State ex rel. Quincy, Missouri & Pacific Railway Co. v. Harris, 96 Mo. 29

State ex rel. Quincy, Missouri & Pacific Railway Co. v. Harris

96 Mo. 29 | Mo. | 1888

Noeton, C. J.

This is a proceeding by mandamus to compel the judges of the county court of Sullivan county to issue eighty thousand dollars of bonds to The ■Quincy, Missouri & Pacific Railroad Company, upon the trial of which judgment was rendered for defendants, from which plaintiff has prosecuted a writ of •error.

The record discloses the following facts: That The *35Quincy, Missouri & Pacific Railroad Company was, on the twenty-ninth day of June, 1869, duly incorporated under the laws of this state for the purpose of building and operating a railroad from West Quincy, on the Mississippi river, in Marion county, to a point on the Missouri river in Atchison county, Missouri, opposite the city of Brownsville, Nebraska ; that on the twenty-second day of December, 1869, the county court of Sullivan county made an order that an election be held at the usual voting-places in said county on the twenty-second of February, 1870, for the purpose of ascertaining whether two-thirds of the qualified voters of said county of Sullivan would assent to a subscription of tuvo hundred thousand dollars to the capital stock of said company subject to certain conditions, among which are the following: Said railroad to be located and constructed through said Sullivan county from east to west on a line as near through the center of said •county as practicable ; said subscription to be paid to said company * * * in the bonds of the county at par, * * * and that whenever said railroad company shall have surveyed and permanently located said road continuously through the state of Missouri from West Quincy, in Marion county, * * * to some point on the Missouri river opposite or near Brownsville, in the state of Nebraska, and should have continuously .graded, bridged and tied six miles of said railroad within Sullivan county upon the line * * * designated, then said county of Sullivan, by its county court, would issue and deliver to * * * said railroad company its bonds in payment of such subscription to the amount of forty thousand dollars, and for each additional section of six miles so continuously graded, bridged and tied within said county of Sullivan, said county would issue and deliver to the company an additional sum of forty thousand dollars in the bonds of ■said county as aforesaid till the whole subscription of two hundred thousand dollars should be paid.

*36It further appears that in pursuance of law, a special registration of the qualified voters of said county who had become such since the last general registration and subsequent special registrations of the qualified voters of said county made prior thereto, was had and held in the various municipal townships of said county prior to the holding of such special election; that, at said special election, according to the official canvass thereof, ten hundred and forty-nine votes were cast in favor of the proposed subscription and two hundred and fifty-seven votes against it; that the county court of said county, on the day after said election, viz., on February 23, 1870, made an order that, as ten hundred and forty-nine voters of the county had voted for the subscription and only two hundred and fifty-seven against it, therefore the proposition to subscribe for two hundred thousand dollars of the stock of said railroad company had carried; and afterwards, ; in pursuance of an order of said court, the ex-officio president thereof made a formal entry of such subscription on the books of the company.

On the trial, defendants offered in evidence the registration books of Sullivan county made in 1868 for the general election of that year and for a special election in 1869, and the special election held on February 22, 1870; these books were identified by James Morris, clerk of the county court of said county, and F. E. Stone, one of the registration officers, testified as follows: “I have recently examined the registration books identified by Mr. Morris; they are the books used for the general election in 1868, and at the special elections in 1869 and 1870 ; they were prepared and arranged for use by W. B. Taylor, W. H. Custer and myself (the then registration officers): the thirteen books now shown me were used at the special election held February 22,1870 ; Mr. Custer made certified copies of the special registration of voters for the use of the *37judges of the election as soon as such registration was completed.”

The registration books were then offered in evidence, to which objection was made, which, being overruled, thereupon the defendants began to read from the registration book of Polk township, in said county, used at the special election February 22, 1870, but before completing the reading thereof, counsel for relator conceded that the registration books offered in evidence, counting all those registered for the general election of 1868, and those added in 1869, and those added for special election February 22, 1870, contained the names of nineteen hundred and forty persons as qualified to vote in said county at said election, and that said names were placed upon said books by the aforesaid registration officers and their predecessors in office for use in the general election of 1868, the special election of 1869, and the special election held February 22, 1870.

The controlling question arising on the record is as to the propriety of the action of the trial court in' admitting in evidence the said registration books. ' The objection to their admission was based mainly on the ground that after the election of February 22, 1870, the county court held that two-thirds of the qualified voters voting at said election had voted in favor of the subscription and directed the subscription to be made, which was thereafter made.

It is established law in this state that county courts are only the agents of the county, with no powers except what are granted, defined and limited by law, and like all other agents they must pursue their authority and act within the scope of their powers. Wolcott v. Lawrence County, 26 Mo. 272 ; Book v. Earl, 87 Mo. 246; Sturgeon v. Hampton, 88 Mo. 203.

The power of the county court to subscribe to the stock of a railroad company was made by the constitution of 1865, and section 17, page 338, General Statutes, 1865, to depend upon the fact that two-thirds of the *38qualified • voters of the county, at a regular or special' election held therein, should assent thereto. In the case of State ex rel. v. Brassfield, 67 Mo. 331, this statutory provision and the provision of the constitution of 1865, which gave origin to the statute, for the first time came • before this court for -construction, and it is there dis-tinctly held that under these provisions the fact that a majority of voters, voting at an election held for the purpose of determining whether or not a subscription should be made to the stock of a railroad company, voted in favor of the subscription, was not sufficient to confer upon the county court the power to subscribe, but that in order to the exercise of the power it must appear that two-thirds of the qualified voters assented, to the subscription by voting in favor of it, and that the mere inaction of such voters by failing to vote did not express such assent within the meaning of section fourteen, article two, of the constitution of 1865. So it was also held in the cases of Webb v. Lafayette County, 67 Mo. 353 ; Ranney v. Bader, 67 Mo. 476; State ex rel. v. Walker, 85 Mo. 41.

It is also held in the cases of State ex rel. v. Brassfield, supra, and Ranney v. Bader, supra, that the registration books may be properly received in evidence for the purpose of establishing the number of qualified voters in the determination of the question • whether or not at the election two-thirds of the qualified voters as ascertained by the registration assented to the subscription by voting for it.

Taking in this case the admission that the registration books offered in evidence contained the names of nineteen hundred and forty persons as qualified to vote in said county at said election, it is evident that two-thirds of the qualified voters of the county of Sullivan did not assent to said subscription, as only ten hundred and forty-nine of said voters voted in favor of the subscription. Besides this, while there was evidence tending to *39show that the railroad company has^ complied with the conditions of the subscription, there was also evidence to show that it had not complied, and the trial court might on this ground have well denied the relief asked.

The judgment, for the reasons given, is hereby affirmed

with the concurrence of Brace and Sherwood, JJ. : Black, J., concurring in the result, and Ray, J. absent.