1. The powers of a railroad company in Missouri, in existence
prior to the adoption of the constitutional provision of 1865,
prohibiting subscriptions to the stock of any corporation by
counties, cities, or towns, unless two-thirds of the qualified
electors thereof shall assent, are not affected by such provision,
but remain the same as if it had never been adopted.
2. The power conferred by the statute of Missouri of March 10,
1859, upon a county in which may be any part of the route of the
Louisiana & Missouri River Railroad Company, to subscribe to
the capital stock of that company without submitting the question
of such subscription to the vote of the people, was not taken away
by the Amendatory Act of March 24, 1868.
3. Every reasonable construction of the language of the Act of
March 10, 1859, embraces the County of Callaway, and the road has
been actually located through it.
4. The subscription to the stock of the railroad company, having
been actually made by that county, under the authority of a
legislative act, in January, 1868, was legal, and the circumstance
that the bonds were issued at a later date does not impair their
A copy of the bonds and coupons in question, and a full
statement of the statutory provisions governing the case and of the
facts shown in the record, are set forth in the opinion of the
MR. JUSTICE HUNT delivered the opinion of the Court.
This is one of the bond cases of which so many have been brought
before this Court within the last few years. The County
Page 93 U. S. 568
of Callaway, in the State of Missouri, subscribed to the stock
of a railroad to be built through the county and issued its bonds
to raise the money to make payment therefor. The road has been
built, is in full operation upon the route selected by the county,
and the county holds its stock.
The county court making the subscription paid the interest for
two years upon the bonds and a portion of the principal. Another
county court has since been elected which refuses to pay either
principal or interest.
The plaintiff below, a citizen of the State of Kentucky, paid
his money for a portion of these bonds, and brings the present suit
to recover the amount. The court adjudged that the bonds must be
paid. The county appeals to this Court.
The bonds were issued under the Act of the General Assembly of
Missouri entitled "An Act to incorporate the Louisiana &
Missouri River Railroad Company, approved March 10, 1859,"
Acts Mo. 1858, p. 406, as amended by an Act approved
March 24, 1868, Acts Mo. 1868, p. 97.
Sec. 29 provided that
"It shall be lawful for the county court of any county in which
any part of the route of said railroad may be to subscribe to the
stock of said company and issue bonds of such county to raise funds
to pay the stock thus subscribed."
Sec. 22 of the Amendatory Act of March 24, 1868, is as
"It shall be lawful for the company to make out, locate, and
construct a branch of its road. . . . And all subscriptions to the
capital stock of said company intended to be used in the
construction of said branch shall be made in separate books."
On the 16th of January, 1868, the County Court of Callaway
County authorized a subscription of $500,000 to the capital stock
of the said railroad company.
The record shows that on the same day -- to-wit on the sixteenth
day of January, 1868 -- Harris, the authorized agent, subscribed
for the stock and received the certificates therefor.
The following is a copy of one of the bonds issued by the
county, with coupon attached, to raise the money to pay such
subscription, and which is now held by the plaintiff below:
Page 93 U. S. 569
"No. ___] STATE OF MISSOURI [$100"
"CALLAWAY COUNTY RAILROAD BOND"
"On the first day of January, A.D. 1873, the County of Callaway
promises to pay to the Louisiana & Missouri River Railroad
Company or bearer the sum of $100, to bear interest from date at
the rate of nine percent per annum, payable semiannually on the
first day of January and July in each year as per coupons attached
hereto, and after maturity to bear the same rate of interest until
paid, said principal sum and interest being payable at the Missouri
Bond and Stock Board of St. Louis, in the City of St. Louis, Mo.
This bond is issued by Callaway County by authority of the Act of
the General Assembly of the State of Missouri approved March 10,
1859, as amended by an Act approved March 24, 1868."
"Witness my hand, with the seal of said county affixed, this
first day of January, 1869."
"Presiding Justice of Callaway County Court
"Attest: W. H. BAILEY,"
"Clerk of Callaway County Court
"On the first day of January, 1873, Callaway County will pay to
the bearer the sum of $4.50 at the Missouri Bond and Stock Board of
St. Louis, Mo., interest on Railroad Bond No. ___."
"Presiding Justice of Callaway County Court
"W. H. BAILEY"
"Clerk of Callaway County Court
If this subscription was made by virtue of the Act of March 10,
1859, before referred to, it is not contended that the bonds are
invalid. This is understood to be conceded in the second point made
in the brief of the plaintiff in error.
On the other hand, if the subscription depends solely for its
validity upon the Act of March 24, 1868, it is contended that the
subscription was without the authority of law, and that the bonds
issued in its fulfillment are void.
The distinction is this: on the 8th of March, 1859, a county
might legally be empowered by the Legislature of Missouri to make a
subscription to railroad stock upon its own motion and to issue
bonds in fulfillment of the obligation. Before the 24th of March,
1868 -- to-wit, in July, 1865 -- a constitutional
Page 93 U. S. 570
provision was adopted in these words:
"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."
