69 Mo. 150 | Mo. | 1878
The Missouri, Iowa & Nebraska Railroad Company were certainly not entitled to the bonds 0f Scotland county, unless upon compliance with the terms and conditions imposed in the order of subscription to the capital stock of the company. v. 64 Mo. 30. There was' no such compliance. This the demurrer to the petition of plaintiffs, who are residents and tax-payers of Scotland county, admits. The route was changed, and the consideration for the subscription and the bonds therefore failed. In the Daviess County case, supra, we held the county court justices absolved from any duty to issue bonds when the conditions of the subscription had. not been complied with, and' by parity of reasoning they should be restrained from issuing bonds when such issuance would be without authority, in consequence of a failure on the part of the company to comply with the contract; the only right to the bonds was based on com
The Missouri, Iowa & Nebraska Railroad Company never had any existence until 1870; after which the sub-scription was made. That company was the result of an alleged consolidation of other companies, one of which being chartered in 1857, had the privilege of having subscriptions made without a vote first taken. This privilege, however, never became a vested right in that company, thus chartered, because a subscription was neither made to, nor accepted by, such company. St. Jo. & D. C. R. R. Co. v. Buchanan Co. Ct., 89 Mo. 485; Aspinwall v. Commissioners of Daviess Co., 22 How. 364; Nugent v. Supervisors, 19 Wall. 241. If the subscription to, and its acceptance by, the company authorized to receive it, had occurred anterior to. consolidation; occurred ata time when the county court could lawfully make such subscription ; and then consolidation had taken place between the company thus clothed with a vested and subsisting right, a widely different question would have been presented for our consideration; as it is, there being no vested
Affirmed.