Alexander Martin, Special Judge.
This is an action for damages against the defendant on account of its refusal to issue and deliver to plaintiff certificates of its capital stock, and was commenced in August, 1873. It is alleged in the petition: that on the 12th day of September, 1853, Jackson county subscribed the sum of $75,000 to the capital stock of defendant, and that it paid said subscription by special taxes levied upon, and ■collected from, all taxable property for the years 1856, 1858 and 1859 ; that on the 3rd day of September, 1860, .said county in pursuance of an election held to that end, subscribed a further sum of $200,000 to the capital •stock of defendant, and that said subscription was paid by means of special taxes levied and collected from taxable property, for the years between 1861 and 1871 inclusive. It is further alleged that upon payment of said special taxes, the clerk of the county court issued and •delivered, to the persons so paying, tax certificates ■declaring the amount paid by them respectively; that by virtue of assignments to him, the plaintiff is owner of such certificates for taxes paid by taxpayers for the years 1856, 1858 and 1859, in the sum of $377.19, and for ■taxes paid for the years between 1861 and 1871 inclusive, in the sum of $11,193.39, amounting in the aggregate to .a sum total of $11,570.50.
It is next averred, that upon presentation of these tax certificates to defendant, for the purpose of having them converted into shares of the defendant’s capital .stock, the defendant declined to recognize the right of plaintiff to such shares, and refused to transfer, issue, or deliver to him certificates of the same.
After some specific denials, the defendant in its •answer, pleads affirmative matter, wherein it is alleged that, upon payment of said subscription of $75,000, the defendant issued, in fulfilment of its part of the obligation •contained therein, a certificate of 750 shares of its capital stock, to the county of Jackson, being the full amount *640called for in said subscription, and that, by virtnre of an execution sale under a judgment against said county, said shares were sold and transferred to one John Gr. Priest, and entry to that effect made in the stock books of the company. In relation to the subscription of $200,000, it is alleged that the same was made and effected for the benefit of said county, and not for the use or benefit of the taxpayers, and that the county court having sold the stock represented by said subscription to divers persons, too numerous to mention, caused the defendant to issue certificates of stock to such persons, none of which ever came into the hands of plaintiff.
It is further alleged in the answer, that, notwithstanding the county owned the stock, the county court caused certificates to be issued to the persons paying special taxes for railroad purposes, which were presented to the company for the purpose of being converted into shares of capital stock, and upon which the company issued certificates of its stock to such persons in the full amount of $200,000, long prior to the date of the certificates sued oh. The new matter of the answer is denied in the reply.
The issues thus raised by the pleadings were tried by the court without the intervention of a jury. It appears from the instructions, that the court ruled against the plaintiff on his demand under the subscription of $75,000, and in his favor on his demand under the subscription of $200,000. In accordance with this ruling, judgment was entered for plaintiff in the sum of $14,224, being the amount of his demand with interest on account of his tax certificates relating tó the subscription of $200,000,. from which the defendant appeals.
L The right of the plaintiff to shares in the capital stock of defendant is a creation of the statute. Undoubtedly it was competent for the law-making power, while-authorizing the counties to subscribe to the capital stock of railroads, and to impose special taxes for the purpose of paying such subscription, to declare whether the stock *641subscribed for should belong to '‘■he county in its corporate capacity or to the taxpayer, who eventually, in every instance, bears the burden of tht, subscription. No title to the shares in litigation is claimed or pretended, outside of legislative enactments. In the charter of defendant of February 17, 1849 (Sess. Acts 1849, p. 219), which was amended by act of December 25, 1852 (Sess. Acts 1852, p. 70), counties, cities and towns were authorized to subscribe to its capital stock, without any vote or advisory election of the taxpayers. They were authorized to issue bonds in payment of its subscriptions, or to make any other provision for payment agreeable to the parties. No provision whatever is to be found in the charter of defendant, or its amendments, conferring upon taxpayers any title, either legal or equitable, to the capital stock thus authorized to be subscribed and paid for. In the 29th section of the general railroad law of February 24, 1853 (Sess. Acts 1853, p. 121, R. S. 1855, p. 427), the county court of any county is authorized to subscribe to the capital stock of any company organized under that law or any other act of the state.
