1. The provisions of the Act of the General Assembly of Missouri
entitled "An Act to facilitate the construction of railroads in the
State of Missouri," approved March 23, 1868, commonly known as the
"Township Aid Act," which authorize a subscription to the capital
stock of railway companies by a township whenever it appears by the
returns of an election duly called for that purpose "that not less
than two-thirds of the qualified voters of the township voting at
such election are in favor of such subscription" are not repugnant
to sec. 14, art. 11, of the Constitution of that state, adopted in
1865, which ordains that the general assembly shall not authorize
any county, city, or town to become a stockholder in, or to loan
its credit to, any company, association, or corporation unless
two-thirds of the qualified voters of such county, city, or town,
at a regular or special election to be held therein, shall assent
thereto.
2.
Harshman v. Bates County, 92 U. S.
569, so far as it conflicts herewith, is overruled.
3. All qualified voters who absent themselves from an election
held on public notice duly given are presumed to assent to the
expressed will of the majority of those voting unless the law
providing for the election otherwise declares.
4. It is not an objection to the validity of the bonds issued
under that act that the railroad company to the capital stock of
which the subscription was made by the county court on behalf of
the township was not incorporated until the day when the election
took place.
5. On the bonds in question in this suit, the judgment was
properly rendered by the court below against the county, to be
enforced, if necessary, by mandamus against the county court or the
judges thereof to compel the levy and collection of a tax in
accordance with the provisions of that act.
Johnston, a citizen of Iowa, brought this action Sept. 3, 1874,
against the "County of Cass, trustee for Camp Branch Township in
said county, State of Missouri," to recover the amount of certain
overdue coupons attached to bonds whereof he alleged that he was
the lawful holder. A copy of one of the bonds and of a coupon
annexed thereto is as follows:
"
UNITED STATES OF AMERICA"
"
State of Missouri"
"
CASS COUNTY BOND"
"No. 53] Interest ten percent per annum [$500"
"Know all men by these presents that the County of Cass, in the
State of Missouri, acknowledges itself indebted and firmly
Page 95 U. S. 361
bound to the St. Louis & Santa Fe Railroad Company, Missouri
Division, in the sum of $500, which the said County of Cass, for
and on account of Camp Branch Township, for value received, hereby
promises to pay said company, or bearer, at the banking house of
Northrup & Chick, in the City of New York and State of New
York, ten years after date, with interest thereon from the date
hereof at the rate of ten percent per annum, payable semiannually
on the eleventh days of January and July of each year, on the
presentation and delivery at said banking house of Northrup &
Chick, in said City of New York, State of New York, of the coupons
of interest hereto attached."
"This bond is issued pursuant to an order of the County Court of
said County of Cass, made by authority of an Act of the General
Assembly of the State of Missouri entitled 'An Act to facilitate
the construction of railroads in the State of Missouri,' and
approved on the twenty-third day of March, A.D. 1868, and
authorized by a vote of more than two-thirds of the voters of said
township."
"In testimony whereof, the said County of Cass has executed this
bond by the presiding justice of the county court of said county,
under the order of said court, signing his name hereto, and by the
clerk of said court, under the order thereof, attesting the same
and affixing hereto the seal of said court."
"This done at the office of the clerk of said court this
eleventh day of July, A.D. 1870."
"[SEAL]"
"JEHIEL C. STEVENSON"
"
Presiding Justice of the County Court of Cass County,
Mo."
"C. H. DORE"
"Clerk County Court Cass County, Mo."
"HARRISONVILLE, CASS COUNTY, July 11, 1870"
"The County of Cass promises to pay the sum of $25 on the
eleventh day of January, 1873, being interest on bond No. 53, for
$500, payable at the banking house of Northrup & Chick, in the
City of New York, State of New York."
"C. H. DORE,"
"
Clerk of the County Court of Cass County, Mo."
The act referred to in the bond is generally known as "The
Township Aid Act." The first, second, third, and fifth sections are
as follows:
"SECTION 1. Whenever twenty-five persons, taxpayers and
residents, in any municipal township, for election purposes, in any
county in this state, shall petition the county court of such
county, setting forth their desire, as a township, to subscribe to
the capital
Page 95 U. S. 362
stock of any railroad company in this state building or
proposing to build a railroad into, through, or near such township
and stating the amount of such subscription and the terms and
conditions on which they desire such subscription shall be made, it
shall be the duty of the county court as soon as may be thereafter
to order an election to be held in such township to determine if
such subscription shall be made, which election shall be conducted
and returns made in accordance with the law controlling general and
special elections, and if it shall appear from the returns of such
election that not less than two-thirds of the qualified voters of
such township voting at such election are in favor of such
subscription, it shall be the duty of the county court to make such
subscription in behalf of such township, according to the terms and
conditions thereof, and if such conditions provide for the issue of
bonds in payment of such subscription, the county court shall issue
such bonds in the name of the county, with coupons for interest
attached, but the rate of interest shall not exceed ten percent per
annum, and the same shall be delivered to the railroad
company."
