County of Henry v. Nicolay

ERROR to the Circuit Court of the United States for the Western District of Missouri.

This is an action for the recovery of the amount due upon certain coupons annexed to bonds issued by the county of Henry, Missouri. The following is a copy of one of the bonds:-- 'HENRY COUNTY BOND.-STATE OF MISSOURI.

'$1,000.

'Interest ten per cent per annum, payable semiannually on the first days of January and July.

'Know all men by these presents, that the county of Henry, in the State of Missouri, acknowledges itself indebted and firmly bound to the Tebo and Neosho Railroad Company, to the use and in the name of the Clin on and Memphis Branch of the Tebo and Neosho Railroad, in the sum of $1,000, which sum the said county hereby promises to pay to the Tebo and Neosho Railroad Company, or bearer, to aid in building said branch railroad, at the National Park Bank, in the city of New York, on the first day of January, 1881, together with interest thereon at the rate of ten per cent per annum, which interest shall be paid semiannually on the first days of July and January of each year, on the presentation and delivery at said bank of the coupons hereto severally subjoined.

'This bond is issued under and in pursuance of an order of the county court of Henry County in the State of Missouri, and in pursuance of and by authority of an act of the General Assembly of the State of Missouri, entitled 'An Act to incorporate the Tebo and Neosho Railroad Company,' approved Jan. 16, 1860, and of an act of the General Assembly of the State of Missouri, entitled 'An Act to aid in the building of branch railroads in the State of Missouri,' approved March 21, A.D. 1868.'

The bond is duly signed, sealed, and attested, and the coupons attached are in the usual form.

The act of incorporation thus mentioned authorizes the company thereby created to 'survey, mark, locate, construct, maintain, and operate a railroad, commencing at a point on the Pacific Railroad, between the west bank of the Lamine River, and Muddy Creek, in Pettis County, by the most direct and practical route, in a southerly or south-westerly direction, through Henry County; thence to some point on the State line, between the north-west corner of Jasper County and the south-east corner of McDonald County,. . . and to extend branch railroads into and through any counties that the directors may deem advisable.'

It declares as applicable to the company certain sections of the act incorporating the Osage Valley and Southern Kansas Railroad Company, approved Nov. 21, 1857, among which is the fourteenth, providing that 'It shall be lawful for the county court of any county in which any part of the route of said railroad or branch may be, or any county adjacent thereto, to subscribe to the stock of the company; and, for the stock subscribed in behalf of the county, may issue bonds of the county to raise the funds to pay the same, and to take proper steps to protect the interest and credit of the county court.'The following is an act of the General Assembly of Missouri, approved March 21, 1868:--

'SECTION 1. Any railroad company in this State, authorized by law to build branches, and wishing to avail themselves of the provisions of this act, shall, by its board of directors, pass, and cause to be entered upon its records, a resolution setting forth such desire, and designating the name under which such branch shall be built, its point of intersection with its main line, and general course, a certified copy of which resolution shall be filed with the secretary of state, after which they shall be governed by the provisions of this act.

'SECT. 2. Whenever any such railroad company shall undertake the construction of a branch designated, as provided in the first section of this act, they shall receive donations or subscriptions to stock to aid in its construction in the name of such branch, which shall be expressed in the certificate of stock issued; the cost and expenses of constructing and operating such branch shall be kept separate and distinct from expenses on the main line. They may borrow money and issue bonds secured by mortgage on such branch road to aid in its construction, and, in general, may operate, lease, sell, or consolidate with any connecting road, distinct and separate from their main line, and in any other way may manage or dispose of such branch as by law they may be authorized, with reference to their main line, and separate therefrom.

'SECT. 3. Any branch road so constructed shall not be holden for any debt, lien, or liability of the main line, nor shall the main line be holden for any debt, lien, or liability of such branch. ny dividends of profits arising out of the business of such branch road shall be divided among the stockholders in said branch, and in all respects the interest of the stockholders in the branch shall be kept separate and distinct from the interests of the stockholders in the main line.

'SECT. 4. The holders of stock in any railroad company which was subscribed in aid of the construction of a branch road, according to the provisions of this act, shall have the same rights as other stockholders in the company in the choice of officers; but in all matters directly and specially affecting the interests of such branch road the stockholders in such branch shall control, and for such purposes the directors, under their by-laws, may, or on the petition of parties representing one-tenth of such stock shall, call a meeting of the stockholders in such branch, setting forth the object of such meeting; and at any such meeting such stockholders may instruct the board of directors in all matters relating especially to their interests, and they shall be governed by such instructions, if not inconsistent with the laws of the State and the powers of such company.

'SECT. 5. This act shall be in force and take effect from and after its passage.'