It is futher provided that Such court may, for information, cause an election to be held to ascertain the sense of the taxpayers as to such subscription, and as to whether the same should be paid by issue of bonds by taxation. In the 30th section it is made the duty of the court to issue bonds or levy a special tax to pay the subscription, the funds raised -by such tax to be kept apart from other funds, and to be appropriated to no other purpose than the payment of such subscription. In the 31st section it is provided that the county court shall cause to be issued and delivered to the persons paying such special taxes, certificates to that effect, which shall be convertible into the stock of the company for whose benefit the subscription was made. - .In the 32nd section, the county is authorized to raise funds by issue of bonds to pay the instalment of the subscription in *642anticipation of the collection of the special railroad tax levied for that purpose. Under the 56th section, all existing railroad corporations are made subject to the provisions of the general law, in so far as they are not inconsistent with their charters. In pursuance of judicial construction the 29th section was so amended as to substitute “shall’’for “may” with reference to the advisory election, thus making such election a condition precedent to a subscription by the county (Sess. Acts 1859-60, p. 88).
Thus, it will be seen that two distinct methods of subscription by counties and cities were apparently in force at the same time. - By the method authorized in the charter of defendant, no advisory election was necessary, no particular form. or process of payment is indicated and no right to the stock subscribed for is conferred upon the taxpayer. By the general law, an advisory election is necessary, payment by bonds or taxation is authorized, and a payment of special taxes, when properly certified, gives to the taxpayer a right in the capital stock of the company, corresponding with the amount paid by him.
II. While these two statutory modes of subscription were apparently both in force, Jackson county, on the 12th day of September, 1853, subscribed $75,000 to the capital stock of defendant, without ordering an advisory election, referring for its authority to do so to the charter of defendant, as amended by act of December 25th, 1852. The- order for the subscription is silent as to the manner of payment, whether by money, bonds, or special taxation. The county court in 1856 levied a special tax supposed to be sufficient to pay the first one-third of the subscription, and in August, 1858, another tax to meet the second third. While matters so stood in this condition, the county court, on the 21st of December, 1858, ordered an election to be held on the second Monday of February, 1859, for the purpose of taking the sense of the taxpayers as to whether the county *643¡should subscribe $200,000 to the capital stock of defendant, to be paid by taxation in four annual instalments, the proceeds of said taxation to be anticipated by the issue of bonds at the option of defendant. The ■conditions of the subscription were declared and published in the order for the election, one of which was that three former subscriptions, one of $100,000 in 1850 by the county, one of $50,000 in 1853 by the city of Independence, and one of $75,000 in 1857 by Kansas City, should be released and canceled. Nothing had ever been paid upon these subscriptions, no steps having ever been taken to that end; and for these reasons they cannot-be considered in any other light than as inducements leading to the proposed subscription. In pursuance of this order, the advisory election was held and resulted in favor of the subscription.
No express reference appears in the order-or in the proposition voted upon to the charter of the company -or to the general railroad law, to indicate under which of them the county considered itself as acting. The ■omission of any such reference leaves the question to be ¡settled by judicial determination, and gives rise to the principal point in controversy in this case, the plaintiff ■contending that the subscription was made under the general railroad law, while the defendant Tna.iuta.ius that it was made under the charter of the company. On the 3rd of September, 1860, subscription was made by the agent of the county, in pursuance of the terms of the proposition carried at the election, and the conditions and terms so settled, were all formally accepted by the defendant in the contract of subscription. For the purpose of paying this subscription of $200,000 special taxes were levied in the years between 1861 and 1871, in■clusive, and anticipation bonds were issued to meet the instalment of the subscription, while the tax was being -collected.
