106 Mo. 557 | Mo. | 1891
The plaintiff railroad company commenced this proceeding on August 5, 1885, to condemn property for a right of way. The circuit judge by a vacation order appointed viewers to assess damages, no notice of the application having been given. The viewers, however, gave defendant notice of the time
1. Under the provisions of the plaintiff’s charter and the special acts therein referred to and made a part thereof, notice to the property-owner of the intended application to the judge for the appointment of viewers-is not required. The charter, however, does require the viewers to give the land-owner notice of the time when they will view the property and assess the damages. This notice was duly given, and the notice thus given is sufficient.
2. Most of the other objections made by the defendant resolve themselves into these propositions: First. that plaintiff has no corporate capacity, second, if it has, then it has no power to condemn property for a right of way.
To understand these objections it is necessary to refer to some of the provisions of the plaintiff’s charter and the act amendatory thereof. The act of January 22, 1857, provides : “ Sec. 1. A company is hereby incorporated, called the ‘ St. Joseph & Iowa Railroad Company,’ and by the same title the stockholders shall be in perpetual succession, with a capital stock of $2,000,000, which may be increased to the sum of' $5,000,000, if deemed necessary, the same to be divided into shares of $100 each, etc.
“ Sec. 2. John Corby” and other designated persons or any nine of them “shall constitute the first-board of directors under the provisions of this act, and shall hold their offices until their successors shall be qualified. . They shall meet at such times and places as shall be designated by any three of them, and organize.
“Sec. 4. The company shall commence the construction of said road within eight years and shall complete the same within sixteen years thereafter.”
The following are the material portions of the act of March 19, 1866 : “Whereas, the board of directors of the St. Joseph & Iowa Railway Company, organized as provided by the charter of said company, opened books for subscription to the capital stock of said company, made surveys for said road and commenced the transaction of its business, but were prevented (the rebellion intervening) from completing said road as required by the terms of said charter; and whereas, the majority of said board of directors having failed to take the oath of loyalty, as required by the constitution and laws of the state of Missouri, therefore, t'o secure the completion of said road. * * *
“Sec. 1. The charter of the St. Joseph & Iowa Railroad Company, approved January 22, 1857, be and the same is hereby amended as follows : That John Severance, Francis Rodman, * * * shall constitute the board of directors of said company ; they shall hold their offices until their successors are qualified, and they shall determine by by-laws what number of directors shall constitute a quorum. The rights, privileges and immunities that belong to or are vested in the board of directors by virtue of the act to which this act is amendatory, not inconsistent with this act, together with the property rights and credits of said corporation created by said act, shall be vested in and shall belong to the board herein named and their successors in office, and they shall have full power to hold the books and papers
The evidence of a witness introduced by defendant shows that, in 1871, the company had made a surrey and done some work in Buchanan county and had portions of its road in operation in other counties. This witness became a member of the board of directors in 1878, and says he had no personal knowledge of any organization of the company prior to the act of 1860, and did not know of any outstanding stock issued prior to the date of the amendatory act.
The corporate existence of the plaintiff is an issue which may be made in a proceeding to condemn property ; for if the plaintiff has no corporate capacity it has no right to prosecute this suit. City of Hopkins v. Railroad, 79 Mo. 100; Matter of Railroad, 72 N. Y. 245. Where the act of incorporation does not in and of itself confer corporate capacity, but provides for the doing of certain things, upon the doing of which the company shall become a body corporate, the performance of these things constitutes conditions precedent, and.until performed the company has no corporate existence. Granby Mining Co. v. Richards, 95 Mo. 110; Hammett v. Railroad, 20 Ark. 204; Lyons v. Railroad, 32 Md. 18. If, however, the charter confers corporate capacity without any conditions precedent, acceptance of the charter is all that need be shown. In such cases the act of incorporation brings the corporate body into existence. The act of January 22, 1857, declares that there is hereby incorporated a company called the St. Joseph & Iowa Railroad Company with a
Now, so far as acceptance of the charter is concerned, it is to be observed that the charter prescribes no mode or time of acceptance. Under these circumstances, proof that the act was passed at the request of the designated directors would show a sufficient acceptance. No mode of acceptance being designated, acceptance may be inferred from use of corporate powers under the charter. Hope Mut. Fire Ins. Co. v. Beckmann, 47 Mo. 93; 1 Morawetz on Pri. Corp., sec. 23; 1 Wood, Railway Law, sec. 10. The evidence shows that plaintiff had constructed and in operation part of its road in 1871, and this is sufficient evidence of the acceptance of the charter, and that, too, without any regard to the act of 1866.
