120 Mo. 577 | Mo. | 1894
The county of Dunklin brought this suit in 1890 against Charles P. Chouteau to set as.ide a patent professing to convey one hundred thousand acres of swamp lands to the Cairo and Eulton Railroad Company; to vacate two orders of the district county court, upon which the patent is based; and to vacate three compromise deeds from the county to the defendant. There was also a count in ejectment. The trial court dismissed the bill and the plaintiff appealed, so we are to consider the equity branch of the case only. The bill contains numerous charges of fraud, but there is no evidence to support any of these charges, and they need not be noticed.
The record discloses the following facts: The acts of March 3, 185.1, and February 23, 1853, donated the swamp lands, which the state acquired by the act of congress of September 28,1850, to the counties in which the lands were situated, giving to the county courts power to reclaim the lands and to that end to sell them in the manner pointed out in the act of 1851. Under these acts, Dunklin county acquired about four hundred thousand acres. The Cairo and Fulton Railroad Company was organized in January, 1854, under the general railroad law passed on the twenty-fourth of February, 1853. Laws of 1853, p. 121.
An act was passed on the seventh day of December, 1855 (Local Laws of 1855, p. 353) enabling eight or nine counties, Dunklin being one of them, to transfer swamp lands to the Iron Mountain or Cairo and Eulton Railroad Company. It provides that, “whenever a majority of the voters of either of said counties shall petition the county court of their county, it shall be lawful, and is hereby made the duty of said court, to enter an order upon their record transferring” alternate portions of said lands to either of said companies, the order to be certified to the governor, who shall issue a patent to the company. This act also provides that the land shall not be transferred at a rate less than $1 per acre, payable in stock of the company, the stock and accruing interest thereon to be used for the sole purpose of reclaiming swamp lands.
On the eighteenth of December, 1855, a petition, signed by twenty-four persons representing themselves to be citizens of Dunklin county, was presented to the district county court, asking that court to make a subscription to the stock of the Cairo and Eulton Railroad Company, and in payment therefor to transfer to the company swamp lands.. On the same day that court made the following order:
“On motion and being fully satisfied that the same*585 will conduce to the interest of the citizens, generally, of this county, it is now here ordered and directed by this court that the sum of $100,000 be subscribed by the said county of Dunklin to the capital stock of the Cairo and Fulton Railroad Company of the said state of Missouri, and that'G-eorge W. Mott be, and he is hereby appointed to make such subscription in due and proper form, and it is further ordered that alternate sections ■of the swamp and overflowed lands owned by and commencing on the northern boundary thereof and extending thence southwardly belonging to the said county of Dunklin, be sold, transferred, conveyed and set over by deed or deeds in due and proper form at $1 per acre, to an amount sufficient to meet and fully pay off said subscription upon the execution by the said company of a certificate or receipt therefor in proper form through its duly authorized agent as in other cases of stock subscriptions where payment is made in advance, the same to bear interest at six per cent, per annum from the date of said transfer.”
Thereafter and on the eighteenth of March, 1856, the agents of the railroad company filed in that court their report of the lands selected. This report was .approved by the court on the twenty-first of the same month. The order of approval also directed Mott to ■execute proper deeds to the company.
As bearing on the validity of the order of the ■eighteenth of December, 1855, the evidence discloses these further facts: The twenty-four persons signing the petition did not constitute a majority of the voters ■of the county. It does not appear by any direct evidence whether a vote of the taxpayers was ever held or not, but the fair inference from all the evidence is that no such election was held. The courthouse of Dunklin county was destroyed by fire in 1872, and all xecords of the county and circuit courts were consumed.
In two or three months after the date of the order directing Mott to execute deeds to the company, Nathaniel G. Murphy, superintendent of public works of Dunklin county, commenced a proceeding in the supreme court to compel the district county court to vacate the order of the eighteenth of March, 1855, but the supreme court refused a peremptory writ on final hearing. The details of that proceeding will be noticed hereafter.
