Wilson v. Polk County

• Decision Date: 14 November 1892
• Citation: 20 S.W. 469,112 Mo. 126
• Parties: Wilson, Plaintiff in Error, v. Polk County
• Court: Missouri Supreme Court

20 S.W. 469

112 Mo. 126

Wilson, Plaintiff in Error, v. Polk County

Supreme Court of Missouri

November 14, 1892

Error to Polk Circuit Court.

Affirmed.

M Kinealy and James R. Kinealy with Adiel Sherwood for plaintiff in error.

(1) Points 1, 2 and 3 of the demurrer merely raise the question of the power of the county court to subscribe for the stock without a previous vote of the people. On this question this court down to 1878 uniformly held that the rights of the railroad company to subscriptions of stock made by the counties under section 14 of the charter (Laws of 1859-60, p 438) were not and could not have been taken away by the act of March 23, 1861, or by the constitution of 1865. Smith v. Clark Co., 54 Mo. 70; State v. County Court, 51 Mo. 522; State v. Macon Co., 41 Mo. 453. (2) The supreme court of the United States, which, as to the question of the impairment of the contract, is the court of last resort, says, in Dallas Co. v. McKenzie, 110 U.S. 684, that the validity of bonds issued by the counties in payment of stock subscriptions made under the authority of that charter of the Fort Scott Railroad Company "is no longer an open question." In fact not only was the charter a contract which could not be impaired by any state legislation, but the construction put upon the charter by the courts, both state and United States, became a part of the charter and rendered indelible its character of a contract as to such subscriptions, and made the amounts unpaid upon such subscriptions property which could not be impaired by subsequent adverse decisions. Hence, we submit that the court of final resort having pronounced those subscriptions valid, and the question no longer an open one, its ruling ought to be followed in this court. (3) The fourth point of the demurrer is not well taken. The statement is full and ample, and alleges every fact essential on a general demurrer for failure to state facts constituting a cause of action. Cockerill v. Stafford, 102 Mo. 57; Beeker v. City, 94 Mo. 379; Werth v. City, 78 Mo. 108. (4) Until some reason is shown in support of the fifth point, we do not think it requires extended notice. This suit was instituted within five years after the alleged dissolution by insolvency, and cessation from business, of the railroad company. Garesche v. Lewis, 15 Mo.App. 197.

Upton & Skinker with J. W. Ross for defendant in error.

(1) The subscription having been made by the county court, without submitting the question to a vote of the citizens of the county, it was absolutely void. "There is no vested right in a railroad company to a subscription until it is actually made, and until that event occurs the legislature may alter the method whereby such subscription is to be made without infringing any right." State ex rel. v. Garroutte, 67 Mo. 445; State ex rel. v. Dallas Co., 72 Mo. 329; State ex rel. v. Walker, 85 Mo. 41; State ex rel. v. Harris, 96 Mo. 29. (2) Plaintiff's petition wholly fails to state any acts performed by the county court which constitutes a legal subscription to the capital stock of said railroad company. Plaintiff merely states that "said court, due proceedings in that behalf being first had, did make and enter of record its order to subscribe for, and did, by its acts and order, then and there duly subscribe for." This is not pleading the performance of a condition precedent in a contract; nor is it cured by our statute which provides that, in pleading a judgment, "it shall not be necessary to state the facts conferring jurisdiction." Plaintiff makes no attempt to set out the judgment or order of the county court, but merely states what he conceives to be the legal effect of it. His statement is merely a conclusion of law, which is equivalent to no statement. Bliss on Code Pleadings [1 Ed.] sec. 210; Pier v. Heinrichoffen, 52 Mo. 333; Kerr v. Simmons, 82 Mo. 269; State ex rel. v. Hudson, 13 Mo.App. 61. (3) Plaintiff's statements that the judgments were "duly assigned" to him, without stating who "duly assigned" them, and his statement that he owns the bond as trustee, without stating any facts to show that he is trustee, are mere conclusions of law, and show no right of action in plaintiff. Dyer v. Krayer, 37 Mo. 603; Bank v. Donnell, 35 Mo. 373; Smith v. Dean, 19 Mo. 63. (4) The petition does not show any power in the county court to subscribe for said railroad stock. This is a fatal defect. Donaldson v. Butler Co., 98, Mo. 163; Cook v. Putnam, 70 Mo. 668. (5) It is apparent from plaintiff's printed abstract of the record that this suit is barred by the statute of limitation.

OPINION

In Banc.

STATEMENT.

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 & Fort 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 & Fort 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 the 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, twenty-five hundred shares of the capital stock of the said Laclede & Fort 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 & Fort Scott Railroad Company,' was a contract between the state of Missouri and the said Laclede & Fort Scott Railroad Company, and by virtue of the provisions of said 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 & Fort 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 the said Laclede & Fort Scott Railroad Company, and may appoint an agent to represent the county to 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 twenty-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 twenty-five hundred shares of said stock and the amount thereof, to-wit, $ 250,000 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 Laclede & Fort 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 & Fort Scott Railroad company, save about five hundred shares, is held by counties not within the jurisdiction of this court, and by insolvent non-residents 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 the said 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...