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RITCHIE v. FRANKLIN COUNTY.

October 1, 1874

RITCHIE
v.
FRANKLIN COUNTY.



APPEAL from the Circuit Court for the Eastern District of Missouri; in which court one Ritchie filed a bill against Franklin County, in the said State, and various persons, holders of its bonds, such as are hereinafter described, to enjoin the county from collecting a special tax levied to pay the interest on the said bonds, and to compel the holders of them to surrender them for cancellation; he, Ritchie, the complainant, alleging that by the constitution of Missouri the same were unconstitutional and void. The case was thus: The constitution of Missouri ordains, 'Article 1. No law retrospective in its operation can be passed. 'Article 4. The General Assembly shall not pass special laws, . . . establishing, locating, altering the course or affecting the construction of roads, or the repairing or building of bridges; or legalizing, except as against the State, the unauthorized or invalid acts of any officer. 'The General Assembly shall pass no special law for any case for which provision can be made by a general law; but shall pass general laws providing, so far as it may deem necessary, for the cases enumerated in this section, and for all other cases where a general law can be made applicable. 'Inferior tribunals, to be known as County Courts, shall be established in every county for the transaction of all county business.' These provisions of the State constitution being in force as fundamental law, the General Assembly, February 16th, 1865, passed an act empowering and authorizing the County Courts, for the purpose of opening and keeping in repair roads, and in order to raise the necessary funds to pay the expenses of any or all of said improvements, to borrow money on the credit of the county, and to issue bonds of the same, 'but,' said the act, 'the said bonds shall not bear interest at a higher rate than six per cent., unless by agreement between the parties, nor shall said bonds, or any of them, be sold or disposed of at less than par value, that is to say, the amount called for on their face.' The act proceeded: 'SECTION 3. The said bonds may be made transferable in such a manner as the County Court by its order may direct, and the courts shall be authorized to levy a sufficient amount of revenue annually to pay the accruing interest on said bonds, and for that purpose may, if it should be necessary, levy a special tax. 'SECTION 4. Before any expenditure shall be made by the County Courts for the purposes contemplated by this act, the County Courts may, for the purpose of information, submit the amount of the proposed expenditure to the voters of the respective counties, and if a majority of the voters shall approve of such proposed appropriation, then the court may proceed and improve the roads as herein contemplated. If a majority shall vote against such an appropriation, then nothing further shall be done therein within twelve months,' &c.*fn1 Another act, having provisions in words of the same effect, was passed in 1866. In consequence of the act of 1865 declaring that the submission to the people of the amount of the proposed expenditure was 'for the purpose of information,' the County Court of Franklin construed the provision as leaving it to their discretion whether they would submit any such question to the people. And being now engaged in a general scheme for macadamizing the roads of the county and bridging the streams in it, the County Court issued a quantity of bonds without submitting the matter to the people in any way. The validity of the bonds being denied, the question whether they were valid or not, came before the Supreme Court of Missouri, in the case of The Leavenworth and Des Moines Railroad Company v. The County Court of Platte,*fn2 where it was decided that the bonds were void. Thereupon, the road having been now built, the Assembly, on the 21st of March, 1868, passed a new act to authorize County Courts to issue bonds for the purpose of paying for the building of bridges and macadamized roads heretofore contracted for and built. This act thus enacted: 'SECTION 1. In all cases where County Courts have heretofore laid out, surveyed, and commenced the building, and have built macadamized or other roads, or have . . . built bridges, or other necessary work in their respective counties, the County Courts are hereby authorized to borrow money on the credit of the county, and to issue bonds of the county with coupons attached, &c.; but said bonds shall not . . . bear interest at a higher rate than ten per cent., for the purpose of paying for the work done and contracted for in their respective counties. 'SECTION 2. Said bonds may be made transferable in such manner as the County Court may direct, and the courts shall be authorized to levy a sufficient amount of revenue annually to pay the accruing interest on bonds authorized by this act; and for that purpose may, if it be necessary, levy a special tax. 'SECTION 3. All acts or parts of acts inconsistent with this act are hereby repealed.' And on the 23d of March, of the same year, it passed a new road law, in the main like the old one, but with some modifications, and making it plainly peremptory on the County Courts to take a vote of the people before issuing bonds. After the passage of the act of March 21st, 1868, the County Court of Franklin County entered an order on its records to issue bonds to the contractors to pay for the work done on the road in question, and thereupon the former bonds were surrendered and cancelled, and a like number issued and purchased by the defendants in due course of business. These new bonds were made payable to the bearer, and purported on their face to have been issued by the County Court of Franklin County, in pursuance of the act last above mentioned. Roads similar to the one for which these bonds were issued were building by the contractors who were building it, at the same time for the same county; and the defendants had no means of knowing whether the bonds they held were issued to pay for the particular road in controversy. They bought them in good faith for value without notice of any infirmity of title. The court below, holding the act of 21st of March constitutional, dismissed the bill. The question of the constitutionality of the act, it may be here added, had been before the Supreme Court of Missouri in a case between other parties; and that court held that the act conferred 'original power' to issue the bonds without reference to previous or contemporary laws, and also that it was 'curative' and legalized the unauthorized action of the County Court and validated the new bonds issued. The case came here on exceptions to the answer, and the question to be passed on was whether there was authority to issue the bonds in controversy.*fn3

