Columbia Bottom Levee Co. v. Meier

39 Mo. 53 | Mo. | 1866

Eagg, Judge,

delivered the opinion of the court.

The professed object of the act incorporating the Columbia Bottom Levee Company was to reclaim certain lands adjacent to the Missouri and Mississippi rivers, in the county of St. Louis, from liability to overflow. The designated limits embraced a large amount of land belonging to a number of different proprietors, and in the preamble to the act it is assumed to be passed upon their application. The first board of directors is designated in the act and the manner of their organization pointed out. Whenever, therefore, it is shown that the said organization did take place as directed, there was a legally constituted company in existence duly authorized by the act to proceed at once to carry out the purpose of its creation. There can be no question now as to the power of the Legislature to create such a company, and to invest it with all the necessary power and authority to construct whatever works may be necessary to accomplish the object intended, and to raise the funds to pay for the same by assessments on the lands to be benefited thereby. This question was fully discussed and determined in the case of Egyptian Levee Co. v. Hardin, 27 Mo. 495.

The appellant here (defendant below) insists that he was not a member of the company, and. cannot be held liable to its assessments unless he had expressly given his assent to' the exercise of such a power by an acceptance of the charter. The power of the Legislature to delegate the authority to this company to levy a tax or assessment for the purposes indicated being settled, it follows necessarily that liis’ assent or dissent is a matter of no consequence. The act is evidently passed upon the idea that it is a work of sufficient public utility to require its execution and to justify the incorporation of a company with the powers granted by it. The power to levy an assessment upon the lands in question is not to be understood as a power to tax in the ordinary meaning of that term. It is the power to compel the payment of a sum limited by the terms of the law as a compensation for a direct benefit conferred.

Suppose that the State itself bad undertaken to do this work. Will it be pretended that there is no power to compel the owners of the land to pay a tax sufficient to compensate for the actual amount of benefit received by them ? If the State can do it, certainly it can delegate the power to a company to do the same thing.

Upon the idea, then, that there was a public necessity for this work — and the Legislature must be the judge of that matter — and that it would result in direct benefit to the lands designated by the act, there can be no hardship upon individuals when the rate of assessment is equal and tlfe terms are fixed by which they can have a voice in controlling the affairs of the company. The work to be constructed and the general management and control of all matters pertaining to the business of this company must of necessity be left to the board of directors. If the board exceeds its authority, or attempts to do anything manifestly injurious or oppressive to the land owners in question, there is no doubt of the existence of a remedy for such evils; but the character of the work done under its supervision and by its authority cannot be the subject of investigation in a suit like this, and that portion of the answer which undertook to set up the insufficiency of the work as a defence was properly stricken out. Having disposed of this question, it will not be necessary to notice what is said in reference to the exclusion of testimony tending to prove that part of the answer. It was rightly excluded.

It is insisted that there was error in the exclusion of testimony offered by the defendant tending to prove that the. organization of the company by the election of its board of directors was'illegal, for the reason that less that one half of the land in question was represented by the persons voting at said election. But this cannot be material. The first board of corporators had been duly organized as required by law, and the second board, as shown by the records of the company, was elected by the votes of a majority of the land owners in the district. The first assessment made by the board had been paid by a large majority of the proprietors of the land, including the defendant Meier. Now, if it be admitted for the sake of the argument that there was error in excluding the testimony, still he is not prejudiced, for the reason that it was abundantly shown that a large majority did acquiesce in what was done by the board; thus furnishing sufficient evidence, if any were necessary, to show their acceptance of the charter ; and the defendant is bound whether he directly assented or not. The act of incorporation does not require a majority of votes of all the land owners to elect a board of directors. It-prescribes the qualifications of voters simply, and a majority actually voting would be sufficient to elect; and a board of directors thus chosen would be fully authorized to act, if the election should be in other respects regular.

Some other points are made by the appellant’s brief, but, as they do not appear properly upon the record, it is not ne-. cessary to consider them.

The other judges concurring, the judgment of the court below will be affirmed, with ten per cent, damages.