It does not appear that Mott ever executed a deed to the railroad company, but • certified copies of the order of the district county court and the approved report of the selection of the lands were filed in the office of the secretary of state on the first of April, 1857; and on the twentieth of that month the governor executed a patent, reciting therein the order of the district court of date the twenty-first of March, 1856, and stating that the order was made pursuant to the act of December 7, 1855, and conveying the one hundred thousand acres to the company. A certificate for four thousand shares of stock was issued to the county by the company in July, 1858.
On the twenty-third of May, 1857, the Cairo and Fulton Railroad Company conveyed the larger portion of the lands thus acquired to trustees to secure a large number of bonds issued by the company to raise money to build the road. The company also made a supplemental deed of trust for the same purpose in 1858. The defendant held a large number of these bonds. Default having been made in the payment of them, he commenced. a suit to foreclose the first deed of trust. This foreclosure suit was commenced in 1871, and he obtained a decree of foreclosure in 1882, and under that decree became the purchaser of eighty-six thou
It appears Dunklin county sold to various persons some of the lands purchased by defendant. In view of this state of affairs, the county court made the defendant Chouteau a proposition of compromise, which proposition he accepted. In execution of this compromise Chouteau released to the county nine thousand, six hundred and eighty-two acres, and the county released to him sixty-three thousand, six hundred and twenty-eight acres. These deeds of release were executed in January, 1884. Another compromise was made in 1888 as to lands acquired by Chouteau under the foreclosure of the supplemental deed of trust, and pursuant to this compromise he released to the county three thousand, three hundred and ninety-two acres, and the county released to him one thousand, six hundred and forty-three acres. A further deed of one hundred and sixty acres was made to Chouteau in 1889, to correct a mistake in a former deed. These compromise deeds to Chouteau were not executed by the presiding judge of the county court, but were all executed by commissioners appointed by that court. The county now claims that these compromise deeds were made in violation of then existing laws, and were without consideration.
1. It will be seen from the foregoing general history of this case that the defendant’s title to the lands rests upon the following orders, proceedings and conveyances: The order of the district county court, made on the eighteenth of December, 1855, subscribing $100,000 to the stock of the Cairo and Fulton Railroad Company, the stock to be paid for by a transfer
There can be no doubt but the defendant acquired all the title which the railroad company had or could convey, and this, too, without any regard to the compromise deeds. If he acquired a good and valid title from the railroad company, then the validity of the compromise deeds need not be considered. The claim now made for the county is, that no title passed to the railroad company; that the order of the district county court was, and is, void — void under the special act of the seventh of December, 1855, because the petition was not signed by a majority of the voters, and void under the general railroad law, because made without a vote of the taxpayers.
The special act of the seventh of December, 1855, made it the duty of the district county court, when requested by a petition signed by a majority of the voters of the county, to subscribe for stock in the Cairo and Fulton Railroad Company, and in payment therefor to transfer swamp lands to the company. The petition presented to that court was not signed by a majority of the voters of the county. Indeed, the twenty-four persons signing the petition do not appear to have signed it as voters, but simply as citizens of that county. The order made by the court does not even profess to be made pursuant to any petition, or
We come, then, to the general railroad law passed in 1853, under which the Cairo and Fulton Railroad Company was organized. The twenty-ninth section (being sec. 30, p. 427, 1 R. S. 1855) provides: “It shall be lawful for the county court of any county, and the city council of any city, to subscribe to the capital stock of any railroad company duly organized under this or any other act in this state; and the county court or city council subscribing, or proposing to subscribe, to such capital stock, may, for information, cause an election to be held, to ascertain the sense of the taxpayers of such county or such city as to such subscription, and as to whether the same shall be paid by issues of county or city bonds, as the case may be, or by taxation.” Sections 31 and 32 provide for the levy and collection of a special tax to pay the subscription, and give to the taxpayers the right to convert- tax receipts into stock. Section 33 provides: “Any county subscribing for railroad stock which shall have internal improvement funds, or overflowed or swamp lands, granted to it by the state, may apply such funds, or mortgage or sell such overflowed or swamp lands, to pay such subscription, or any part thereof, and provide for the remainder, if any, by the tax, as aforesaid.”