The opinion of the court was delivered by: Mr. Justice Davis delivered the opinion of the court.

Mr. T. W. B. Crews, for the appellants:

I. The bonds in controversy purport to have been issued under authority of the act of March 21st, 1868.

They cannot exist under that act.

1. The act gave no original power. This is evident from its terms. Of itself, it was incomplete. It made no provision for the payment of the principal of the bonds, and it expressly recognized the binding force of all acts and parts of acts, under which roads may have been contracted for and built, except so far as they conflicted with its own provisions. Nothing in the act has the effect to authorize the issue of bonds without the vote of the people.

The act of 1865, requiring a vote before expenditures should be incurred, was in force when the act of March 21st, 1868, was passed, and the whole law was re-enacted at the same session, with some modifications, and among others a provision, making it plainly peremptory on the County Courts, in terms, to take a vote of the people before issuing any bonds for the purposes expressed in the act. So far from relaxing, the legislature evidently intended to adhere more rigidly to the policy previously declared on that subject, and meant to restrain within narrower limits the power of County Courts.

The several enactments of the acts of 1865 and 1868 should be construed to be in pari materi a. Their several provisions can stand together and can be consistently reconciled. There is nothing express or implied that would lead to the conclusion that the one abrogated or was designed to abrogate the other.

The purpose of the act of March 21st, 1868, was to authorize the issue of bonds bearing ten per cent. interest, and the sale or negotiation of the same below the par value thereof; neither of which was allowable under the previous law; and in these particulars only was the law changed by this act. Moreover, the act can properly apply only to work legally done, and legally contracted for. No other sort of contract is known to the law. And such contract could not have been made but by virtue of and in pursuance of some previous existing legal authority. The general law of 1865 and 1866 conferred such authority, and it was the only law that did confer it.

Had it been intended to authorize the expenditures without a vote, this purpose would have been indicated in either the title or the body of the act. If the omission to take a vote of the people was a defect, and such a one as needed further legislation, certainly the legislature would have pointed to this defect in some appropriate and intelligible language or terms.

2. Nor can the act of March, 1868, be construed to be 'curative' or 'confirmatory.'

It is conceded that up to the time of the approval of the act, the bonds then issued were absolutely void. The County Court had broken down the barriers which the law had raised, had disregarded the authority which had called them into being, and had usurped a power which belonged only to the people. Can we conclude that the legislature, in this general way, proposed to cure or confirm their proceedings, and to authorize the issue of bonds to pay for work done or to be done without the sanction of the people? The act does not purport to be curative. The aim of a curative act is always special and particular. Although it may be general in its application to a class of things or objects, it is pointed and distinctive as to the cause or the supposed necessity of it.

The theory of the act of March 21st, 1868, as maintained by the respondents is that the County Court had acted without authority in incurring such expenditures and issuing bonds as a means of paying them. If they had not, then there was no necessity for this act, beyond the purpose of regulating the rate of interest and the authority to sell the bonds for what they would bring in the market, in the class of cases specified in the act. If it were necessary or expedient in this class of cases to authorize the issue of bonds with a higher rate of interest, and without the restrictions imposed by previous laws–matters merely incidental and subordinate–then it was surely of greater importance in the estimation of the lawgiver, that there should have been adequate authority to issue the bonds; that the bonds themselves should have the required sanction to give them validity.

II. The act in question as construed by the other side is void under the ...


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