodson v. Brassfield

• Citation: 67 Mo. 331
• Parties: THE STATE ex rel. WOODSON, Appellant v. BRASSFIELD et al.
• Decision Date: 30 April 1878
• Court: Missouri Supreme Court

67 Mo. 331

THE STATE ex rel. WOODSON, Appellant

v.BRASSFIELD et al.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Platte Circuit Court.--HON. PHILANDER LUCAS, Judge.

S. C. Woodson for appellant.

1. The law provides for the payment of interest not exceeding ten per cent. per annum. The proposition submitted to the voters of the township was for the payment of semi-annual interest at ten per cent., which is a plain violation of the law, and a fatal objection to the subscription. 2. The stipulation for surrender of the stock to the company is in contravention of § 54, p. 314, Wag. Stat., and being an essential condition of the subscription makes it void. 3. Appellant should have been permitted to show the bonded indebtedness of the city of Weston. Added to this township subscription it exceeded the ten per cent. limit fixed by law upon municipal subscriptions. Acts 1871, p. 55. 4. It is a felony for any county court to subscribe stock or issue bonds unless authorized to do so by a vote of two-thirds of the qualified voters of the county or township. Acts 1872, p. 19. This act requires the affirmative action of two-thirds of the voters evidenced by actual vote, and the court erred in refusing to allow respondents to show that on the day of the election there were 600 qualified voters in said township, and that 385 votes did not constitute two-thirds of the qualified voters.

J. E. Merryman and John Doniphan for respondents, insisted that the act of 1868 had been complied with.

HENRY, J.

The requisite number of the qualified voters and taxable inhabitants of Weston township, Platte county, on the 20th day of May, 1872, petitioned the county court of said county to submit to the qualified voters of said township a proposition to subscribe for $60,000 of the capital stock of the Missouri & Iowa Railroad Company by said county, for the use and benefit of said township. A special election was ordered by the county court, and in pursuance of the order, held on the 2nd day of July, 1872, at which 487 votes were cast, 385 for, and 102 against the the proposition. The following are the details of the proposition: A subscription for $60,000 of the capital stock of said company, to be paid for in the bonds of said township, at par, of the denomination of $1,000, payable 20 years after their date, with interest coupons attached, payable semi-annually, in the City of New York, at some suitable bank or banking house; the railroad company to issue its certificate of stock for the said sum to said county, for the use and benefit of the tax-payers of Weston township, and thereupon the bonds and certificate of stock to be deposited in some bank or banking house in Platte county, which should be required under an appproved bond to deliver the same to the railroad company as follows: Whenever one mile of the said road should be actually completed, &c., $7,500 of the bonds, and a like amount of the stock subscribed for, to be delivered to the company, and for every additional mile so completed, the same amount of bonds and stock, to be delivered to the company; provided that if said company should execute and deliver a bond with approved security, to Platte county, in the penal sum of $120,000, conditioned to return the bonds and stock, if the company failed to complete the road within a reasonable time, then the whole amount of said stock and bonds should be delivered to the company.

This was a proceeding instituted by the prosecuting attorney of Platte county, in the name of the State, to enjoin the judges of the county court from issuing said bonds. A temporary injunction was granted by the judge of the probate court of Platte county, which, on answer and motion, was dissolved by the circuit court of said county, and from that judgment the plaintiff has appealed to this court. In 1870 there was a registration of the voters of Platte county, showing 726 registered voters in Weston township, and a registration of the voters of said county taken in November, 1872, showed that there were in said township 578 qualified voters.

1. TOWNSHIP RAILROAD BONDS: township aid act of 1868 unconstitutional.

The following question arises for determination on this state of facts: Did the requisite number of qualified voters of Weston township assent to the proposition submitted? This is a question of the gravest importance, in consequence of the vast amount of bonds issued by the municipalities of this State to aid in the construction of railroads, and of recent decisions of the Supreme Court of the United States and of this State on the validity of the act of the General Assembly of this State approved March 23rd, 1868, authorizing any municipal township “to subscribe to the capital stock of any railroad company in this State proposing to build a railroad into, through or near such township, whenever two-thirds of the qualified voters of such township, voting at an election held for that purpose, are in favor of such subscription.” The constitution of 1865, in force when that act was passed, and when the election under consideration was held, 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.” Sec. 14, Art. 11. It will be perceived that the act of the General Assembly does not authorize the subscription in the words of the constitution, but qualifies them by the addition of the words “voting at such election.” The constitution requires the assent of two-thirds of the voters of the township, while the law requires the vote of two-thirds of the voters voting at such election.

If the language of the constitution and that of the statute mean the same thing, that is an end of the controversy. If all the voters who vote at an election are, in law, all the qualified voters of the election district, then there is no conflict between the constitution and the law. Does the phraseology of the constitution and that of the law mean the same thing? If it were a question of the first impression--if the fact, that innocent purchasers of bonds issued under the law, will be affected by the determination of this question, were kept entirely out of view--if we could close our eyes to the railroad history of the State, we doubt if any one would seriously contend that the constitution and the act of the General Assembly are in entire harmony with each other.

2. REGISTRATION AND QUALIFICATION OF VOTERS UNDER THE CONSTITUTION OF 1865: evidence.

The case of Bassett v. The Mayor of St. Joseph, 37 Mo. 272, and the State v. Binder, 38 Mo. 465, are not in point here. In the first of those cases the court said: “We think it was sufficient that two-thirds of the qualified voters, who voted at the special election, authorized for the express purpose of determining that question, on public notice, duly given, voted in favor of the proposition. This was the mode provided by law for ascertaining the sense of the qualified voters of the city upon that question. There would appear to be no other practicable way in which the matter could be determined.” The authority in that case was given by an act of the Legislature, and no constitutional question was involved. While there may have been “no other practicable way in which the matter could be determined,” in that, no such difficulty existed in this case. The same constitution which required the assent of two-thirds of the qualified voters, to authorize a subscription for the capital stock of a railroad company by a town, city or county, provided for “a complete and uniform registration, by election districts, of the names of the qualified voters in this State, which registration shall be evidence of the qualification of all registered voters to vote at any election thereafter held.” It further provided that a new registration should be made within 60 days, next preceding the tenth day prior to every biennial general election, and after it should have been made, no person should establish his right to vote by the fact of his name appearing on any previous register. The Legislature passed an act to enforce these requirements of the constitution, and from the date of its approval to that of its repeal, there was “a practicable way” of ascertaining the number of qualified voters in every township in the State.

While the registration law was in force, they only were qualified voters whose names were placed on the registration books. This was the final, qualifying act, and no matter if a citizen possessed every other qualification, if not registered, he was not a qualified voter. It was not the right to register which constituted one a qualified voter, but the fact of being registered as such, was also essential. A qualified voter is one who by law, at an election, is entitled to vote. If, by the law, a person was not entitled to vote, whether in consequence of a disability which deprived him of the right to register, or of his neglect to register with a perfect right to do so, he was equally disqualified. So that the constitution and the act of the General Assembly when this election was held, afforded complete and perfect means of ascertaining exactly how many, and who were, qualified voters in Weston township--a circumstance so widely distinguishing this from the case of Bassett v. The Mayor, &c., and the State v. Binder, that they have no application whatever to the question involved here. Both of those cases, however, are in direct conflict with the State v. Winkelmeier, 35 Mo. 103, in which this court held where 13,000 votes were polled at an election, of which only 5,000 were in favor of the proposition submitted to permit the sale of liquors on Sunday, and only 2,000 were against it, that the vote of 5,000 was not the vote of the majority. The act of the...