*1 County of Cass County of Cass v. Johnston. “ Assembly Missouri, provisions An 1. The of the act of General of entitled Missouri,” ap- of Act to facilitate construction railroads the State of “ 23, 1868, Act,” proved Township commonly March as the Aid known companies by capital railway which authorize a stock of duly by township, appears, of an called whenever it the returns election “ qualified purpose, than two-thirds voters for that that not less .of subscription,” are not township at are in such election favor of (cid:127) State, adopted repugnant of of that to sect. art. the Constitution Assembly shall not authorize which ordains that the General to, in, city, county, town or to loan its credit or to become stockholder association, corporation, any company, or unless two-thirds town, county regular at to be held of such or or i therein, assent thereto. herewith, S. is over- 2. Harshman v. Bates 92 U. sofar as conflicts ruled.
n 8.All pub- from an election held on themselves who absent expressed given presumed will of the duly to assent to the notice are lic providing majority'of voting, election-other- those the law unless declares. wise validity objection bonds issued under that act It is an not to the company, capital which the was stock of incorporated on behalf court place. day when took until the the election properly judgment rendered this suit 5. On the bonds enforced, necessary, by county, if against manda- the court below thereof, levy judges compel- or the against mus provisions of tax in act. of a with collection accordance States to tbe Circuit Court the United Error District Missouri. Western 3,1874, Iowa, this action Johnston, a citizen of brought Sept. “ Cass, Branch Town- trustee for Camp County Missouri,” to recover the amount in said
ship al- to bonds whereof he attached overdue* of certain coupons holder. A of one of the copy he was the lawful leged — thereto is as follows: of a annexed bonds and coupon ' America, oe United States
“ State Missouri.' County Bond.
“Cass ten cent annum. Interest per per No. [$500. 58.] Cass, in the- men these presents, all Know itself Missouri, firmly acknowledges indebted the State n Oct.1877.] .County v. Johnston. Missouri Company, Fó Railroad to the St. Louis Santa
bound Cass, $500, division, in which the said county the sum received, for value Branch Township, hereby account of Camp bearer, banking-house company, promises *2 York, York, and of New Chick, New State & the of in Northrup after, at the from the date hereof date, with interest thereon ten years eleventh on the annum, semiannually of ten per per payable rate cent and deliv- of the year, of on January July presentation days and each city in of Chick, of said Northrup at ery banking-house said New. & York, York, hereto attached. of coupons State .of interest New “ court of county to an order pursuant is bond issued This of an act of the General Cass, by authority of made County of said ‘ Missouri, An Act to facilitate of of Assembly entitled State Missouri,’ and approved in the of of railroads State construction March, and of authorized twenty-third a.b. said township. of voters of of more than vote two-thirds “ whereof, has executed Cass County testimony said' of In court of said county, the county this bond justice presiding hereto, and court, name his order of' said signing under the same thereof, and court, order attesting said clerk of court, hereto seal affixing said “ court, the clerk of this at the done This' office eleventh da.v of July, a.d. 1870. Stevenson, Jehiel C. [sear.] “ Court Mo. Justice Presiding Cass County County,
“ H.C. Dore, “ Mo.” Cass Court Clerk County, County “ 11,1870. July Harrisonviule, Cass “ $25 on the sum promises The of Cass County No. on bond interest for being of January, eleventh day Chiek, in- the $500, of Northrup. at the payable banking-house & York, of New York. of New city H. “d. Dore, Mo.”
“ Clerk the County Count °f “as known The in the bond generally act referred third, first, second,' fifth sections and Aid Act.” Township — as follows: are and resi- persons, tax-payers 1. twenty-five Whenever Section in
dents, any purposes,' in any municipal township, of such .State, county county, shall the. petition eounty desire, to subscribe to capital township, forth their setting 3G2 Cass v. Johnston. State,
stock company building proposing into, to build a railroad or near such and through, township, stating the amount of such and subscription, terms conditions made, which such be desire shall it shall they be county court, thereafter, duty soon as bemay to order an election to be in such if determine such township, subscrip- conducted, made; shall tion which election shall and returns with, accordance law controlling general elections; if it shall from the appear, of such returns that not than less two-thirds of the qualified voters such town- ship such election are in favor of such subscription, shall be the court to make duty such behalf of such terms conditions according thereof, and if such conditions the issue provide bonds pay- ment of bonds, such court shall issue subscription, attached, name of with for interest but coupons rate of interest shall not exceed per annum; ten cent per the same be delivered to the railroad company. order, meet the on account of the sub- payments Sect. *3 stock, terms, tojts scription to the or to the according pay interest and on which be bond issued on principal any account of such may shall, time, the from time to subscription, county and levy collected, as taxes, be the same manner county cause to a special tax, real which be levied all the estate shall within lying the the in accordance with the making subscription, valuation township the assessor county then last by county purposes. “ be 3. The treasurer shall authorized and county required Sect. collect, sheriff receive and to income from section, tax and to provided previous apply the same terms, of the stock to its payment subscription according or to bonds, of interest payments and.principal should-any be he in' of such all subscription; shall payment issued interest on bonds, out collected for any money treasury such this pur- levied, due, as the so same tax becomes and by also the pose, mature, shall be-cancelled court; as which they by county bonds shall be considered a of his part duty this-service county and treasurer.” hereafter, or all cases where branch rail- In Sect. built, in or in be whole part, by in this shall subscriptions State road -cities, counties, or of all stock, townships, proceeds by to taxes, or railroad-company such branch and levied county the treasury shall into built, paid or the property so thereof Oct. 1877.]- v. collected; shall ap- counties and treasurers county where several to such to their same, according subscriptions,
portion stock, counties, cities, until the whole or townships subscribing so sums them; to such of such is refunded amount treasurer, or county city shall be paid so over apportioned principal to thé of the interest payment and applied their subscription issued or on account of county city bonds them aforesaid, and, not, if are if it shall by any outstanding, stock fund or the credit of the school in' such county, city, placed township.”
