Steines v. Franklin Cnty.

• Decision Date: 31 March 1871
• Citation: 48 Mo. 167
• Parties: FREDERICK STEINES et al., Appellants, v. FRANKLIN COUNTY el al., Respondents.
• Court: Missouri Supreme Court

48 Mo. 167

FREDERICK STEINES et al., Appellants,

v.FRANKLIN COUNTY el al., Respondents.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Crews, Letcher & Laurie, for appellants, among other points made the following, in respect to the powers and acts of municipal corporations:

Where power is given upon condition, the condition must be fulfilled or the power is never acquired. Where the law prescribes their acts to be of record, then no act unrecorded can be valid; and this applies to acts preliminary to the acquisition of power, as well as to acts done after power is acquired. Where power is not acquired, or where acquired and the acts done under it are not of record, when the law requires they shall be, negotiable paper issued without such power acquired, or without such record, is void. The want of power and the defect of record are presumed by the law to be known to every person, and therefore as to these particulars there can be no such character or party as a bona fide holder of negotiable paper for value, without notice. (23 Mo. 483; 26 Mo. 272; 41 Mo. 47; 42 Mo. 171; 43 Mo. 353; 45 Mo. 242; 23 N. Y. 439, two cases; also 40 Barb. 579; 11 Ohio St. 183; 13 Ohio St. 330; 15 Ind. 411; 19 Wis. 280; 38 Ill. 44; 19 Iowa, 199; 3 Kernan, 631; 1 Pars. Bills and Notes, 119, 275-7.) And as to defects in the records of the County Courts, see Wagn. Stat. ch. 41; 8 Mo. 235; 33 Mo. 169; 41 Mo. 289; 19 Wis. 280; 42 N. H. 125; 38 Ill. 44; 24 How. 288.

The act of March 21, 1868, does not apply to work uncontracted for. The act was passed while this suit was pending, and is not within the legislative authority because retrospective in its nature and violative of the vested rights of property. (3 N. H. 473; 4 N. H. 16; 10 N. H. 24, 380; 5 N. H. 352; Shawnee County v. Carter, 2 Kansas, 115; Jenkins v. Duanesburgh, 46 Barb. 294; 3 Sto. Con., §§ 1392-3.)

Ewing & Holliday, for appellants.

Bonds issued prior to 1868, and without a vote of the people, were absolutely void, and were not validated by the act of 1868. The first act, requiring a vote before expenditures should be incurred, was passed in 1864, re-enacted in the revision of 1865, was in force when the act of 1868 was passed, and the whole law re-enacted at the same session, with some modifications, and among others a provision making it peremptory on the courts, in terms, to take a vote of the people before issuing any bonds for the purposes expressed in the act. So far from relaxing, the Legislature evidently intended to adhere more rigidly to the policy previously declared on that subject, and meant to restrain within narrower limits the powers of County Courts.

If the omission to take a vote of the people was a defect, and such a one as needed further legislation, certainly the Legislature would have pointed to this defect in some appropriate or intelligible language or terms.

The aim of a curative act is always special and particular; although it may be general in its application to a class of things or objects, it is pointed and distinctive as to the cause or the supposed necessity of it. Where several reasons are supposed to influence legislative action, or are invoked in the interpretation of a law, and some of these only are mentioned or referred to in the language of the act, those not alluded to or indicated cannot be brought within the intention or spirit of the law. A fortiori, where the supposed motives to the enactment are two-fold, and the primary one is not disclosed by any terms in the act that would make it apparent, while the minor consideration is clearly manifested in plain language, the former cannot be brought within the scope and meaning of the act without violating all rules of interpretation. The application of this rule to the case at bar is evident. This act can have effect as respects the interest that such bonds might bear; the former law allowing only six, while this allowed ten per cent. This, together with the removal of restriction in the sale of bonds, is the whole scope of the act. There was an apparent and adequate reason for the change of the law in these respects, but no apparent or sufficient reason for authorizing the issue of bonds to pay for work already done without the sanction of the people.

As the bonds issued prior to the enactment of the law of 1868 were absolutely void in the hands of the holders, the bonds issued in lieu of them, and now held by the respondents, are in like manner void, unless the act last referred to authorized their issue without submitting the question to a vote of the people. But this it did not do; for while the merely incidental matters of the rate of interest and the removal of restrictions that previous laws imposed in the disposition of the bonds are expressly provided for, there is not a syllable even indicating, much less expressing, the intention of the Legislature to authorize the issue of bonds, or to borrow money or incur expenditures for any of the purposes contemplated by said act, without first taking the sense of the people on the subject.

Sharp & Broadhead, for respondents.

