67 Mo. 353 | Mo. | 1878
Lead Opinion
This suit was instituted in the circuit court of Lafayette county. The petition contains two counts, the first of which is founded upon a coupon or interest warrant of a county bond of defendant, issued to the Lexington & St. Louis Railroad Company; the second of which is founded upon a coupon of defendant’s bond for and on behalf of Sni-a-bar township, in said county, issued to the Lexington, Chillicothe & Gulf Railroad Company. It is alleged that the bond, a coupon of which; is declared upon the first count, was issued by virtue of an order of the county court, and an act of the General Assembly, approved December 9th, 1859, authorizing the county court of any county through which the Lexington & St. Louis Railroad might pass, to subscribe to its capital stock, and issue the bonds of the coun,ty in payment thereof and by virtue of an act amendatory thereof, and an act of March 24th, 1868, authorizing counties to fund their debts. It is further alleged that the bond, a coupon of which is declared upon in the second count, was issued to the Lexington, Chillicothe & Gulf Railroad, by virtue of an order of the county coui’t, and an act of the General Assembly,approved March 23rd,1868,entitled “An act to facilitate the construction of railroads in the State of Missouri” and authorized by a vote of two-third of the qualified voters
The defendant demurred to both counts of the petition : to the first on the ground that the acts referred to in the petition, did not confer authority on the county court to issue the bond or coupon; to the second,on the ground that the act of March 23rd, 1868, under the authority of which the coupons sued upon was issued, was unconstitutional and void. The court sustained the demurrer to the second couut, overruled it as to the first, and entered judgment accordingly, to which action both parties excepted and the cause is before us on writ of error.
The exception taken to the action of the trial court, In sustaining the demurrer to the second count of plaintrff’s petition, involves a determination of the validity of the act of March 23rd, 1868, under which the coupon in suit was issued. It is insisted that said act is violative of sections 13, 14 and 15, of the constitution of 1865, and before proceeding directly to the question presented, it may be useful to consider the state of the law at the time that instrument was framed and adopted in order to determine what was intended to be accomplished by the sections to which our attention has been called. Section 1, Art. 7 of the constitution of 1820, provided, “ that internal improvements should be forever encouraged by the government of the State,” andthe General Assembly had put this injunction into practical operation by loaning the credit and issuing the bonds of the State, to various railroad enterprises, whereby a debt of many millions of dollars had been contracted, the payment of which entailed heavy burdens on the people. There was, therefore, up to 1865, no limitation on the power of the Legislature to contract debts on the part of the State, for such purposes, but a positive injunction justifying the exercise of such power. Besides this, our statutes were filled with acts incorporating railroad companies, in the charters of which, counties, cities and towns were authorized to subscribe to their capital stock, and
The convention not only left out of the constitution prepared by it, and adopted by the people, the injunction contained in the constitution of 1820, that internal improvements should be forever encouraged in the State, but, on the contrary, positively forbade giving the aid or lending the credit of the State to any corporation in the future. This prohibition is contained in section 13, article 11, and is as follows : “ The credit of the State shall not
be given or loaned in aid of any person, association or corporation ; nor shall the State hereafter become a stockholder in any corporation or association, except for the purpose of securing loans, heretofore extended to certain railroad corporations by the State.” This section effectually cured the evil'of any further contracting of debts, in this respect, on the part of the State, which, anterior to that time, the Legislature had so freely indulged in. While the binding obligation of such debts, up to that time created, was fully recognized, and ample provision made for their payment, the making of any more such was wholly interdicted, and enterprises for the promotion of which these debts had been incurred, should be left (so far as the State was concerned) to be prosecuted in the future by private capital.