The 'Clinton and Memphis Branch of the Tebo and Neosho Railroad' was organized and undertaken with the consent of the directors of the Tebo and Neosho Railroad Company.

On the 4th of August, 1870, the county court of the county of Henry, on 'the application of the Clinton and Memphis Branch of the Tebo and Neosho Railroad for a subscription to the capital stock of said branch road from the county of Henry, to aid in the construction of said branch road,' ordered and adjudged that the said county 'do subscribe for and agree to take one thousand five hundred shares of the capital stock of the Clinton and Memphis Branch of the Tebo and Neosho Railroad, each share being of the denomination of $100, and amounting, in the aggregate, to the sum of $150,000, under and by virtue of the authority in the charter of the Tebo and Neosho Railroad Company contained, and under the act of the General Assembly of the State of Missouri, entitled 'An Act to aid the building of branch railroads in the State of Missouri,' approved March 21, 1868, and in accordance with the resolution and orders of the board of directors of said Tebo and Neosho Railroad Company, establishing said branch railroad company and authorizing subscriptions to the capital stock thereof, adopted on the sixth day of June, 1870, the said capital stock to be paid for by the issue and delivery to the committee appointed to construct said branch road of the coupon bonds of the county,' of the foregoing tenor. The subscription was made on certain conditions as to the location of the branch railroad, and none of the bonds were to be delivered until the grading and masonry of the road within the limits of the county were let by contract to persons of whose responsibility the court should be satisfied. One Hillegas was appointed the agent of the county to subscribe the stock in accordance with the terms of the order, and to cause the bonds to be issued and delivered.

Oct. 11, 1870, the Tebo and Neosho Railroad Company executed a deed, whereby it, with the consent of a majority of its stockholders, sold, conveyed, and transferred to the Missouri, Kansas, and Texas Railway Company 'all its privileges, rights, powers, franchises, real estate, and other property, the whole or a part of which is in this State, excepting only such as belong to the extension of the Tebo and Neosho line north from Sedalia, via Boonville, Fayette, and Moberly, to the railroad bridge at West Quincy, declared July 2, 1869, certificate of which, dated July 3, 1869, was filed in the office of secretary of state, and doth consent to a merger of the same with the franchises, property, and rights of said party of the second part; and the said Missouri, Kansas, and Texas Railway Company, party of the second part, shall have, exercise, and enjoy all the rights, powers, privileges, and immunities of the original charter of the Tebo and Neosho Railroad Company, and of the several amendments thereto, in the same manner and to the same extent as has been heretofore exercised and enjoyed by the said Tebo and Neosho Railroad Company, party of the first part, or by the several shareholders in said company, whose stock shall be exchanged as herein provided, either or both; and the said party of the second part does hereby accept the terms and conditions of the within instrument.'

On the 7th of November following, the county court made an order, which, after reciting that of Aug. 4, the subscription made by Hillegas, and the fact of the compliance by said branch road, with all the conditions precedent to the delivery of said bonds, concluded as follows:--

'Now, therefore, it is considered by the court that said bonds be signed by the presiding justice of this court, and attested by the clerk of this court, under the seal thereof, and the coupons signed by said clerk as directed in said order; and that said bonds, numbered from No. 1 to No. 150, inclusive, of the denomination of $1,000 each, and amounting in the aggregate to $150,000, signed and sealed as aforesaid, be delivered to the chairman of the committee of construction of said branch railroad, and that the clerk of this court take his receipt therefor.'The petition of the plaintiff is in the usual form.

The answer of the county alleges that the bonds were issued without authority of law; that they were not ordered to be issued, nor were they in fact issued, to the Tebo and Neosho Railroad Company, to the use and in the name of the Clinton and Memphis branch; that said branch never had any legal existence; that, if it did have such existence, it was under the act of March 21, 1868, and therefore the issue of the bonds was illegal, as the consent thereto of two-thirds of the qualified voters of the county was not first obtained; that prior to the issue of the bonds the Tebo and Neosho Company sold all its rights and franchises to the Missouri, Kansas, and Texas Railroad Company, which sale revoked the authority, if any existed, to issue said bonds; that after their issue and sale proceedings were instituted in the State court to enjoin the collection of the tax for the payment of either their principal or interest, and that all of these matters were known to the plaintiff when he brought his action.

The plaintiff demurred to the evidence offered by the county. There was nothing to show that, when he purchased the bonds, he had notice of the facts relied on in support of the answer. The court sustained the demurrer, and instructed the jury to find a verdict for him; which was done, and judgment rendered accordingly.

The county then sued out this writ of error.

Mr. John F. Philips and Mr. James O. Broadhead for the plaintiff in error.

Mr. James Grant, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.