# County of Cass v. Johnston/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Bradley
United States Supreme Court
95 U.S. 360
County of Cass v. Johnston
The first question presented for our determination in this case is, whether the 'Township Aid Act' of Missouri is repugnant to art. 11, sect. 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, 'unle § 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 case was that of The 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, sect. 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 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 vot 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 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 n tified 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. 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. The County Court of Davidson et al., 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 The 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, in so far 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 defence could be maintained as against an innocent holder.
It is finally objected, that, as the bonds are in fact the bonds of 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.

## Notes

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