Having thus disposed of this matter, the evil arising from the facility with which county, city and town debts had been contracted, under legislative authorization, was
“ Constitutions are not designed for metaphysical or logical subtleties. They are instruments of a practical nature, designed for common use, and fitted for common understanding. The people must be supposed to read them with the help of common sense, and cannot permit in them any recondite meaning or extraordinary gloss.” Story Con. (§ 451.) Following this doctrine and applying the rule that words are to be understood in their usual and
It is urged that although the words “voting at such election,” may render the act obnoxious to the constitution, it should not, for that reason, be declared void, if, by striking out those words, the act would be made to conform to it. We do not concur in this view. It must, we think, be conceded that section 14 does not enforce itself, and that no county court could be invested with authority to issue bonds, except by a law enacted in conformity with its provisions. This the General Assembly attempted to do by the act of 1868, but failed to do, by prescribing a rule for the guidance and government of the court, unauthorized by the section, and such court could only act in conformity with the -authority conferred by the act. In the case of St. Jo. & Denver City R. R. Co. v. Buchanan County Court, 39 Mo. 485, it was held that the “ constitution, except when special provision is made for that purpose, does not enforce itself. It defines certain powers, but to make them operative, legislation is necessary.” In the case of Kirkbride v. Lafayette County, decided by Judge Dillon, at the November term. 1876, U. S. C. C., he uses the following language: “Without expressing any opinion whether there was a want of power to issue the bonds, on the ground that the railway company to which the 'subscription was made, and the bonds issued was not one whose line of'road was near to the township, or if it be not near to the township, whether under the recital in the bond, that fact would avail to defeat a recovery by a
It is also claimed that section 5 of the act of 1868 is void. It is as follows: “In all eases where a railroad, or branch railroad, in this State, shall be built, in whole or in part, by subscriptions to its stock, by counties, cities or townships, the proceeds of all State and county taxes levied upon such railroad company or branch so built, or the property thereof, shall be paid into the treasury of the counties where collected, and the county treasurers shall apportion the same, according to their several subscriptions, to such- counties, cities or townships so subscribing stock, until the whole amount of such subscription is refunded to them; and such sums so apportioned shall be applied to the payment of the interest and principal of the bonds issued by such county or city on account of their
This section would seem to be clearly obnoxious to both sections 13 and 14, article 11, of the constitution of 1865, in this, that to the extent that the revenue derivable from a tax on such road and its property, for county purposes is taken from the county treasury, and diverted to the payment of bonds issued for a township, every citizen of such county is made in effect, and in fact, to contribute that much more to the treasury of the county than they would otherwise have to pay, and thus a township subscription would be.converted into a county subscription, not upon the vote of two-thirds-of the qualified voters of the county, but on the vote of two-thirds of the voters of a township thereof. To give this provision effect would overthrow the very object of section .14, which was to prevent the citizens of a county from being taxed to pay a railroad subscription except upon the assent of two-thirds of the voters of such county. To the extent that section 5 withdraws the. State tax on such roads and applies it to the payment of a township subscription, every citizen of the State, in effect, and in fact, is required to pay a part of such subscription, when section 13 of the constitution declares, “ that the credit of the State shall not be given or
The 5th section of the act of 1868 is the compensatory section of the act, and may be said to sustain the same relation to the whole act that the consideration clause in a contract sustains to the whole contract. Under its provisions the people of the townships were led to suppose that in subscribing stock to a railroad, they could in no event become losers, as the tax provided for its payment in said section would not only discharge the debt, but ultimately secure to them in all time to come a school fund over and above that possessed by other townships. To declare this clause unconstitutional, and the 'remainder constitutional, would be like declaring the consideration clause of a contract void, and upholding the contract it was intended to support; and would, we think, be in disregard of the rule laid down in Oooley on Con. Lim., 178, “ that when a part of a statute is unconstitutional, that fact does not authorize the courts to "declare the remainder void, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed that the Legislature would have passed the one without the other.” The 5th section of this act being the part evidently intended to induce the subscription, the payment of which it provided for, we may reasonably presume that the General Assembly rvould never have passed the law with this section left out. Hence, as the provisions contained therein are connected in subject matter with the other provisions of the act, operate together, and are united in purpose, the whole act is contaminated with the vice of the 5th section and must fall with 'it.
