# County of Cass v. Johnston/Dissent Bradley

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* Dissenting Opinion Bradley
United States Supreme Court
95 U.S. 360
County of Cass v. Johnston
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 distri t 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 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 countrary 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 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 any one 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, sect. 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 re oval. 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 The 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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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