State ex rel. Circuit Attorney for Second Judicial Circuit v. Callaway County Court

| Mo. | Jan 15, 1873

Shepley, Special Judge,

delivered the opinion of the court.

This was a proceeding in the nature of an injunction brought by the State, through the circuit attorney oí the Second judicial district, against the County Court of Callaway county and the justices thereof, the Louisiana and Missouri Railroad Company and Thomas L. Price, to restrain the issuing and negotiation of certain bonds of Callaway county, issued and to be issued in payment of a subscription to the capital stock of the railway company made by the county, which subscription is alleged to be illegal and void.

The petition, after alleging the incorporation of the railroad company in 1859, and stating the line of the railroad, as authorized to be constructed by that charter, goes on to state the passage by the Legislature of the act of the 24th of March, 1868, alleged to be an act amendatory of the charter (the force and effect of which we have considered in the case of the State vs. Saline county, decided at the present term); that the amendment was duly accepted by the railroad company, “and became, and is to all intents, the charter of said company;” that by the amendatory act the railroad company is invested with the power to locate and construct a branch road, to be known as the South Branch, which was a new and independent enterprise, and that by that act subscriptions to the branch and main lines were to be kept separate, and that subscriptions to one cannot be used for the other; that the main line, as located, does not touch Callaway county, but the south branch runs through it. That in August, 1868, the County Court of Callaway county, without submitting the matter to the qualified voters of the county, made a subscription of $500,-. 000 to the “ South Branch of the Louisiana and Missouri River Railroad,” which was entered on the subscription book of the branch road. That the subscription so made was void. That in 1868 and 1869, the County Court ordered to be executed, and did execute and place in the hands of defendant, Price, for negotiation, $200,000 of the bonds, which were then in his hands, and he received them knowing that they were void. That in 1869 the County Court levied a tax in-the payment of these alleged illeged bonds and the interest thereon, and that such taxes were then in the hands of the Collector of the county for collection. That the County Court will, if suffered to go on, by this unlawful taxation, appropriate to the use of the railroad company in payment of said illegal bonds the greater part of the taxable property of the county, and that the State will be greatly hindered and prevented from collecting its revenues; that irreparable loss and damage will be inflicted upon the tax-payers of the county and State; and prays that the Circuit Court, in the exercise of its superintending control over the County Court, restrain that court and its Justices in their illegal acts; that the bonds issued be delivered up and cancelled; that the orders of the County Court imposing a tax be annulled, and the subscription to the South Branch be cancelled, and for other relief. Copies of the several orders of the County Court are made exhibits to and filed with the petition.

To the petition the defendants demurred, upon the ground that the suit was improperly brought in the name oí the State; that Price and the Justices of the County Court were not necessary or proper parties; that the County Court had a perfect right to do what they did; that the action of the County Court was ministerial, and the Circuit Court had no jurisdiction of the case either by prohibition or injunction; that if illegal neither the State nor any tax-payer could be injured; that by the showing of the petition the injuries, if any, are not irreparable, and there is an adequate remedy at law; that the allegation that by these acts the revenue of the State is endangered, is absurd on its face and impossible.

Upon the hearing the demurrer was sustained, and judgment was given for the defendants.

As will be seen, the subscription alleged to be ihvalid is made to the stock of the same railroad company, the charter of which and the alleged amendment thereto came up and was examined by the court in the case ofthe State of Missouri.ea; rel Circuit Attorney against Saline county and others, decided at the present term. Saline county is on the south side of the Missouri river, and the route of the railroad could not possibly pass through that county, as fixed by the original charter. Callaway county is on the north side of the river, and may fairly be assumed to be one of the counties through which the route of the railroad, as designated in the charter of 1859, might run.

The change of the route which was supposed to be affected by the amended act, was where in the twenty-first section of that act it gave said company the power to construct a road from Louisiana through or near Bowling Green to such point on the north or south bank ofthe Missouri river as the directors might select, and by the twenty-second section to construct such branch, to be called the South Branch, from the main line at a point not further east than Bowling Green to any point on the Missouri river between St. Aubert, in Osage county, and the city of BoonvilJe, in Cooper county.

It is stated in the petition that the main line, as fixed by the act of 1868 does not run through Callaway county, but that what is called the South Branch as fixed does, and that the subscription complained of was made to the South Branch.

Upon reference to the decision in the case of the State vs. Saline county, before referred to, it will be seen that it was there decided that the alleged amendatory act of 1868 was il legal and void, and, therefore, that the petition, in undertaking to state that that act is and was the charter of the company, is entirely in error.

The petition (the truth of which, as the judgment was on the demurrer, must be assumed) distinctly states that the subscription was to the South branch of the Missouri and Mississippi Eailroad, and was made in August 1868.

Apparently there is a violation of law in making the subscription. It is illegal as being made upon a branch road constructed and marked under the provisions of an act which we hold to be void, and we are not allowed in deciding this case to look into what are filed as exhibits with the petition, but are confined to the case as presented in the petition itself. As the case now stands, having in the case of the State vs. Saline County affirmed the jurisdiction it will have to be reversed; and as we have decided to remand it, it may be proper to say that if the exhibits show the true facts of the case, the county of Callaway had in January, 1867, and before this supposed amendatory act was passed, ordered a subscription to be made to the stock of the company, and by their proceedings of June 11th, 1868, it would appear that the subscription was made to the corporation, and for the construction of the line as it originally stood, but on that day the County Court, approving the acceptance of the amendment by the company, ordered that the commissioners “transfer the stock taken by said commissioners” in the “capital stock of the company to the branch books of said company.”

If there had been no change in the subscription, and no attempted amendment, and the company had constructed their line to the Missouri river substantially as they have done, it may be that the subscription would have been perfectly legal. • The facts are not before us so as to form any opinion upon the question or upon the effect of the subsequent action of the County Court or the railroad.

It is objected that the railroad company and Price are not proper parties to the proceedings.

The petition asks that the subscription to the stock books be cancelled, and the bonds be surrendered and cancelled. The subscription cannot be cancelled, as the stock books are in the hands of the company, except by making the railroad company a party to the proceeding.

It might be that the practical results would be the same if in a- suit against the county alone this transaction was declared to be illegal, but as the prayer is that the subscription may be cancelled, we cannot say that the railroad company is an unnecessary party. Nor can Price be considered an unnecessary party, as it is averred that the bonds alleged to be illegal are placed by the County Court in his hands for negotiation as the agent of the county.

The case is reversed and remanded.

Judge Wagner dissenting on the question of jurisdiction, and not concurring in holding that the act of 1868 is void. Judge Bliss concurs in the result.