"SEC. 2. In order to meet the payments on account of the
subscription to the stock according to its terms or to pay the
interest and principal on any bond which may be issued on account
of such subscription, the county court shall from time to time levy
and cause to be collected in the same manner as county taxes a
special tax which shall be levied on all the real estate lying
within the township making the subscription in accordance with the
valuation then last made by the county assessor for county
purposes."
"SEC. 3. The county treasurer shall be authorized and required
to receive and collect of the sheriff of the county the income from
the tax provided in the previous section, and to apply the same to
the payment of the stock subscription according to its terms or to
the payments of interest and principal on the bonds, should any be
issued in payment of such subscription; he shall pay all interest
on such bonds out of any money in the treasury collected for this
purpose by the tax so levied as the same becomes due, and also the
bonds as they mature, which shall be cancelled by the county court,
and this service shall be considered a part of his duty as county
treasurer."
"SEC. 5. In all cases hereafter 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
Page 95 U. S. 363
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 paid over to the county or city
treasurer, and applied to the payment of the interest and principal
of the bonds issued by such county or city on account of their
subscription stock as aforesaid, if any are outstanding, and if not
it shall by them be placed to the credit of the school fund in such
county, city, or township."
The remaining sections do not affect any question here involved.
They declare when the act shall take effect and provide for
granting to taxpayers certificates convertible into railway
stock.
The Constitution of Missouri took effect July 4, 1865, and sec.
14, art. 11, is as follows:
"The general assembly shall not authorize any county, city, or
town to become a stockholder in, or to loan its credit to, any
company, association, or corporation unless two-thirds of the
qualified voters of such county, city, or town, at a regular or
special election, to be held therein, shall assent thereto."
In 1871, the Legislature of Missouri so amended sec. 2 of the
Township Aid Act of 1868 as to make the tax therein provided for a
tax upon all the real estate and personal property within the
township. The county answered that said bonds were issued in
payment of a pretended subscription by said county in behalf of
said Camp Branch Township, to the St. Louis & Santa Fe Railroad
Company, under the authority of the Act of March 23, 1868, and that
prior to the date of them, the township had no authority to
subscribe for stock in said company or issue bonds therefor or to
have the same done for it by the county court; that prior to April
20, 1869, said company had not been organized, that on March 13,
1869, twenty-five voters of said township filed a petition setting
forth the desire of said township to subscribe _____ dollars to the
capital stock of the St. Louis & Santa Fe Railroad Company,
proposed to be organized, to build a railroad through said
township, said subscription to be paid in bonds to be issued by
said county court for and on account of the township; that on that
day, the court ordered an election
Page 95 U. S. 364
in said township to be held on April 20, 1869; that on April 20,
1869, articles of incorporation were filed in the office of the
secretary of state as provided by law, and thereby said company in
said state became incorporated; that at the election so held,
two-thirds of the qualified voters of the township did not vote in
favor of the subscription, although more than two-thirds of them
voted at such election; and that by reason of the premises, said
bonds were null and void.
The plaintiff demurred to the answer and, the demurrer having
been sustained, judgment was rendered that the plaintiff recover of
"said county, trustee for said township" the amount of said
coupons, with interest thereon and costs, and that said county do
pay the same "out and from taxes levied on the taxable property of
said township."
The county thereupon sued out this writ of error.
Page 95 U. S. 365
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The first question presented for our determination in this case
is whether the "Township Aid Act" of Missouri is repugnant to art.
11, sec. 14, of the constitution of that state, inasmuch as it
authorizes subscriptions by townships to the capital stock of
railroad companies whenever two-thirds of the qualified voters of
the township, voting at an election called for that purpose, shall
vote in favor of the subscription, while the Constitution prohibits
such a subscription, "unless two-thirds of the qualified voters of
the . . . town, at a regular or special election to be held
therein, shall assent thereto."
In
Harshman v. Bates County, 92 U. S.