n here not affect sections do any remaining effect,'and take when'the shall involved. declare act. certificates into for granting tax-payers provide convertible stock. railway 4, 1865; took
The Constitution Missouri effect July — art. is as follows: sect. or The General shall not authorize Assembly any county, city, to, in, or loan its' credit com- to become
town stockholder association, or unless two-thirds of corporation, pany, town, of such or county, city, or special regular therein, be held thereto.” assent sect. 2 of Missouri so amended legislature of 1868 make therein Aid Act as to the tax Township provided a tax the real estate and all within personal property answered, that said bonds were issued township. county of a in behalf payment pretended of said Branch to the St. Louis Santa Fé Camp Township, act of Railroad March Company, authority 1868, and to the date of them the had no prior township in said or subscribe for stock issue bonds authority company therefor, court; for it to have the same done *4 20, 1869, to said had not been prior April company organ- - ized, said town- that on March voters of twenty-five filed a forth desire said to ship petition, setting township to the stock of the St. Louis and capital subscribe.-dollars to Railroad build to proposed organized, Company, Santa-Fé a railroad said said township, through paid 'in bonds be issued said court for and on account by county that on an court ordered election township; Gt. v. 20, 1869; that on be held on April April in said township 20, 1869, were filed office of articles incorporation the. law, and said com- of state as provided by thereby secretary that at the election in said State became incorporated; pany did two-thirds of the qualified township held so more than in favor of the. not Vote subscription, although two- election; such and that reason of of them voted at thirds by were null and void. said bonds premises answer; and, the demurrer. demurred to The plaintiff sustained, that the was rendered plain- been judgment having said said trustee for township,” tiff recover .county, with, costs, and interest thereon and amount of said coupons, and from taxes levied the same out do that said township.” taxable property sued, out writ of error. The thereupon and Mr. John Mr. P. Hall Willard The case was argued error, and Mr. B. Hender John C. Gage plaintiff in error. son defendant submitted the in error following propositions:
The plaintiff under which the bonds Aid Act The 1. Township to the of Missouri Constitution in suit were repugnant issued^ pf a municipal subscription capital 1865. It authorizes if two-thirds railroad companies, stock favor of are in an provisions election the assent of two-thirds it, requires Constitution whereas valid. voters to render of all notice of recitals objection appears Sufficient Winkelmeier, v. State holder inquiry. put bonds 391; .v, 103; v. Sutterfield, 35 Mo. Harshman County, 92 U. S. Bates 569. bonds issued record payment
2. shows were stock of capital subscription, which, when the tax-payers company had existence take an the sense election people petitioned when subscription, are, invalid, therefore, even in the hands of an ordered. al., et holder. Bubey Mo. innocent Shain v, Framldin, 5 (N. Y.) Lans. People are to all intents and bonds purposes township, 3. The *5 365 Oct. 1877.] v. Johnston.- of Cass to incurred no bonds. has liability The county county, fund, from derived to be out of a are special them. paid the real and township. a tax personal property within A court. man- of that tax is imposed levy is requisite, levy appropriate damus compel action them bond-holder. An exclusive remedy lie rendered will not judgment Linn casé The State v. County, this is erroneous. evidently v. Justices 475.' Bollinger. 44 Mo. County, Mr. Chief delivered the opinio Justice Waite n court. our
The first determination in presented is, Aid Missouri re- whether Act”-of is case “Township 11, State,' sect. of that art. of the Constitution pugnant to thd inasmuch it authorizes townships subscriptions by two-thirds- of stock of whenever companies capital 'of the an election called at qualified township, voting shall vote in favor while for that of the subscription, purpose, “unless two- Constitution prohibits subscription, town, voters of the . . . at a thirds regular therein, election to be assent thereto.” In Harshman v. Bates U. S. we incidentally unconstitutional; then the act to be but the decided point spe thisi. constitu cially controversy applicability It was tional prohibition organizations. township impliedly if the did Constitution ^hat, conceded upon argument apply, sustained; could not be and we the law concession accepted however, Now, the law Missouri. as truly stating ques whether the Consti provisions tion presented, directly are not same. the statute On tution substantially hand, it one. is contended that the Constitution requires the. the, vote of voters of the town actual two-thirds and, other, in favor of the on the- that the subscription; ship assent, is obtained if two-thirds' those of, requisite to that effect. election shall vote prescribed has often been called Court Missouri Supreme statute, effect -this has never construe and in a to' give instance doubt as first expressed single validity. Th§ County op Cass v. case was that of The State v. Linn 44 Mo. decided after the law was That was an