3. This act of March 19, 1866, becomes important in view of the fact that this proceeding was not commenced within the time limited for the completion of the road by the original act, and the validity of the act of 1866 is assailed by plaintiff on the ground that it violates section 2 of article 8 of the constitution of 1865, which provides : . “ No law shall be passed, reviving or re-enacting any act heretofore passed, creating any private corporation, where such corporation shall
The act of 1866 professes to be and is amendatory in several respects. But the claim of the defendant seems to be that it is also in substance and effect a reviving act. The above constitutional provision is not absolute, that is to say, it does prohibit the legislature from enacting laws reviving prior acts creating private corporations in all cases. The power to enact such laws remains in the legislature, except in the specified cases. Now the act in question does not on its face show that it comes within the prohibited cases. On its face it is a valid law. The principle of law is too well settled to call forth citation of authorities,' that an act of the legislature will be presumed to be constitutional until its unconstitutionality is made to appear. Thére is nothing in this record to show that this act falls within the prohibited cases. In the first place the prohibition against reviving charters implies that the charter to be revived is lifeless. On this record the company was an existing one with perpetual succession at the date of the alleged reviving act, Again, there is nothing to show that the company was not organized and did not commence business within the time specified in the above section of the constitution. Assuming that the act of 1866 can be called a reviving law, still it is valid on its face, and the presumption of its validity must prevail, for there is nothing shown to disclose its invalidity.
The plaintiff corporation contends that the facts set forth in the preamble could not be contradicted for the purpose of showing the unconstitutionality of the act, but upon this question we express no opinion. With or without the preamble the act is prima facie
4. While the constitution of 1865 prohibited the creation of private corporations by special laws, and contained other restrictions against special legislation, still it was held by this court that the legislature could, by a special act, amend special charters previously enacted. State ex rel. Circuit Attorney v. Railroad, 48 Mo. 468. The act of 1866 is, therefore, valid as an amendment of the act of 1857. As this proceeding was commenced within the time limited for the construction of the road by the amending act, the contention that the company had no power to condemn property for a right of way when this suit was commenced must be,' and is, overruled.
5. As the duty of building fences and constructing gates and farm crossings is by statute devolved upon the railroad company, the cost of such structures is not an element of damage in favor of the land-owner ; and the court committed no error in so instructing the jury. Railroad v. Baker, 102 Mo. 554. The inconvenience in going from one to another part of the farm, arising from the road, fences and gates, is, of course, a proper element of damages. The instructions given, instead of excluding this element, required the jury to consider all such matters in fixing the amount of damages.
6. This brings us to the consideration of the single objection presented by the plaintiff’s appeal, and that is this, that the court erred in calling a jury to reassess the compensation to be paid by the railroad company. According to the plaintiff’s charter it is the duty of the judge, if objections to the reviewers’ report are sustained, to “order a review by three other reviewers, who shall proceed in the same manner as is hereinbefore provided.” The charter, as has been said, was enacted in 1857. Section 4 of article 12 of the constitution of 1875 ordains that “the right of trial by jury shall be held inviolate in all trials of claims for compensation,”
The railroad company insists that the words, " shall be held inviolate,” show an intention to preserve a jury trial in those cases, and those only where one was provided for at the time the constitution was adopted; and, further, that the general language of said section 4 of article 12 does not repeal special laws.
The amendment of 1873 (Acts of 1873, p. 24) to the general law allowed a jury trial to either party when the report of the commissioners should be set aside for good cause shown. It was only in the event that the report should be set aside for cause that the parties were entitled to a jury. By the constitution either party is entitled to a jury as a matter of right. This we have held in the case of Chicago & Santa Fe Ry. Co. v. Miller, ante, p. 458. This being so, it is clear that the constitution does more than guarantee their existing statutory rights.
The remaining question is, whether the section of the constitution and the repealing clause of the schedule repeal these existing special charter provisions which provide for a reassessment of damages by viewers or commissioners. It is a rule often asserted and applied that a mere general affirmative statute does not repeal a former special one, unless negative words are used, or unless the two acts are irreconcilably inconsistent. Manker v. Faulhaber, 94 Mo. 430, and cases cited. But to accomplish a repeal it is not necessary that, the subsequent general law use express words of repeal. Any form of expression showing a clear intention to repeal former special laws will be sufficient.