State v. Callaway Cnty. Court

• Decision Date: 31 January 1873
• Citation: 51 Mo. 395
• Parties: STATE OF MISSOURI, ex rel CIRCUIT ATTORNEY FOR SECOND JUDICIAL CIRCUIT, Appellant, v. CALLAWAY COUNTY COURT, Respondent.
• Court: Missouri Supreme Court

51 Mo. 395

STATE OF MISSOURI, ex rel CIRCUIT ATTORNEY FOR SECOND JUDICIAL CIRCUIT, Appellant,

v.CALLAWAY COUNTY COURT, Respondent.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Callaway Circuit Court.

Overall, Circuit Attorney and Adams & Guitar, and Edwards & Dunckan, for Appellants.

I. The South Branch of the Louisiana and Missouri River Railroad was a new enterprise not authorized by the original act or charter, and the only authority for the new enterprise is the amendatory act of 1868. The subscription forming the basis of the bonds in question was wholly unauthorized, no assent having been given to the same by the qualified voters of the county. The legislature could not confer on the County Court the power to make such subscription unless “two thirds of the qualified voters of the county at a regular or special election assented thereto” (Art. XI, § 14, Const. of Mo.) The subscriptions and bonds are therefore absolutely void and the County Court has no authority to harass the tax-payers and confiscate their property by illegal levies for the payment of these bonds.

II. The Circuit Courts by the Constitution and also by the Statute Laws of this State have a superintending control over County Courts whether acting in an administrative or judicial capacity. This is a proceeding invoking the proper exercise of this superintending control and ought to have been sustained by the Circuit Court. (Art. VI, §§ 21, 23, Const. of Mo. Chapter 141, Gen. Stat. 1865 pages, 550-551, § 2; Tetherow vs Grundy County Court, 9 Mo., 120; State ex rel West and others vs. Clark County, 41 Mo., 50, 51; Vitt vs. Owens, 42 Mo., 512; Hooper vs. Ely, 46 Mo., 505.)

III. A proceeding in the name of the State, brought by the Circuit Attorney, is the only proper way in which the Circuit Court, in a case like this, can exercise its superintending control over the County Court. The county itself is paralized by the very tribunal created to attend to its business and can not sue its own court. And the county being an integral part of the State for governmental purposes, whatever injures the county injures also the State. And as the county cannot sue its own court, the only proper remedy in such case must be in the name of the State. (See authorities cited on the 2nd point; Doolittle vs. The Supervisors of Broome County, 18 New York, 155; Roosevelt vs. Draper, 23 New York, 318; Davis vs. The Mayor of New York, 2 Duer, 663; The Board of Supervisors of Iroquois County, et al., vs. Keady et al., 34 Ill., 296-297; Sto. Eq. Pl., § 49; Mitf. Eq. Pl. by Jeremy, 4, 21, 24; Cooper Eq. Pl., 21, 22, 191, 102, 202; Atty. Genl. vs Vernon, 1 Vern., 277, 282, S. C., 370; Edwards on Parties in Eq., 60, 61; Calvert on parties, ch. 3, §§ 21, 301, 308; 2 M. & C., 129; 1 Keen, 153; 2 M. & C., 613; 2 Keen, 190; 9 Sim., 30; 1 M. & C., 171; 16 Sim., 228; 13 Sim., 547; 1 Bligh, N. S., 313; 8 Sim., 193, 373.)

IV. The defendants were all proper parties to this proceeding. They were all interested, so that complete justice could not be done in the premises without bringing them before the court. But if any of the defendants were improperly made parties, they should have demurred alone, and not jointly with the others. See Ashley vs. Winston, 26 Mo., 210.

V. The subscription made by the County Court of Callaway county to the South branch of the Louisiana and Missouri River Railroad is wholly unauthorized by the original charter, and in derogation of the Constitution of this State.

1. Under the original charter, approved March 10th, 1859, the

company was authorized to build but one main trunk line. (Sess. Acts 1858-9, 400, § 35.)

2. Under the original charter the County Court of Callaway county were authorized to subscribe to “ one main trunk road,” created by said charter.

3. The subscription in question is made to the capital stock of the “South Branch of the Louisiana and Missouri River Railroad,” see order of County court.

4. The “South Branch of the Louisiana and Missouri River Railroad” had no existence under the original charter, but was created and authorized by the amended charter of said company, approved March 24, 1868. (Sess. Acts 1868, 97 § 22.)