569, we incidentally decided the act to be
unconstitutional; but the point then specially in controversy was
as to the applicability of this constitutional prohibition to
township organizations. It was impliedly conceded upon the argument
that, if the Constitution did apply, the law could not be
sustained, and we accepted this concession as truly stating the law
of Missouri. Now, however, the question is directly presented,
whether the provisions of the constitution and the statute are not
substantially the same. On the one hand, it is contended that the
constitution requires the actual vote of two-thirds of the
qualified voters of the township in favor of the subscription, and,
on the other, that the requisite assent is obtained if two-thirds
of those voting at the prescribed election shall vote to that
effect.
The Supreme Court of Missouri has often been called upon to
construe and give effect to this statute, and has never in a single
instance expressed a doubt as to its validity. The first
Page 95 U. S. 366
case was that of
State v. Linn County, 44 Mo. 504,
decided in 1869, the year after the law was passed. That was an
application for a mandamus to compel the county court to issue
bonds upon a subscription made pursuant to a vote under the law,
and it was contended that the act was repugnant to art. 11, sec.
14, of the constitution, because the bonds to be issued were the
bonds of the county and not of the township, and the voters of the
county had not given their assent; but the court held that they
were the bonds of the township, and granted the writ. Following
this are the cases of
Ranney v. Baeder, 50 Mo. 600;
McPike v. Pen, 51
id. 63, decided in 1872;
State v. Cunningham, 51
id. 479;
Rubey v.
Shain, 54
id. 207, decided in 1873;
State v.
Bates County, 57
id. 70, decided in 1874;
State
v. Clarkson, 59
id. 149, decided in 1875;
State
v. Daviess County, 64
id. 31; and
State v. Cooper
County, id., 170, decided in 1876 -- in all of which the act
was in some form brought under consideration, and in no one was
there a suggestion of its unconstitutionality by either court or
counsel.
It is true that the objection now made to the law was in no case
presented or considered; but this is sufficiently explained by the
fact that in other cases a construction adverse to such a position
had been given to language similar to that employed in the
constitutional prohibition. In
State v. Winkelmeier, 35
id. 103, decided in 1864, just previous to the adoption of
the constitution, under a law which empowered the city authorities
of St. Louis to grant permission for the opening of establishments
for the sale of refreshments on any day in the week, "whenever a
majority of the legal voters of the city" authorized them to do so,
it was held that there must be a majority of the voters
participating in the election at which the vote was taken, and not
merely a majority of those voting upon that particular question.
The judge who delivered the opinion of the court did, indeed,
say,
"The act expressly requires a majority of the legal voters; that
is, of all the legal voters of the city, and not merely of all
those who at a particular time choose to vote upon the
question."
But this must be read in connection with what follows, where it
is said that
"it appeared that more than thirteen thousand voters
participated in that election, and that only five thousand and
thirty-five persons
Page 95 U. S. 367
voted in favor of giving to the city authority, . . . and two
thousand and one persons voted against it. . . . It is evident that
the vote of five thousand out of thirteen thousand is not the vote
of a majority."
Taking the opinion as a whole, it is apparent that there was no
intention of deciding that resort must be had elsewhere than to the
records of the election at which the vote was taken to ascertain
whether the requisite majority had been obtained. But however this
may be, in 1866 a similar question was presented to the same court
in
State v. Mayor of St. Joseph, 37
id. 270.
There it was provided that the Mayor and Council of St. Joseph
should cause all propositions "to create a debt by borrowing
money," to be submitted "to a vote of the qualified voters of the
city," and that in all such cases it should require "two-thirds of
such qualified voters to sanction the same." A proposition to
borrow money for the improvement of streets was submitted to a vote
of the voters at an election called for that purpose, and resulted
in a majority in favor of the measure. The mayor declined signing
the necessary bonds, because
"he was in doubt whether the matter was to be determined by
two-thirds of all the votes polled at the special election, or by
two-thirds of all the voters resident in the city, absolutely,
whether voting or not."
Thereupon a suit was instituted to settle this question, and to
compel the mayor, by mandamus, to issue the bonds. In giving its
decision, the court said:
"We think it was sufficient that two-thirds of all the qualified
voters who voted at the special election, authorized for the
express purpose of determining that question, on public notice duly
given, voted in favor of the proposition. This was the mode
provided by law for ascertaining the sense of the qualified voters
of the city upon that question. There would appear to be no other
practicable way in which the matter could be determined."
The writ of mandamus was accordingly issued. The same year the
question came up again in
State v. Binder, 38
id.