year passed. ap a, for mandamus to court to issue plication compel *6 bonds a to a vote under the upon subscription pursuant ; 11, law and it was contended that the act was to art. repugnant 14, Constitution,-because sect. the bonds to be issued were the bonds of the and not of the township, assent; voters of the had not their but the court given held that were the bonds of the and they granted writ. Baeder, this are the cases v. of 50 Following Ranney Pen, 600; Mo. v. 63, 1872; 51 McPike id. in State v. decided 479; Shain, 207, 51 id. v. Cunningham, 54 id. decided Rubey 1873; in 70, 1874; State v. Bates id. 57 decided in State Clarkson, 59 id. decided in State v. Daviess id. 31; 64 and State v. id. decided Cooper County, —1876, in all of which the act some form was brought consideration, and in no one was there a of suggestion either court or counsel. unconstitutionality by is
It true that the now made to the law was in no objection considered; case but this is presented sufficiently explained the fact that' in other cases a construction adverse to such a had been similar to that position given em in the constitutional ployed State v. prohibition. Winkel meier, decided in to the just previous adoption Constitution, under a law which empowered .the city St; of authorities Louis to for the grant permission opening of establishments for of the sale refreshments on ” “ week, whenever a the' voters of the majority legal city so, authorized them to that do was held there must be a of the voters in the election majority participating at which taken, the vote was and not a of those merely majority that who particular question.- judge delivered the “ did, indeed, act opinion say, of. expressly requires voters; is, a that all the legal majority legal of the- and of all those who at a merely particular time choose But this must to vote question.” read in follows, with where it is connection what said that it appeared that than thirteen thousand voters more that participated ' five thousand and that only thirty-five persons Oct. 1877.] v. Johnston. . . . and two in favor
voted city authority, giving . . It evident it. thousand one voted . persons is not thousand the vote five thousand out thirteen that whole, a it is vote of opinion Taking majority.” that resort was intention deciding there apparent the records of must be had elsewhere than to taken ascertain' whether which the requisite vote be, But, had however may been obtained. same court in 1866 a similar presented . . it was St id. 270 There State v. Mayor pro Joseph, all should cause council of St. vided Joseph mayor to be “to create debt money,” borrowing propositions submitted vote city,” cases it “two-thirds of in all such should require A borrow voters to sanction the same.” proposition streets was submitted to a-vote improvement money and resulted at an election called for of the voters purpose, *7 declined in favor the in a measure. mayor majority “he doubt whether because was.in signing necessary.bonds, two-thirds the votes was be-determined of all the matter by the; of all the voters or two-thirds special polled ip not.” whether or resident absolutely, There and to suit instituted to settle was question, compel mandamus, issue the In bonds. giving mayor, by decision, the said: think was sufficient that two- “We voted at the of all the voters who elec thirds special tion, .that authorized- express purpose determining in favor on notice voted given, public duly question, This was mode law for ascertain provided by proposition. sense of the voters of the that city upon ing weuld There other practicable appear way question. could the' matter be determined.” The writ of man in which r (cid:127) issued. The was same damus accordingly yea question Binder, v. id. that in State In case the came again up Louis, arose under the refreshment act which was St. point v. considered in Winkelmeier. It appeared State at a permission question given grant authority out election called and that of a vote purpose, thousand and five thousand and of seven eighty-five, fifty-one Ct; 36$ Joíinston. v. were in favor of the and two thousand and grant, thirty-four . it. The cases of State v. State v. St. Winkelmeier to; and, were both after referred from the Joseph quoting opinion case, in the latter it was think the made here said“We case decision, comes within the of that reasoning principles kind, that an election of this authorized for the namely, very on notice purpose determining question, public duly Was the mode as well given, contemplated by legislature, law, as the sense of the ascertaining legal submitted, and that there could not well be question other in which such a could be practicable way .matter made, had had determined.” decisions all been These never the act of now under con when questioned, been force,, sideration, evidence were also passed. They State, when the bonds in law. were controversy issued; and, advised, so far as we are there has been no disposi tion since courts of the State to part the. modify them. v. id. was as Sutterfield, ; the' construction of another clause the Constitution the decision was of a difference ground placed expressly between'the two That-court has in the strongest provisions. intimated its to interfere with its unwillingness pre been vious when has adjudications acquired property money invested Smith v. Clark State v. them. Sutterfield, supra.