Counties, cities, towns and townships, only when they were corporations, were the only classes of political subdivisions of the States upon which it had been adjudged the Legislatures had power to confer the rights to aid in the construction of railroads by subscribing to their capital stock, and paying therefor by the issuance of bonds and taxation. In other words, it had only been held, when the constitution of 1865 was framed, that unless a State constitution contained restrictions on the power of the Legislature, it might confer the right on counties, cities, towns and townships, when such townships had corporate existence, to become stockholders in railways and lend their aid to such enterprises. And as in this State, townships had no such corporate being, as the towns of New England States or the townships of .many of the Western States, but as before stated, were mere geographical sub-divisions of counties, and hence the members of the convention were not called upon, nor was it necessary that they should impose arestrietion on legislative power as to such townships, because it had not then been adjudicated, (although the courts had gone to extreme lengths on this subject,) that the Legislature of a State could confer the right to aid in the construction of a railroad on any mere geographical sub-division of the State, not rising to the dignity at least of a quasi corporation. While the decisions of courts of the highest character in three-fourths of the States have established, the right of a State Legislature, unless forbidden by organic law to exercise the extraordinary power of authorizing municipal corporations to impose taxes and contract debts for the purpose of constructing railways, the doctrine was, in most cases, dissented from by eminent judges, and has always met with much professional disap
While we concede that it has been established by the courts that railways are such public improvements as would authorize a delegation of the taxing power to municipal corporations, we do not concede that this principle has been so far extended as to justify a delegation of it to a township, a mere geographical sub-division of a county, and in no sense a corporation. If so, may not a majority of the citizens of a congressional township, which is a legal sub-division of a county, embracing 36 sections of land, or the citizens of a section of 640 acres, or a quarter section of 160 acres, be empowered to subscribe stock to a railway, issue bonds and levy a tax on such township, section or quarter section ? While we admit that the State, in the exercise of the right of eminent domain, may impose taxes and delegate through its Legislature the taxing power to its local municipal authorities for local improvements, and to be controlled by such authorities, we are unwilling to give it a wider scope than we think the adjudged cases allow, and extend its operation to mere territorial divisions of a county, the logical re^jlt of which would be, as above indicated.
It is claimed that since the adoption of the eonstitu-.. tion of 1865, this court, in the Linn county case, infra., and the case of State, to the use of Neal v. Saline County Court, has determined otherwise. We think an examination of the cases will show that the point was notin either
It is also urged that the bonds have been issued, placed on the market, and have passed into the hands of innocent purchasers, and should, therefore, be upheld. While bonds of the character involved in this suit have been put on the footing of commercial paper, we apprehend no well ' considered case can be found which asserts that a bond issued under a law absolutely null and void, will be enforced
The only other alleged error, as appears from the record, is the action of the court below in overruling the demurrer to the first count of the petition. It is claimed in support of the demurrer that the acts recited in the bond did not confer on the county court the authority to issue it. We think this position is not well taken, and without specially considering the objection referred to, in the brief of counsel, deem it sufficient to say that, under the act of 1.859, incorporating the Lexington & St. Louis Railroad Company, an act supplemental thereto, approved January 4th, 1860, and an act entitled “ an act to authorize counties, cities and towns to fund their respective indebtedness,” approved March 24th, 1868, the county court had full authority to issue the bonds in question, and that the demurrer was rightly overruled.
Perceiving no error, we affirm the judgment rendered
. Aeeirmed.
Dissenting Opinion
Dissenting. — "Whatever might have been the proper construction of the article in the constitution of 1865, in regard to township subscriptions and bonds, under the act of 1868, we have a legislative, judicial and popular construction of it, which, in my judgment, makes it no longer an open question. The Legislature gave an interpretation to the constitution by the act of 1868, the highest judicial tribunal in the State sanctioned that construction in the Linn county case; the convention of 1875, representing, as we assume, the will of the people, recognized this construction; and now this court is called on at the end of ten years from the passage of the act, and after the investment of millions of dollars in bonds issued on the faith of legislative, j udicial and popular interpretation, to declare the act void, and all the money invested in bonds authorized by it, to have been thrown away. I prefer to decline this responsibility. Had I been on the bench when the Linn county case was determined, and bonds were ordered to be issued, thereby affirming the constitutionality of the act of 1868, my opinion might have been otherwise than the one announced. As the opportunity did not offer, I can’t say, with propriety, what my opinion would have been — but I can say now, that whatever it might have been, I would never, subsequently to the action of the counties in conformity to the opinion of the court and the investment of capitalists in the bonds issued, undertake to set up my individual opinion in opposition to the declared sanction of the court. The matter was res adjudieata so far as bondholders, who. invested . on. theofjt, were QAnqerne'N
I, therefore, dissent, in toto, from the decision.