Scotland County v. Hill

This writ of error brings up for review a judgment against the county of Scotland, in the state of Missouri, for the amount of certain coupons of bonds, bearing date September 1, 1870, and purporting to have been issued by that county to the Missouri, Iowa & Nebraska Railway Company, a corporation created by the consolidation of the Alexandria & Nebraska City Railroad Company, of Missouri, (formerly known as the Alexandria & Bloomfield Railroad Company,) with the Iowa Southern Railway Company, of Iowa. The coupons are payable to bearer, at the Farmers' Loan & Trust Company, New York, while the bonds are payable to the above consolidated company, or bearer, at the same place, on the 31st of December, 1895, with interest thereon from December 31, 1870, payable annually in that city, at the rate of 8 per cent. per annum. Each bond recites that it is issued under and pursuant to an order of the county court for subscription to the stock of the Missouri, Iowa & Nebraska Railway Company, 'as authorized by an act of the general assembly of the state of Missouri, entitled 'An act to incorporate the Alexandria and Bloomfield Railroad Company,' approved February 9, 1857.' It appeared in proof that the county court, in conformity with the petition of tax-payers and residents, made an order on the 9th of August, 1870, for the subscription of $200,000 to the stock of the Missouri, Iowa & Nebraska Railway Company, payable in coupon bonds of the above kind, and at the same time designated an agent with authority to make the subscription upon the books of the company, to represent the county at the meetings of stockholders, and to receive dividends on its stock. The order stated that the subscription was upon certain specified terms and conditions, among which was one providing for the delivery to the railway company of $100,000 of the bonds when the road was 'graded, bridged, and tied, the track laid, and the cars running thereon from Alexandria, Mo., to a permanent depot, located within one-half mile of the court-house in Memphis,' and for the delivery of the remaining $100,000 of the bonds when the road was completed from Memphis to the west or north line of the county, and the cars were running over it. By the same order the county attorney was directed to have the bonds printed, the presiding justice of the county to sign them, and the clerk to make proper attestation of his signature.

At the same time Charles Mety was appointed trustee for the county, and charged, in that capacity, with the duty of receiving the bonds from the county clerk as soon as they were issued, and of delivering them to the railway company, in exchange for stock, upon its complying with the conditions specified in the order for the subscription. The trustee was required to give bond in the sum of $300,000 for the faithful performance of his trust.

On the 11th of September, 1871,-the road being then nearly completed to Memphis, the county-seat,-Levi Wagner and other tax-payers and citizens brought a suit in the circuit court of Scotland county to perpetually enjoin Mety from delivering the bonds or coupons to the railway company. It was alleged as a principal ground for such relief that the subscription made by the county to pay which the bonds had been executed was without proper legal authority and therefore null and void. The defendants in that suit were Mety, the county trustee and custodian of the bonds; Fullerton, county treasurer; Dawson, Cooper, and Marguis, justices of the county, and sitting as the county court at the time the qnsscription was made; and the Missouri, Iowa & Nebraska Railway Company. A few days prior to September 20, 1871, Mety went to Warsaw, Ill., taking with him $100,000 of the bonds, to be there delivered to the railway company, upon completion of the road to Memphis. He and the Justices of the county court had then heard of the institution of the Wagner suit, and he went to Warsaw, under the direction of the members of that body, in order to evade the service upon him of the proposed injunction. While there, he received from Dawson and Cooper, a majority of the justices composing the county court, an official communication, under date of September 20, 1871, in these words: "The iron is laid on the Missouri, Iowa and Nebraska Railway to the depot and the building is up. The company having complied with all the requirements, you will please deliver them the first hundred thousand dollars of the county's subscription and receive stock for the same." He complied with this order by delivering the bonds, at Warsaw, on the same day, taking from the company, as suggested by the justices, its bond indemnifying him against all damages, costs, expenses, etc., which he, as trustee for the county, might incur "by reason of certain injunction suits now pending in the Scotland County Circuit Court." On the 11th of December, 1871, the county court, by an order entered upon its record, so modified the previous order of August 9, 1870, as to authorize Mety to deliver to the company the second installment of $100,000 of bonds, upon the execution to him, as trustee, and to the county, of an indemnifying bond containing certain specified provisions. Such an obligation was immediately executed by the company, and the second installment of bonds was therupon delivered to it by the court while in session at the county seat.

The Wagner suit was taken, by change of venue, to the circuit court of Shelby county, Mo., by which a final decree was rendered on the 2d of June, 1874, declaring the bonds void for the want of legal authority in the Scotland county court to make the subscription of stock to the Missouri, Iowa & Nebraska Railway Company, and ordering them to be surrendered for cancellation. This decree was affirmed by the supreme court of Missouri at its October term, 1878. That judgment of affirmance proceded, mainly, upon the ground that, as the privilege given by its charter of 1857 to the Alexandria & Bloomfield Railroad Company (afterwards the Alexandria & Nebraska City Railroad Company, Laws Mo., 1865-66, p. 222) of having municipal subscriptions without a previous vote of the people was not exercised prior to the formation, by consolidation, in 1870, of the Missouri, Iowa & Nebraska Railway Company, such privilege passed, if at all, to the consolidated company, subject to the prohibition in the state constitution of 1865 against municipal subscriptions to corporations or companies, except upon the previous sanction of two-thirds of the qualified voters at a regular or special election for that purpose. Wagner v. Meety, 69 Mo. 150. That ruling, the court said was in harmony with its previous decision in State v. Garroutte, 67 Mo. 445.

H. A Cunningham, for plaintiff in error.

F. T. Hughes and J. H. Overall, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.