In St. this court Wall. Rogers, Joseph Township same construction “a phrase, majority gave the to.the used in an Illinois legal township,” municipal statute; Clifford, and Mr. aid Justice delivering opinion, uses this is insisted It language: plaintiff ‘a legislature, adopting phrase, legal *8 of the voters intended township,’ require only majority of the at an election notified legal township voting to ascertain whether the subscribe for and held proposition of the be and the stock should accepted rejected; company- is of such is the true opinion meaning enactment, be ascertained as' the would question necessarily of the ballot.” other authorities cited in a count sup Among is- the case of St. of this State v. proposition Mayor port County 369 Oct. 1877.] v. Johnston. to be established understand rule This we supra. Joseph, f elections, o the absence statutory effect as who All to the contrary. absent regulation to assent an called are from election duly presumed themselves of those unless will voting, the expressed the election otherwise declares.. Any law providing inconvenience, fee rule would productive greatest other o will be unless the t not to adopted, legislative and ought Railroad Co. Louisville & effect clearly expressed. Nashville is. al., 638; et 1 Court Davidson Sneed (Tenn.), v. The 107; 159; 20 v. Ill. Minn. Warfield, v. Taylor, People Taylor Garner, Wiant, v. 48 id. 263. v. People People conclude, Missouri, therefore, Court Supreme We v. it the case The State Linn when decided constitutional, did to- be not overlook the law made,' it settled is now but considered which the objection is, therefore, to be That case consid adjudications. previous as well as that which as Upon question, ered conclusive decided, and, as rule of considered was directly construction, is and constitutional us. binding upon statutory Bates in so follows that our decision v. It Harshman unconstitutional, must the law be be over as it declares far ruled. the bonds sued are invalid,
It is further insisted that which the because subscription .railroad company t no until the. voted was incorporated Shain, v. 54 Mo. is cited of this objec Rubey support decides, if it is to That case be author tion. regarded only cannot be made that a until the by township ity, or, rather, is incorporated, township subscriptions company used' to cannot be into existence. bring company are, to bis not to opinion, judge in. .use the nucleus around aid is to be which Here gathered,” had when the been incorporated company therefore, relied made. The decision' does upon, apply, we inclined to are not extend makes operation. This whether could main defence unnecessary "inquire an tained as innocent holder. that,
It bonds are the bonds of fact finally objected, vol. *9 County op Cass Johnston. can action be maintained them against Without to decide what would be
county. undertaking form of to enforce the appropriate proceeding obligation courts, the State it is sufficient to that in the courts of the say States we are United satisfied with the conclusions entirely below, reached the court and that a be ren judgment may dered enforced, to be if against man necessary, by damus thereof, court or the judges compel and collection of a tax accordance with the levy provi of the law under which the sions bonds were issued. The of the learned circuit in Jordan v. Cass reasoning judge 3 Dill. is to our minds conclusive sub perfectly and we content ject, ourselves with a reference to that simple case as authority upon point.
Judgment affirmed. Beadley, Mr. Justice with whom concurred Mr. Justice Miller, dissenting.
I
feel
adhere to the
obliged
Harshman v.
opinion, given
Bates
be deduced legal objection registry not entitled to vote be- registered some has persons may ;force issue, one to raise that mind. If choose my so'; do but him to would cer open registry the. might .for evidence of the number of furnish legal tainly prima facie voters. a case arose on clause Constitution was adopted, After . declares, art. sect. which Constitution “. have no shall to remove General power county, Assembly unless two-thirds voters of of' of the qualified any county, seat such, re vote favor general was the case of State v. moval. This Sutterfield court, in elaborate these an argument, again vote in the affirmative of two-thirds require positive terms voters of county.; expressly what that no- num “There difficulty ascertaining says, is, since ber same Constitution- a. provides registration, *11 out who voters are.” and points error, the cases on relied defendant precise .by consideration, not now under Su presented Missouri, related to forms of Court preme mostly consideration, from that under and are different" phraseology which'it’is un in several therefrom particulars, distinguishable examine; now The State case of necessary leading Linn examined Harshman cursorily But, v. Bates County. opinion desiring prolong cases, into a. critical examination those I-will simply entering remark, that, them all authority- taking weight together, is, Missouri interpretar the-side my judgment, I whieh still feel tion constrained constitutional' give to clause in question;