450. In that case, the point arose under the Refreshment Act of St.
Louis, which was considered in
State v. Winkelmeier. It
appeared that the authority to grant the permission in question was
given at a special election called for that purpose, and that out
of a vote of seven thousand and eighty-five, five thousand and
fifty-one
Page 95 U. S. 368
were in favor of the grant and two thousand and thirty-four
against it. The cases of
State v. Winkelmeier and
State v. St. Joseph were both referred to, and after
quoting from the opinion in the latter case it was said:
"We think the case made here comes within the reasoning and the
principles of that decision -- namely that an election of this
kind, authorized for the very purpose of determining that question,
on public notice duly given, was the mode contemplated by the
legislature, as well as by the law, for ascertaining the sense of
the legal voters upon the question submitted, and that there could
not well be any other practicable way in which such a matter could
be determined."
These decisions had all been made and had never been questioned
when the act of 1868, now under consideration, was passed. They
were also in force as evidence of the law of the state when the
bonds in controversy were issued, and so far as we are advised
there has been no disposition since on the part of the courts of
the state to modify them. In
State v. Sutterfield, 54
id. 391, the question was as to the construction of
another clause in the constitution, and the decision was placed
expressly on the ground of a difference between the two provisions.
That court has in the strongest language intimated its
unwillingness to interfere with its previous adjudications when
property has been acquired or money invested under them.
Smith
v. Clark County, id., 58;
State v. Sutterfield,
supra.
In
St. Joseph Township v.
Rogers, 16 Wall. 644, this Court gave the same
construction to the phrase, "a majority of the legal voters of a
township," as used in an Illinois municipal aid statute; and MR.
JUSTICE CLIFFORD, in delivering the opinion, uses this
language:
"It is insisted by the plaintiff that the legislature, in
adopting the phrase, 'a majority of the legal voters of the
township,' intended to require only a majority of the legal voters
of the township voting at an election notified and held to
ascertain whether the proposition to subscribe for the stock of the
company should be accepted or rejected; and the court is of the
opinion that such is the true meaning of the enactment, as the
question would necessarily be ascertained by a count of the
ballot."
Among other authorities cited in support of this proposition is
the case of
State v. Mayor of St.
Page 95 U. S. 369
Joseph, supra. This we understand to be the established
rule as to the effect of elections, in the absence of any statutory
regulation to the contrary. All qualified voters who absent
themselves from an election duly called are presumed to assent to
the expressed will of the majority of those voting, unless the law
providing for the election otherwise declares. Any other rule would
be productive of the greatest inconvenience, and ought not to be
adopted, unless the legislative will to that effect is clearly
expressed.
Louisville & Nashville Railroad Co. v. County
Court of Davidson, 1 Sneed (Tenn.) 638;
Taylor v.
Taylor, 10 Minn. 107;
People v. Warfield, 20 Ill.
159;
People v. Garner, 47
id. 246;
People v.
Wiant, 48
id. 263. We conclude, therefore, that the
Supreme Court of Missouri, when it decided the case of
State v.
Linn County, and held the law in question to be
constitutional, did not overlook the objection which is now made,
but considered it settled by previous adjudications. That case is,
therefore, to be considered as conclusive upon this question, as
well as upon that which was directly considered and decided, and,
as a rule of state statutory and constitutional construction, is
binding upon us. It follows that our decision in
Harshman v.
Bates County, insofar as it declares the law to be
unconstitutional, must be overruled.
It is further insisted that the bonds sued upon are invalid
because the railroad company to which the subscription was voted
was not incorporated until the day of the election, and
Rubey
v. Shain, 54 Mo. 207, is cited in support of this objection.
That case only decides, if it is to be regarded as authority, that
a subscription cannot be made by a township until the company is
incorporated, or rather that township subscriptions cannot be used
to bring the company into existence. They are, to use the language
of the judge in his opinion, not to be made the "nucleus around
which aid is to be gathered." Here the company had been
incorporated when the subscription was made. The decision relied
upon therefore does not apply, and we are not inclined to extend
its operation. This makes it unnecessary to inquire whether this
defense could be maintained as against an innocent holder.
It is finally objected that as the bonds are in fact the bonds
of
Page 95 U. S. 370
the township, no action can be maintained upon them against the
county. Without undertaking to decide what would be the appropriate
form of proceeding to enforce the obligation in the state courts,
it is sufficient to say that in the courts of the United States, we
are entirely satisfied with the conclusions reached by the court
below, and that a judgment may be rendered against the county, to
be enforced, if necessary, by mandamus against the county court or
the judges thereof, to compel the levy and collection of a tax in
accordance with the provisions of the law under which the bonds
were issued. The reasoning of the learned circuit judge in
Jordan v. Cass County, 3 Dill. 185, is to our minds
perfectly conclusive upon this subject, and we content ourselves
with a simple reference to that case as authority upon this
point.
