Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1878-05-11
MISSOURI TOWNSHIP BONDS.
An Important Decision by the State
Supreme Court.
Townships Have No Right to Issue
Bonds.

Townships Have No Right to Issue
Bonds.
notwithstanding of h Act OF
March "a. SOS
The following is the text OF the opinion OF
Judge Norton in the Lafayette township bond
case. delivered in the supreme court Monday
NAV G. 1873.
Thomas A. Webb. defendent in error. vs.. La
fayete County. PLAINTIFF IN error.
opINI,N OF Tux COURT.
This suit was instituted in the circuit court Of
Lafayette county.
The petition contains two counts. the first OF
which Is founded upon a coupon or interest
warrant of u county bond of Defendant Issued Ia
the Lexington and st. Louis rniiroah company
the second of which ID founded upon II coupon
OF Defendants bond for nail on behalf of Sni-a-
Bar township. in said county. issued to the
Lexington, Chillicothe and Guif railroad com.
pany. II is alleged that the bond, II coupon OF
. hich is declared upon in the first count. was
issued by virtue OF All order OF the county court.
Decsmb ari o u is 5se Authorizing the county court
of any county through which the Lexington and
81. Louis railroad might pass. To subscribe 10 Its
capital stock and Issue the bonds Of the county
in payment therefor, and by virtue Of an
act amendatory thereof, and o. An act OF March -.
1865. authorizing counties to fund their debts.
Ii 10 further alleged that the bond. y coupon OF
which Is declared upon in the second count, WAS
issued 10 the Lexington, Chillicothe and Gull
Court. and an act of the general assembly, ap-
proved March 70. 1865, entitled AN act To iacIl-
itute tie construction of railroads In the state
and authorized by n vote OF two-thirds Of the
qualified voters OF 5ai-A- Bar township voting at
An election held for that purpose
| The defendant deInurret to both counts OF the
petition; To the nrst, on The ground that the acts
referred 10 in the petition, did not confer All
thority on the county court t. issue the Bond Or
act of March %. 1865, under the authority of
which the coupon hu-d upon WAS issued, WAS
demonstrations and void.
The court sustained the demurrer to the second
count, oyerruled II Ms to the first and entered
Judgment accordingly, To which action both par
lies excepted. and the cause Is before vs. on writ
Of error.
The exception taken to the action OF the trial
court. in sustaining the demurrer TO the second
count OF pluItld's petition, involves d d"t-rnip-
alton OF the validity OF the act vi March y. 1865,
under which the coupon IN suit WAS issued. II
~ Insisted that said act IS vIOlative of section IL
II ant. - Uf the constitution OF 1855, and before
proceeding directly To the question presented, it
may he useful to consider the state of the law at
the time that instrument was framed and adopt
eel IN order to determine what was intended to
be accomplished by the sections to which our
attention has hren called. Section ], article !
OF the constitution OF lS20 PROVIDED ''that inter
nal improvements should he forever encouraged
by the government OF the state and the gen
cru! assembly had put this injunction into prac-
teal operation by luaning the credit AMI issuing
the bonds Of the state 10 various railroad enter
| prIses. whereby u debt of many millions oil dol
lars had been contracted, the payment of which
-ntaIlei heavy burdens on the people. There
WAS, therefore, up to 1865 no limitation on the
power at the legislature 10 contract debts, on the
part of the state. Tor such purposes. hut Il posi-
tive injunction justifyIng the exercise OF such
power.
Beside this our statutes were Oiled with acts
Incorporating railroad companies. In the char
acters OF which counties, SIlIes and towns were
authorized TO subscribe to their capital stock
and issue bonds in payment without submitting
either The uugStIun uf SulsrrInflDn or tnFs l,su-
ance eli bonds 10 the voters OF such nnnIcl-
pa!i'ies.
Under these laws subscriptions were freely
made. bonds Issued and debts contracted on be-
half of counties, cities and towns. without the
consent Of the people charged with their pay
mrnt.
Such WAS the condition of things when the
convention which framed the constitution of
l-t5 was called and the facility with which
acts OF this character werr passed, and debts
contracted under them. we're evils II WAS called
upon 10 deal with and remedy.
The convention not only lett out of the consti-
ta;ion prepared by it ana aI"pte, by 'he people
the injunction contained III the constitution OF
lS9G, THAT internal improvements should be-
forever encouraged in the stute,' but On the
contrary, positively forbid giving the aid or
lending the credit at the state to any corporation
IN the future. The prohibition Is contained ia
section Is, article II, AMI /, AZ follows: 1.-THE
credit of the state snail not he gwen or loaned IN
AID Of any person, association or corporation;
nor snail the state hereafter become n stock
holder IN an Corporation or association. except
Tor the purpose "i securing loans heretofore eN-
tented TO certain railroad corporations by the
state.'
ms section rnec;uuliy cured the evil OF any
further contracting vi debts in this respect ON
the part of tn state. whiHh anterior 10 that time
| The leg stature had So freely Inuulssh in. While
the binding oblig itlon Of such debts up to that
| time created WAS fully recognized and ample
provision made tor thsr payment. the making
| Of any more such WAS wholly Interiicted; and
| enterprise for tn. promotion of which these
! ,icLts had been incurred should be lett. 30 far a.
| the ~tatc Was concerned, to be prosecuted in the
future 10y private capital.