III. Returning now to the subscription of $75,000, let us consider what was done towards its payment and *644discharge. It seems that on the 21st day of December, 1858, the same day on which the advisory election was ordered for the subscription of $200,000, the county court entered an order, authorizing the clerk to issue certificates of payment of railroad taxes to all persons who-had paid taxes, declaring in said order, that said certificates entitled the owners thereof to shares in the capital stock of the company, at the rate of one share to every one hundred dollars represented in certificates. This order was modified by subsequent orders in 1868 and 1869, confirming and continuing the taxpayer’s right to . stock by virtue of his tax certificates and removing all restriction against the company issuing certificates of stock in satisfaction thereof to the taxpayers in person.. Now at the date of this original order in 1858, no levy had been made or taxes collected except toward payment of the subscription of $75,000. The subscription of $200,000' was not effected till September 3, 1860, before which time the county had made levy, in 1859, to pay the remaining third of the subscription of $75,000. Consequently this order could, in its origin, have operated only upon the taxpayers discharging the subscription of-$75,000. It recognized in them the right to convert their tax receipts into stock, and as we have seen, there was no foundation for this right except in the general railroad law. It is evident that the order was made in pursuance of the railroad laws, and under the impression that such law, modifying the charter of defendant,, conferred upon taxpayers discharging subscriptions made professedly under the charter, the same rights to capital stock which they would be entitled to, if they had been made professedly under the general law. It is only upon tbis assumption any point or meaning can be attributed to the order. The county clerk, under this order, went on issuing tax certificates to persons paying the three levies-made to discharge the subscription of $75,000. Of these certificates the plaintiff holds a small number aggregating $377.19.
*645The railroad company, commencing in the fall of 1868, issued certificates of stock to a large number of taxpayers presenting these tax certificates; none were issued, however, to the holders of the plaintiff’s certificates. The taxes realized from the three levies not being sufficient to pay the whole subscription, the balance unpaid thereon remained till 1868, when the county, out of other funds, paid the same, amounting to $7,000. Immediately upon this payment the defendant issued to the county the full amount of stock called for in the subscription amounting to 750 shares. In the certificates so issued and delivered, the rights of taxpayers therein were ignored, and the county received them as belonging to itself in its corporate capacity. These shares were by ■execution sale, under a judgment against the county, taken from it, and vested in John Gr. Priest, on the 6 th of March, 1869, as recited in the answer. Whether the taxpayer of this subscription was entitled, by virtue of his payment, to an interest in the capital stock of defendant, depends upon the construction placed upon the provisions of the general law, as bearing upon and modifying the rights and privileges flowing from the defendant’s charter, and the acts amendatory thereof. It is unnecessary for us to decide the issue raised in respect to these tax certificates for the reason that the court held adversely to the plaintiff’s claim thereunder, and he has not seen fit to appeal from such judgment.
In passing I will only venture the remark that, while tire right given in defendant’s charter to counties and cities to subscribe and pay for its capital stock, may well be regarded as a valuable property privilege possessed by defendant, I do not conceive that it is a privilege exempt from any subsequent legislation which leaves it unimpaired as to its beneficial results to the company. If the charter gave the absolute ownership of the stock subscribed by the county to the county, in its municipal character, and the general law modifying the •charter gave it to the taxpayers eventually bearing the *646burden of tbe subscription, I am at a loss to perceive-how tbe supposed privilege or franchise of defendant is materially impaired by tbe change. Wbetber tbe stock subscribed for shall vest in tbe county in its corporate-capacity, or go to tbe taxpayers, as tbe beneficiary, is a matter of no consequence to tbe defendant. In either case tbe defendant parts with tbe same amount of stock for the subscription. No burdens are added, and no-contracts impaired, to its detriment. Tbe county might have some grounds of objection to tbe change, if it was. only a private corporation. Bufas an arm of tbe civil government, its rights and privileges are always subject to modification and changes for tbe public good.' Reference is here intended to tbe prospective operation of tbe general act, this court having decided that a subscription made anterior to its passage is not governed by its provisions. Ridings v. Hall, 48 Mo. 100" court="Mo." date_filed="1871-03-15" href="https://app.midpage.ai/document/ridings-v-hall-8003215?utm_source=webapp" opinion_id="8003215">48 Mo. 100.