The claim of the plaintiff is that the words “may for information” in section 29, mean shall for information, and hence a subscription to the stock of the railroad company could only be made pursuant to a vote of the taxpayers. Section 29 was amended in 1860 so as to read, “shall for information,” and in 1861 it was further amended, so as to make a majority vote of the qualified voters a condition precedent to making a sub
The defendant insists that this question must be deemed settled by the case reported under the name of Dunklin County v. The District Court of Dunklin County, 23 Mo. 449. In that case Murphy, as superintendent of public works of Dunklin county, applied to this court for a writ of mandamus to compel the district county court to vacate the order now under consideration. In his petition he set out the act of congress, the act of this state donating the lands to the counties, and alleged that the subscription to the stock of the railroad company and the conveyance of swamp lands in payment thereof would not .tend to reclaim such lands or aid in building levees and drains as contemplated by the act o‘f congress; that such an appropriation of the lands was in direct violation of the trust reposed in the county, and contrary to the wishes of a large majority of the inhabitants, thereof; and that the district county court, in making the order, acted without authority of law and against the interest of the citizens of that county. The substance of the return
It was held mandamus was not the proper remedy. “But,” says the court, “the parties have argued the whole matter, and desire our opinion upon all the ques: tions involved; and as it may be a matter of public interest that our opinion should be known, we shall not withhold it. These questions are, whether, under the several acts of the legislature úpon this subject, the district county court had authority to make the sale complained of, and, if the authority was expressly given by these acts, whether it was competent to the state legislature, in view of the trust annexed to the grant, to authorize such a disposition of the property.” After citing several acts it is said: “Under the general railroad law of 1851 (Sess. Acts, 1851, secs. 29, 32) the county courts are empowered to subscribe stock, in behalf of their counties, in railroad companies, and when any county has swamp land under the grant of the state, the county court is expressly authorized to sell the same in order to pay its railroad stock subscripts u; and by the act of December 7, 1855 (Sess. Acts, 1855, p. 353), it is made the duty of the county courts of Dunklin, Stoddard and certain other southeastern counties, whenever a majority of the voters petition them respectively to that effect, to transfer alternate tracts of their swamp lands to the Iron Mountain or Cairo and Fulton Railroad. * * * Under these Several .statutes, it is manifest that this county court had authority to dispose of the lands as they have done.”
The question whether a vote of the taxpayers was essential to a valid subscription under section 29 was
Though a vote of the taxpayers may havo been essential to a valid subscription, still there is nothing in either section which required a vote to be taken upon the question whether the subscription should be paidr
The act of the twenty-seventh of February, 1857 (Acts-of 1856-1857, p. 271), not before mentioned, is, in our opinion, worthy of some consideration in this connection. It provides that whenever the county courts of four designated counties, Dunklin being one of them, shall be satisfied that full payment has been made for any lands sold as swamp lands, they shall cause a patent to be issued to the purchaser. It is then provided that the patent shall be signed by the president of the court. It is also made the duty of the governor to
2. But let it be conceded that a vote of the taxpayers was essential to a valid subscription and that such a vote was essential to a valid transfer of the lands to the company in payment of the subscription; still it does not follow that the county should have the decree prayed for in this case. We think the county has no standing in a court of equity to question the validity of the sale at this late day. It is well settled that the doctrine of laches applies to a county or other municipal corporation, as well as to. individuals. Railroad v. Marion County, 36 Mo. 295; State ex rel. v. West, 68 Mo. 229; Boone County v. Railroad, 139 U. S. 684. Oare must be taken in applying this doctrine to a county or other municipal corporation. “As experi
This suit was instituted thirty-three years a* ■date of the order and patent which the county set aside, thirty-two years after the stock wa the county, and thirty years after the sto'‘ on an execution against the county. Hist was pending in the principal foreclosure eleven years, and then followed the sr closure suit. That all these things v
3. It is true the patent recites the act of the seventh of December, 1855, as being the law under .which the order of the district county court was made, while, the order stands and must stand on the general railróad law. This misrecital does not make the patent void. A like question was so ruled in Chouteau v. Allen, 70 Mo. 324. The judgment of the circuit court is affirmed.