Having thus III posed OF this matter. the evil
arising from III" facility with which county. city
AMI town debts had been contracted under lie is
la,ive authorization WAS TO he di poset Of. This
| ne convention undertook to accomplish by sec
ton "a, which is as follows: The general as
Scmbly shall not authorize any county, city or
town to become - stockholder in. or loan Its
credit 10 any company. association or corpora
non. unl.s, two-thirts of the qualified voters of
such county, city or town. Vt Il regular or
p. ciai election, shall assent there.o."
THIS srctI,n follows Immediately after section
| l3. wticn, Us We have seen, had stripped the
state of all power to contract = debt on account
NJ railroads, or to become 3 stockholier therein,
except 10 secure n debt already contracted, aud
"mboiies the same spirit which Is to be found
IN section 10, though not TO the came extent.
| The convention by this section was attempting
10 impose limitations and conditions upon the
uow.r Of the general assembly. hilbert" un-
limited and unrestrained, and which has been,
IN very many Cases. SO exercised AS To authorize
county courts. CITY Councils and town trustees.
n their own discretion and without taking the
-ense al III" people, To subscribe 10 ia. stock Of
| corporations AMI issue bonds IN paw ment This
abuse of power was the mischief complained OF
and intended Ia ne remrdied by the section, and
10 interpret II 80 US to make the assent of two
thirds OF those actually voting mean the same
thing as the assent of tws-thirus ofaiI having =
right to vote. ami a. a fuiiillmrnl of the oonsti-
| tuilnnal prerequisite. to u Subscription, would.
we think, lie doing violence to the LANG usye en-.
pl"yrd and ignoring III" import of the words as
well AS the object sought TO be accomplished by
their use. constitutions are not designed for
metaphysical or logical subtleties; they are in
strumcnts of Il practical nature. designed for
c0mm"n Use AMI lifted tor common understand
| ing. The people must he supposed to read them
| with the help OF common sense AMI cannot per
mt IN them any reconcile meaning or extraor-
| binary gloss IStory. Con-. ). ASH
Following th,= doctrine, and applying the rule
that words are 10 be understood IN their usual
and commonly accepted sense. we must eonstrue
the word ''nSsent,' used in the I4th section. AS
meaning consent, actually expressed by an al
iirmatlv" vote, cast At any election authorized 10
be held. Estate. eS, rel VS.. Brassfeli, decided
at present { rm: State eX. rel. Va. Satterhcld. 81
Mo, 81; state vs.. Winklemeir, IS Mo, 1903
The constitution prcscrib"s, as q prerequisite
TO any subscription, that iwo-thIrds of the quail
fled voters shall assen; TO II. The act OF lsbo re-
guires only the assent of two-thirds OF those vo-
ting. and b"can." OF the r"puSnsnce to the con-
s%,itution we hold IT to he void.
It is urge,i that although the words voting At
sitch election may render the act obnoxious to
the constitution, it should not. for that reason,
be declared void, If by striking ont those words
the act would he made to conform TO it. We do
not concur in TINS view. II must. We think. be
conceded that section II does not enforce itself
and that no county court could he invested with
authority to issue honis except by u law enacted
In conformity .th its provisions. This the gem
eral assembly attempted TO do by the act of lSis.
but failed to do by prescribing Il rule fer the
guidance and government ofthe court unRuthor-
ized by the section. of such court could only
net In conformity with the authority conferred
bv the act.
In the case of ST. 10 and Denver City X. Il. vs..
buchanan county court. 70 Mo. 1855, II WAS held
that 'the constitution, except when special pro.
vision is made for that purpose. does not enforce
itself. 1t defines certain powers. but to make
them operative legislation Is necessary
In the case Of kirkbride vs.. Lafayette county.
decided nv Judge Dillon. at the November term.
1876, at Jefferson City. III uses the following Ian
gungs: without expressing any opinion wheih-
or there was a want OF power to issue the bonds
on the ground that the railroad company to
which the subscription was male and the bond
issued, WAS not one whose line of read was nesr
to the township. or If it he not near the town
ship. whether under The recital In the bond that
fact would avail to defeat Il recovery by . bone
hde holder for Valae, lcCncur in the result on
the ground that the case is controlled by Harsh
man vs. Rates county. decided hy the United
judgment oi the court in that case held the act,
March 90, 1898. reCit.d in the bonds rs the au-
thority for their issue, unconstitutional, and this
is the only act authorizing ownship.bonds like
sembly OF Missouri. The circumstance in this
case that twO-thirds of all the voters of the town
ship did in fact vote for the subscription Ia with
out legal significance. Gad cannot have the effect
to validate the act of March %. 1865, in respect
to the matter in which the supreme court holds
1t to conflict with the constitutional require
ment.'
The vice OF the words ''votinR at such cleo
ton IN the judgment of the conrt in the case
of HarshIuan vs.. Bates county. rendered the act
valid. rs IS shown by the opinion OF Justice
Bradley rendered therein, and by the opinion of
Chief Justice Waite. in County Of Csss vs. john