The County Court of Franklin county having authority by law to issue bonds for roads, bridges, etc., after a vote therefor, and having issued them, regular on their face, and to all appearances legal, and having made them negotiable instruments, and they having been put into circulation, and purchased by innocent third persons, they were not, in the hands of such innocent purchasers, subject to the inquiry whether the County Court had performed its duties under the law before issuing them, or had caused a vote to be taken. Such purchasers may assume that they were issued according to law, and the county is estopped, as against them, from asserting that its officials failed to discharge their duties under the law before issuing them.

And further, without a vote being taken, the county, by its officers, made contracts for the work, superintended the work, made estimates of the work, accepted the roads when completed, issued and sold the bonds, paid interest on them for two years, and thereby ratified the bonds and waived any irregularity in their issue; and equity will not now aid them to repudiate the bonds, and thus victimize innocent purchasers upon an altar erected by themselves. (Commissioners of Knox County v. Aspinwall, 21 How., U. S., 539; Bissell et al. v. City of Jeffersonville, 24 How. 287; Supervisors of Marshall County v. Schenck, 5 Wall. 772; Rogers v. City of Burlington, 3 Wall. 654; Mercer County v. Hackett, 1 Wall. 83; Van Hostrup v. Madison County, id. 291; Gelpcke v. City of Dubuque, id. 175; Meyer v. City of Muscatine, id. 384; Moran v. Commissioners, etc., 2 Black, 722; County v. Rogers, 7 Wall. 181; Mygatt v. City of Green Bay, 8 Am. Law Reg., O. S., 271; Flagg v. City of Palmyra, 33 Mo. 440; Barrett v. Schuyler County, 44 Mo. 197; 14 Penn. St. 82; 19 Ill. 406; 24 Ill. 75; 2 Metc. 56; 15 Ind. 395; 6 Ellis & B. 327; 10 Wis. 136; 33 Penn. St. 33; 31 Miss. 216.)

By the act of 1868 (Sess. Acts 1868, p. 42) the County Court was authorized to make the bonds in question for work theretofore contracted for and done, and no vote was required; but the act gives new, full and ample power to the County Court to issue the bonds in question for the work which had been done thereunder. The court ordered the bonds to issue, they were issued in compliance with that act, and recited the act as authority for their issue; were tendered to and received by the holders of the first bonds, and the old bonds surrendered. The bonds in question were not, therefore, subject to any question of power under the laws of 1865 or 1866, or of regularity in the execution of power. It was competent for the Legislature to cure any defects in the issue of the bonds--to legalize what was before illegal in their issue--or to give new power for the issue of valid bonds in lieu of others improperly issued. The act of March 21, 1868, was within the province of the Legislature, and the bonds thereunder are freed from any question of power, or the mode of its exercise. (15 Conn. 475; 1 Wall. 202; 7 Wall. 181; 9 Wall. 477; 6 Iowa, 304; 36 Mo. 294.)

James Taussig, for respondents.

I. The bonds issued by Franklin county are commercial secu rities, negotiable, intended to pass from hand to hand by delivery, and subject to all rules governing such securities. (Mercer v. Hackett, 1 Wall. 93; Commissioners, etc., v. Bright, 18 Ind. 93; Wood v. Lawrence, 1 Black, 386; Commonwealth v. Perkins, 43 Penn. St. 400; Moran v. Miami County, 2 Black, 731; Barrett v. Schuyler County, 44 Mo. 200; Gelpcke v. Dubuque, 1 Wall. 206.)

II. The power to issue the bonds is derived from the law which authorizes the work to be done and money to be borrowed to pay for it. The election provided in the law is not the source of the power, but only a preliminary condition for its exercise.

III. A purchaser of such bonds is not bound to look beyond the face of the bonds and the law under which they purport to be issued; and he has a right to presume, in the absence of actual notice to the contrary, that all steps preliminary to the issue of the bonds have been done in the form, time and substance required by law. And where the law requires an election to authorize an expenditure of money or issue of bonds, a purchaser is warranted in assuming, from the actual issuing of such bonds, that such election has been duly held or waived. The county is estopped from denying that the power granted by the law was properly executed, because such denial would be a fraud against the purchaser. (Commissioners of Knox County v. Aspinwall, 21 How. 544-6; Bissell v. Jeffersonville, 24 How. 297, 299; Mercer County v. Hackett, 1 Wall. 92-6; Van Hostrup v. Madison, id. 297; Meyer v. Muscatine, id. 393; Gelpcke v. Dubuque, id. 175-223; Rogers v. Burlington, 3 Wall. 667; Supervisors v. Schenck, 5 Wall. 777-8; Lee County v. Rogers, 7 Wall. 181; Moran v. Miami...