IV. Tbe controlling question of tbe case, as already intimated, relates to tbe subscription of $200,000, and is,, wbetber said subscription was made under and in pursuance of tbe general railroad law, and thereby became subject to its provisions, in respect to tbe ownership of tbe stock subscribed for. Tbe provision of that law, as we have seen, gave such stock to tbe taxpayer to tbe extent of tbe special taxes paid by him towards satisfaction of tbe subscription. This, it seems to me,, is a question of fact to be determined from all the-evidence bearing upon tbe acts and conduct of tbe parties to tbe subscription. Tbe court below held that it was made under and in pursuance of tbe general law, and I am of tbe opinion that its finding is well supported' by tbe evidence. It seems to me that all tbe material and prominent features of tbe transaction lead to this conclusion.
The general law required an advisory election, as a condition precedent to the subscription, and an advisory election such as called for in tbe law, was held, in pursuance of an order of tbe county court. Tbe law made it *647the duty of the county to pay the subscription by issue of bonds or by taxation. It was determined by the advisory election and in the contract of subscription, that the subscription should be paid by taxation. That law authorized the issue of anticipation bonds to meet the instalments of the subscription, while the special tax was being collected. Such anticipation bonds were issued and were delivered to the company, for the use of the contractors as the construction of the road progressed. The cancellation of the subscriptions of Independence and Kansas City, and the undertaking of the company, as contained in the fifth clause of the proposition voted upon, not to accept any subscriptions from said cities by which they should be released from any part of the $200,000 subscription, derived their origin from the general law; for it is only by virtue of that law, that cities could claim exemption from the tax to pay county subscrip- ■ tions to the extent of the city subscriptions to the same road. Indeed the conduct of the parties to the contract of subscription in the issue of tax certificates convertible into stock to the holders thereof, when presented, indicates very plainly that they both considered themselves as acting under the general law.
The only apparent departure from the general act consists in making the anticipation bonds bear ten, instead of seven, per cent, interest. But this is an insignificant fact in its weight against the accumulation of evidence, pointing to the general law as the guide and authority of both parties'in the transaction. The objection that the vote taken at the advisory election was not in conformity with the general law is not well founded. The law does not prescribe any particular form of ballot. It requires that an election shall 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.” The ballots cast were headed “for the subscription,” or “against the subscription.” *648The propositions of subscription submitted to the taxpayers contained both the fact of subscription of $200,000 and the method of payment by taxation, with the privilege of anticipating the collection of the taxes by issue of bonds for that purpose, so that a vote “for the subscription” was necessarily a vote for the proposed method of payment, and must have been so understood by the voters. A taxpayer, opposed to either the fact of a subscription, or the proposed method of payment, indicated his action in the matter by voting the other ballot. Perhaps the ballot made use of was not the best which could have been employed to obtain a fair expression of the taxpayer’s judgment on the propositions submitted to him for decision; but this is a trifling consideration in determining the question as to whether the election was actually and substantially held in pursuance of the general law.
In the final order of the court making the subscription, it is recited that the advisory election had been “duly held,” and that it was by a large majority of the voters advised to make the subscription proposed in said election. The terms of the subscription are all recited in this order, a certified copy of which was furnished to the company; and the company thereupon filed its written acceptance of the subscription and conditions expressed in the order, thereby waiving any objection it might have to the regularity of the election. After having received the full amount of the subscription by means of taxation, which was borne by the taxpayers upon the faith of a regular election, held in pursuance of the general law, which gave them right to capital stock corresponding with the amounts paid by them respectively, it is too late for the company to object to the regularity of the advisory election and deny their claims for stock.
The anticipation bonds, mentioned in the general act, are not like those provided for in the absence of special taxation, and which were to go in absolute pay*649ment of the subscription. According to my understanding of them, they constituted only a'provisional payment ■of the subscription, which was not to be regarded as paid until they themselves were paid out of the special fund raised by taxation. To the extent of the bonds received by the company, it became interested in the special fund raised by taxation, which the county had no power to appropriate to any other purpose than payment of the subscription, by payment of the anticipation bonds. They did not constitute payment of the subscription any more than a person’s note constitutes a payment of his debt. They were accepted by the company on account of the subscription, and were furnished to the contractors as the road was built, but it does not appear that the company issued to the county any stock upon receipt of them. Its certificates of stock were not issued till after payment of the bonds by the taxes ■collected, and then only to the amount of the taxes paid into the special tax fund. Thus it appears that the subscription was paid by means of the special tax, because the provisional bonds taken by the company on account of it, were paid from the special tax fund.