5. The subscription in question was made to “the South Branch of the Louisiana and Missouri River Railroad” after the 4th of July 1865, the date on which the present constitution of this State went into effect. Said subscription was made by the County Court of Callaway county, without having first submitted the question of making the same to the qualified voters of said county, at a regular or special election held therein, and without having obtained the assent of two-thirds of said qualified voters thereto, either prior or subsesequent to the making thereof. Such subscription is illegal and invalid if made without such submission and assent. (Art. XI. § 14, Const. of Missouri; The St. Joseph and Denver City R. R. Co. vs. Buchanan County Court, 39 Mo., 485; State ex rel. Mo. & Miss. R. R. vs. The Macon County Ct. 41 Mo. 453.

The points and authorities relied upon by R. A. Campbell and Sharp & Broadhead, for Defendant in Error, are substantially the same as those urged by Sharp & Broadhead in the case of the State vs. Saline county, 51 Mo. 350, and are therefore omitted.

Ewing & Smith and Hayden, Kouns & Hockaday, for Defendants in Error.

I. There is a defect of parties plaintiff.

That the State is improperly made a party, and that the suit is improperly brought in the name of the State, is clear from the simple fact that the State has no interest, legal or equitable, in the subject matter of the action. (State vs. Parkville and Grand River Railroad Company, 32 Mo., 499.)

This principle applies as much to the case in which the Circuit Attorney proceeds in the name of the State, as if the suit were brought at the relation of a private citizen.

The Circuit Attorneyship is an office created by statute. The officer is the creature of the statute so far as his official powers and duties are concerned.--Every power and duty incumbent upon him is enumerated in and conferred by the statute, and without the statute he can do nothing. There is no statute which confers upon him the right or duty to make the State a party to this proceeding; and the mere fact that such officer commenced suit in the name of the State, does not confer on the State any interest in the subject of the action which the State had not antecedently. The right of the State does not depend upon his action; but his right to act depends upon the interest which the State has. If the State has not (without any action of the Circuit Attorney) such an interest in the controversy as to devolve this duty upon him, the case gains nothing by the fact that the Circuit Attorney commits the State to it as a party plaintiff. (Gen. Stat., 1865, sec. 10, page 142; Id., sec. 1, page 632.)

II. There is a defect of parties defendant.

( a.) In this case the acts which are sought to be enjoined or prohibited are the issuing of certain bonds, the sale of them, and the levy of a tax to pay them with. It is not anywhere alleged in the petition that the L. & M. R. R. R. Co. has done, is doing, or has threatened to do, or to aid in doing, either of these acts; or that said defendant ever advised, instigated, approved of, or procured the doing of either of said acts; or that she is a necessary party to the complete determination of the action, or that she ought to be, or can be, included in any decree that could be made upon the allegations of the petition in this case. Therefore, the L. & M. R. R. R. Co. is improperly made a party defendant.

( b.) Thomas L. Price is improperly made a party defendant.

It is not alleged in this petition that said defendant has done, is doing, or is about to do, any of the acts complained of in said petition. It is not alleged that he has any interest whatever in the subscription, bonds or tax, or that he at any time advised, instigated, approved of, or procured the doing of any act complained of.

( c.) George Bartley, G. E. O. Hockaday and William F. Dunn are improperly made parties.

The petition shows very clearly that the acts complained of were done by these gentlemen as the county court of Callaway county. As mere individuals there is really not a single allegation in the petition which affects them. Their acts as a court are sought to be enjoined or prohibited, and as simply administrative or ministerial, and for this very reason no injunction or prohibition could be issued by the court in the premises. (Vitt vs. Owens, et al., 42 Mo., 512; State ex rel. West vs. County court of Clark county, 41 Mo., 44.)

III. But the petition does not state facts sufficient to constitute a cause of action, as is shown by two leading considerations. (1.) In the language of our Supreme Court in “State vs. Parkville and Grand River Railroad Co., 32 Mo., 496: If the county court should do all that the bill charges it has threatened to do--issue the bonds and levy and collect the tax--it does not appear that the injury to the tax-payers would be irreparable, or such as could not be redressed by an action at law; and unless it thus appears, it is not a case for equitable relief.”

(2.) But if the allegations of the petition are true, those allegations do not charge the defendants with doing, or with intending to do, any act which they have not the legal right to perform.

Under the act of incorporation of March 1868, there is no doubt that the only proper defendant in this case (to wit, the County court,) had the legal right to do all the acts complained of. It has already been decided (State ex rel Mo. & Miss. R. R. Co. vs. Macon County court, 41 Mo., 453) that this legal right of the County court under their charter was not annulled or impaired by Art. XI, § 14 of the Constitution. It is also decided that this said legal right is not affected or impaired by section 30 of the general act of 1861, nor by General Statutes, chap. 63, sec. 7, p. 338, and...