Jarrolt v. Moberly/Dissent Harlan

MR. JUSTICE HARLAN dissenting.

The recitals in the bonds show that an election was held, in the town of Moberly, three days before the passage of the act of March 29, 1872, to decide whether that town should purchase and donate to the St. Louis, Kansas City, and Northern Railway Company, two hundred acres of land for machineshop purposes; that two hundred and twenty-eight votes were cast in favor of, and only one against, such donation and purchase; that the bonds in question were issued in pursuance of that election and of the orders of the board of trustees of the town, made on the eighteenth day of April, 1872; and that such orders were made in accordance with the aforesaid act of March 18, 1870.

The circuit judge conceded it to be the settled law of Missouri that municipal aid could be given to railroad companies without infringing the Constitution of the State; and that if machine-shops constituted an integral or essential part of a railroad, or were necessary for its convenient use or operation, then the act of March 18, 1870, was not obnoxious to the principles announced in Loan Association v. Topeka, 20 Wall. 655. But he was of opinion that the issuing of the bonds in suit to be used in the purchase and donation of lands to a railroad company for machine-shop purposes was a 'loan of credit,' upon the part of the town, within the meaning of the State Constitution; and that, consequently, the act of March 18, 1870, was unconstitutional, in that it permitted an issue of bonds, for such purposes, upon the assent only of a majority of the qualified voters of the municipality.

In the view which I take of this case, it is not necessary to decide whether this transaction was, or not, a loan of credit. For, assuming that it was, the petition must be regarded as stating a valid and sufficient cause of action against the defendant if, at the time of the election, held on the 26th of March, 1870, the act of March 17, 1870, had become so modified by subsequent legislation, as to require the assent of two-thirds of the qualified voters of the town as a condition precedent to any issue of bonds to be applied in the purchase of lands to be donated to the railroad company for machine-shop purposes. And such, I think, was the legal effect of the act of Feb. 16, 1872. The first clause of its first section declares, that 'no county court of any county, city council of any city, nor any board of trustees of any incorporated town, shall hereafter have the right to donate, take, or subscribe stock for such county, city, or incorporated town, in, or loan the credit thereof to, any railroad company. . . unless authorized to do so by a vote of two-thirds of the qualified voters of such county, city, or incorporated town.' The General Assembly, of course, knew when they passed the law of Feb. 16, 1872, that the previous statute of March 18, 1870, had assumed to authorize counties, cities, and towns to make donations to railroad companies, for machine-shop purposes, upon a bare majority vote of the qualified electors. The prohibition against donations thereafter, except with the sanction of two-thirds of the qualified voters, was, in view of former legislation, equivalent to an affirmative recognition of power thereafter to make such donations in pursuance of the provisions of the act of Feb. 16, 1872. That act imported into the act of March 18, 1870, the requirement of a two-thirds affirmative vote as a condition precedent to any donation of land for machine-shop purposes. The express repeal, by the act of Feb. 16, 1872, of all parts of laws inconsistent therewith, evinces a purpose, upon the part of the General Assembly, to do something more than declare a violation of that act, by any of the officers therein named, to be a felony. Nor was it intended to withdraw from counties, cities, and towns authority, under any circumstances, to make such donations. Manifestly there was also a purpose to provide against the possibility of donations or loans of credit, under any existing statute, except with the express sanction of two-thirds of the qualified voters of the municipality. The only difficulty in the way of this conclusion arises from the negative character of the language of the first clause of the act of Feb. 16, 1872. But that difficulty seems to be removed by the fact that a previous statute having assumed to confer upon counties cities, and towns the power to make donations to railroad companies for machine-shop purposes, the object of the act of Feb. 16, 1872, was thereafter to require the previous assent of two-thirds of the electors, and to repeal all acts or parts of acts inconsistent with that requirement. The bonds, upon their face, show the assent of all the electors voting except one. Had these bonds recited, in terms, that they were issued in pursuance of the act of March 18, 1870, as modified by subsequent legislation, there would have been no ground upon which to question the authority to issue them.

But the rights of the purchaser of the bonds should not be sacrificed because the reference to the statute, by authority of which they were issued, was not full or technically accurate. When the election was held, the statute of March 18, 1870, as modified by that of Feb. 16, 1872, authorized an issue of bonds for the purchase of lands to be donated for machine-shop purposes, two-thirds of the qualified voters of the town assenting thereto. The provisions of that statute, as thus modified, seem to have been complied with.

I am of opinion that the act of March 29, 1872, passed after the election of March 26, 1870, was only cumulative legislation, so far as it related to subjects embraced in the act of March 17, 1870, as modified by the act of Feb. 16, 1872. I think that the act of March 17, 1870, as modified by the act of Feb. 16, 1872, was constitutional, and that the petition states a good cause of action against the defendant, even if the issue, by the town, of bonds for the purposes indicated, was a loan of credit, within the meaning of the State Constitution.

For these reasons I feel obliged to dissent from the opinion and judgment.