Judgment affirmed.
MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE MILLER,
dissenting.
I feel obliged to adhere to the opinion given in
Harshman v.
Bates County, 92 U. S. 569. If
the Missouri convention which framed the Constitution of 1865
desired to prevent municipal subscriptions to railroad and other
enterprises except by the consent of a majority of the people
qualified to vote in the district to be affected, I do not see what
language could have been adopted more apt for the purpose than that
which is actually used in the fourteenth section of art. 11:
"The general assembly shall not authorize any county, city or
town to become a stockholder in, or to loan its credit to, any
company, association, or corporation unless two-thirds of the
qualified voters of such county, city, or town, at a regular or
special election to be held therein, shall assent thereto."
The literal meaning of this clause seems to me unmistakably to
require two-thirds of the qualified voters, whether they vote or
not. The language is just as strong as that of the twenty-fourth
section of art. 4, which declares that "No bill shall be passed
unless by the assent of a majority of all the members elected to
each branch of the general assembly." This clause has always been
construed to mean that no law can be passed unless a majority of
the members vote for it, whether all are
Page 95 U. S. 371
present or not. And the reason of the requirement in the former
case is as strong as in the latter. The people who are to pay the
taxes for raising a subscription to a railroad ought not to be
subjected to that burden unless the requisite majority of the class
named -- that is, the qualified voters -- can be induced to give
their assent to it. In the one case as in the other, absence and
failure to vote is equivalent to a dissent. I concede that if the
Supreme Court of Missouri has given a contrary construction to the
clause, which has become the settled law of the state, we should be
governed by it. But I do not understand that this has been done. In
State v. Winkelmeier, 35 Mo. 103, which was decided just
before the adoption of the constitution, the question arose upon
the act of 1857, which declared that
"The corporate authorities of the different cities in the County
of St. Louis shall have the power, whenever a majority of the legal
voters of the respective cities in said county authorize them to do
so, to grant permission for the opening of any establishment within
the corporate limits of said cities for the sale of refreshments on
any day in the week."
At an election in St. Louis, five thousand persons voted in
favor of giving to the city authority to grant permission to open
establishments for the sale of refreshments on Sunday, and two
thousand voted against it. The court held, that in order to confer
the requisite authority under the act, it required
"a majority of the legal voters -- that is, of all the legal
voters -- of the city, and not merely of all those who might, at a
particular time, choose to vote upon the question."
This was the express language of the court, and as at that
election more than thirteen thousand voters participated in voting
for the officers to be elected, it was apparent from the election
returns themselves, without looking further, that a majority of the
legal voters of the city had not voted for the authority; and hence
it was decided that no authority had been given. It is evident that
the court would have come to the same conclusion had it been shown
in any other way that less than a majority of the legal voters
voted for the authority. The mode of ascertaining the whole number
of legal voters was not prescribed by the law. In that case it
sufficiently appeared from the election returns themselves. There
is no valid reason why the same conclusion should not
Page 95 U. S. 372
be deduced from a registry of the legal voters. The objection
that some persons not entitled to vote may be registered has no
force to my mind. If anyone choose to raise that issue, it might be
open for him to do so, but the registry would certainly furnish
prima facie evidence of the number of legal or qualified
voters.
After the Constitution was adopted, a case arose on that clause
of the constitution which declares, art. 4, sec. 30,
"That the general assembly shall have no power to remove the
county seat of any county unless two-thirds of the qualified voters
of the county, at a general election, shall vote in favor of such
removal. This was the case of
State v. Sutterfield, 54
id. 391, and the court in an elaborate argument again held
that these terms require a positive vote in the affirmative of
two-thirds of the qualified voters of the county, and the court
expressly says,"
"There is no difficulty in ascertaining what that number is,
since the same Constitution provides for a registration and points
out who the qualified voters are."
In the cases relied on by the defendant in error, the precise
question now under consideration was not presented to the Supreme
Court of Missouri. They mostly related to forms of phraseology
different from that under consideration, and are distinguishable
therefrom in several particulars, which it is unnecessary now to
examine. The leading case of
State v. Linn County, 44
id. 504, was cursorily examined in
Harshman v. Bates
County. But, not desiring to prolong this opinion by entering
into a critical examination of those cases, I will simply remark
that, taking them all together, the weight of authority in Missouri
is, in my judgment, on the side of the interpretation which I still
feel constrained to give to the constitutional clause in
question.