V. Holding, as we must, that the subscription of §200,000 was made in pursuance of the general railroad law, and that the rights of all parties interested therein must be governed by the provisions of that law, I apprehend there can be no serious doubt about the taxpayer’s exclusive right to the stock due from the company under said subscription. It is true that the subscription stands in the name of the county; and that upon the county is enjoined the duty of making levies of taxation, collecting said taxes, and keeping them apart in a separate fund for the purpose of paying the subscription. Duties of trust and guardianship are imposed upon the county from the performance of which the taxpayer’s right to the stock finally emerges perfect and complete in the form of a tax certificate. The law provides that the county court “ shall cause to be issued and delivered to the *650person paying such special tax a certificate of the amounts thereof paid,” on which, when presented, “the company shall issue a certificate of stock to the person entitled thereto, or to his legal representatives.” After receipt of the tax certificate the taxpayer’s rights seem to be emancipated from the preceding trust and guardianship of the county, and he is enabled to deal with the company in his individual capacity. The duty of dealing with him in that capacity is imposed upon the company. The shares of stock due him by virtue of his tax certificate can be issued to no one else.
The plaintiff, as holder of tax certificates in the sum of $11,193.39, for taxes paid in discharge of the subscription of $200,000, has demanded the certificates of stock into which they are convertible by law. The defendant bus refused to honor this demand, and in excuse of its-action in so doing, contends that it ' has issued and delivered the full amount of stock due from it on account of said subscription. It is not pretended in the evidence that the shares called for in these tax certificates have ever been issued to the plaintiff or his assignor, or any one acting for them, or either of them. This fact of itself should end the controversy and authorize a judgment in his favor.
The embarassment which attends the attitude of defendant, I will briefly notice. It appears from the evidence that the company, commencing in the fall of' 1868, went on issuing certificates of stock to taxpayers, as their tax-certificates were presented. In doing so it issued shares of stock to taxpayers under both subscriptions indiscriminately. It seems that, in this manner, it 'issued certificates of stock upon tax certificates for the years 1856, 1858 and 1859, in the sum of $30,400. These shares so issued were necessarily in answer to the subscription of $75,000, for which alone the taxes for those years were collected. It issued to taxpayers certificates of stock in the sum of $169,600 in answer to certificates of tax payments of special taxes for years subsequent *651to 1859, and consequently in discharge of its obligation under the subscription of $200,000. This leaves a balance-of $30,400 of outstanding tax certificates under that subscription, -which have never been converted into stock, of which the plaintiff holds an amount presented by him in the sum of $11,193.39. It thus appears from the evidence that the company has parted with the full number of shares called for by the two subscriptions, viz: 750 shares and 2,000 (304-1,696) shares, a fact which it pleads in satisfaction of the demands under both subscriptions. But in making out the full amount of stock called for in both subscriptions, the company is compelled to count a double issue of 304 shares under the subscription of $75,000, viz: an issue of 750 shares-therefor to the county, which was taken on execution and never went to any taxpayers, and an issue of 304 shares to the taxpayers helping to discharge such subscription. Whether the shares subscribed for in that subscription belonged to the county or to the taxpayers discharging it, is a matter of no consequence to the plaintiff whose tax certificates relate to the other subscription of - $200,000. It is no defence against his demand, that the stock called for in his tax certificates-has been issued to any one else. The plaintiff had nothing to do with the mistake of this double issue of stock. It is the defendant’s mistake and cannot be maintained in satisfaction of the plaintiff’s demand.
In pursuance of these views the judgment should be affirmed.
Henry, C. J., Ray and Sherwood, JJV, and Geo. A. Madill, special judge, concur, Norton and Hough, JJ.,. not sitting, j