Wilson v. Polk County

• Decision Date: 14 November 1892
• Citation: 112 Mo. 126,20 S.W. 469
• Parties: WILSON v. POLK COUNTY.
• Court: Missouri Supreme Court

20 S.W. 469

112 Mo. 126

WILSON v. POLK COUNTY.

Supreme Court of Missouri.

November 14, 1892.

CONSTITUTIONAL LAW — IMPAIRING OBLIGATION OF CONTRACTS — ACTION BY TRUSTEE — SUFFICIENCY OF PETITION.

1. Act Jan. 11, 1860, (Charter of the Laclede & Ft. Scott Railroad Company,) § 14, made it lawful for the county court of any county to subscribe for stock of said company. Act March 23, 1861, § 2, withdrew the power of the county court to subscribe for stock of any railroad company without first submitting the question to a vote of the people. Held, that the latter act does not violate the inhibition of Const. U. S. art. 1, § 10, against "impairing the obligation of contracts," where the provisions of the former act were not acted on prior to the passage of the latter.

2. One cannot maintain an action as "trustee" without alleging facts showing himself to be such.

3. In an action on a judgment by the assignee thereof, where the complaint alleges that "before this suit was commenced said judgment was duly assigned for value to plaintiff, who now owns the same," it sufficiently shows that the owner assigned it to plaintiff.

In banc. Error to circuit court, Polk county.

Action by A. D. Wilson against the county of Polk. Defendant had judgment on demurrer, and plaintiff brings error. Affirmed.

The other facts fully appear in the following statement by GANTT, J.:

This action was commenced and made returnable to the April term, 1889, of the circuit court of Polk county. Omitting the caption, the petition is as follows: "Plaintiff states that defendant is, and at all times hereinafter mentioned was, a county of the state of Missouri, and that the Laclede & Ft. Scott Railroad Company was a corporation duly organized under and by virtue of an act of the general assembly of the state of Missouri, approved January 11, 1860, entitled `An act to incorporate the Laclede & Ft. Scott Railroad Company;' that afterwards said corporation accepted the provisions of said act, and organized and did business under and by virtue of said act, and afterwards, due proceedings in that behalf being had, the name of said corporation was changed to the St. Louis & Western Railroad Company. Plaintiff further states that after said corporation organized and did business as aforesaid and accepted said act, to wit, on the ___ day of ___, A. D. 1871, the county court of defendant, Polk county, at a regular session of said court, due proceedings in that behalf being first had, did make and enter of record order to subscribe for, and did by its acts and order then and there duly subscribe for, two thousand five hundred shares of the capital stock of said the Laclede & Ft. Scott Railroad Company, which subscription was then duly accepted by said company, and did afterwards, by an order duly made, appoint an agent to represent said county as to said shares of stock so subscribed for by said county, and for said county to vote said shares of stock at all meetings of the stockholders of said corporation; all of which orders appear of record on the records of said court, to which reference is hereby made. Plaintiff further states that no vote of the people or citizens of said county was taken on the question of the making of said subscription by said county to the capital stock of said corporation under the provisions of the act of the general assembly of the state of Missouri, approved March 23, 1861, entitled `An act supplemental to an act entitled "An act to authorize the formation of railroad associations, and to regulate the same," approved December 13, 1855,' because the said act herein first mentioned, entitled `An act to incorporate the Laclede & Ft. Scott Railroad Company,' was a contract between the state of Missouri and the said the Laclede & Ft. Scott Railroad Company, and by virtue of the provisions of section 10 of article 1 of the constitution of the United States of America was not affected or impaired in any respect by the provisions of said act approved March 23, 1861; and that in and by section 14 of said act entitled `An act to incorporate the Laclede & Ft. Scott Railroad Company' it is provided that `it shall be lawful for any county court of any county in this state to subscribe to the "stock of said company," meaning said the Laclede & Ft. Scott Railroad Company, and may appoint an agent to represent the county, vote for it,' meaning thereby to vote said shares of stock at all meetings of stockholders of said corporation, `and to receive its dividends,' meaning any dividends which said corporation might declare on said shares subscribed for by said county or to be subscribed for by it. Plaintiff further states that afterwards said county, defendant herein, by its duly-authorized agent above mentioned, appointed as above stated, voted said two thousand five hundred shares of stock subscribed for by it, as aforesaid, at various meetings of the stockholders of said corporation; but it did not pay for said shares in whole or in part, and did not issue any bonds or obligations for the payment thereof, in whole or in part; and said county, defendant herein, is now the holder and owner of said two thousand five hundred shares of said stock, and the amount thereof, to wit, two hundred and fifty thousand dollars, is now due by said county, and is wholly unpaid. Plaintiff further states that the said subscription of defendant herein to the capital stock of said the Laclede & Ft. Scott Railroad Company was duly accepted by said company at the time it was made, and that all the stock of said corporation, being the entire amount authorized by its said act of incorporation, was duly issued long prior to the dissolution aforesaid of said corporation. Plaintiff further states that all the stock of said Laclede & Ft. Scott Railroad Company, save about five hundred shares, is held by counties not within the jurisdiction of this court, and by insolvent nonresidents of this state. Plaintiff further states that the St. Louis & Western Railroad Company did, on or about July 1, 1884, become insolvent, and cease to do business, or to use its property or franchises, and became and was dissolved, and has now no property to pay any of its debts. That on October 15, 1887, one Hugh Loonan recovered judgment against said the St. Louis & Western Railroad Company for $15,221.90, with interest, in the circuit court of the city of St. Louis, which judgment is in full force and effect, and is wholly unpaid. That execution was duly issued thereon, and returned unsatisfied, and that before this suit was commenced said judgment was duly assigned for value to plaintiff, who now owns the same, and is the holder thereof. That plaintiff, as trustee, holds and owns a certain bond dated December 2, 1879, whereby the said Laclede & Ft. Scott Railroad Company, for value received, promised to pay to Michael Kinealy or order, three years after date, $10,000, with interest, on which $11,000, with interest, is due and unpaid. Plaintiff further states that on January 15, 1889, in the circuit court of the city of St. Louis, Louis A. McGinnis, to the use of Mrs. Sarah J. Kinealy, recovered judgment against said the St. Louis & Western Railroad Company for $13,260.40, with interest, which judgment is now in full force and effect, and wholly unpaid, and is now held by plaintiff as trustee; and that said judgment appears of record in said circuit court of the city of St. Louis. Wherefore plaintiff prays judgment for the said sum of two hundred and fifty thousand dollars, or so much as will be necessary to pay said debts; the said judgment obtained by said Loonan to be paid in full before any of the other above-mentioned debts of said corporation."

At the return term, defendant filed the following demurrer: "Comes now the defendant in the above-entitled cause, and demurs to the petition of plaintiff for the following grounds of objection, to wit: (1) Said petition does not state facts sufficient to constitute a cause of action against the defendant. (2) Said petition alleges that the subscription to the capital stock of the Laclede & Ft. Scott Railroad Company alleged to have been made by defendant was made without the question having been submitted to voters of said Polk county, and the same is therefore void, and cannot be enforced. (3) Said petition wholly fails to show any power in the county court of Polk county to make the subscription alleged to have been made. (4) Said petition fails to allege any act performed by the county court of defendant which constitutes a legal subscription to the capital stock of said railroad company, and with regard to said subscription said petition alleges no...