It is not pretended that the assent of the voters of Callaway
County to the subscription in question was given.
The fact upon this branch of the case are, that the subscription
to the railroad stock was authorized by the county court, and
actually made by their agent before the act of March, 1868, was
passed; that the certificates of stock in said company were issued
to and received by the county at the time of making such
subscription, but that the bonds of the county in question were not
issued until a date after the passage of the latter act -- to-wit,
in January, 1869 -- and that the original charter was in several
particulars altered by the amending act of 1868.
1. It has been held in many cases by the Supreme Court of
Missouri that the provision of the constitution of 1865 prohibiting
loans or subscriptions for stock except with the assent of the
electors is prospective, not retroactive; that the charter of a
company which is in existence before the adoption of the
constitutional provision is not affected by it, but the powers
given by it remain as if no such constitution existed. State v.
Macon County Court,
41 Mo. 453; Smith v. County,
Clark, 54 id.
58. Although put into execution by making
the subscription or issuing the bonds after the adoption of the
constitution, the power remains valid.
2. The constitution of 1865 contains, in connection with the
provision already quoted, the following:
"All statute laws of the state now in force not inconsistent
with the constitution shall continue in force until they shall
expire by their own limitations or be amended or repealed by the
In State of Missouri v. Cape Girardeau & State Line
48 Mo. 468, it was held that the constitutional
provision prohibiting special enactments did not extend to
amendments of laws in force when it was adopted, but that
additional power given to the Cape Girardeau Railroad, by the means
Page 93 U. S. 571
an amendment to its charter, was a lawful exercise of authority.
The cases before cited show that the act we are considering is not
inconsistent with the constitution as it continued in force after
its adoption as before.
It is difficult to discover any principle which can distinguish
an amendment to the charter of the Louisiana & Missouri River
Railroad Company, altering its terms and conditions within its
original limits, and of the general nature and scope of its
original charter, from the Cape Girardeau case. The case of
State v. Saline Co.,
51 Mo. 350, does not conflict with
3. The Act of March, 1868, referred to in the Callaway County
bonds, in connection with the Act of March 10, 1859, was an
amendment of the latter act.
It expressly declares itself to be an amendment of the first
act. Its title is,
"An Act to amend an act entitled an act to incorporate the
Louisiana & Missouri Railroad Company by increasing the amount
of the capital stock of the said company defining more explicitly
the power of the board of directors to fix the western terminus of
said road authorizing the location and construction of a branch
road and conferring upon said board the necessary powers to carry
into effect the several objects contemplated by their charter, and
also by striking out secs. 11, 18, 30, and 31 of said act."
Laws of Mo. 1868, p. 103.
That the title may properly be examined and is competent,
see Cin. L. I. C. v. Abbott,
39 Mo. 181; State v.
392; 14 id.
The several objects appear to be legitimate subjects of
amendment, and it would ill become us to impute to the legislature
of a state an intention to evade the provisions of its own
constitution under the guise of an amendment. There is no
indication of such an intention in the case we are considering.
The form in which the amendment is made, by a new act
throughout, is explained by that article of the Missouri
Constitution which requires that no amendment of an act can be made
by striking out and inserting any words, but that "the act or part
of act amended shall be set forth and published at length as if it
were an original act." Accordingly, the amendment
Page 93 U. S. 572
is here made not by making provision merely for the new points
but by reenacting the whole of the original act in all its details,
with the alterations, where they are intended to be made. A
collation of the provisions of the two acts make this point quite
The amended charter attaches to itself all the qualities and
privileges of the old one. State v. Greene Co.,
540; State v. Callaway Co.,
v. Sullivan Co., id.,
This view is an answer to the objections that the transfer of
the subscription was made to a branch road, and in issue of bonds
made under that subscription, and that such authority only existed
under the power conferred by the act of 1868. The branch was the
original road, so far as Callaway was concerned, with a change of
name simply, and the amendment became a part of the original
We find no difficulty, therefore, in holding that a county
included in the terms of the original act had power upon its own
authority to subscribe for the stock, and that a submission of the
question to the electors of the county was not necessary.
The power of this county to subscribe as one of the counties
intended to be included within the terms of the original act is
The twenty-ninth and thirty-fifth sections are as follows:
"SEC. 29. It shall be lawful for the county court of any county
in which any part of the route of said railroad may be to subscribe
to the stock of said company, and it may invest its funds in stock
of said company and issue the bonds of such county to raise funds
to pay the stock thus subscribed, and take proper steps to protect
the interest and credit of the county. Such county court may
appoint an agent to represent the county, vote for it, and receive
its dividends, and any city, town, or incorporated company may
subscribe to the stock of said railroad company and appoint an
agent to represent its interest, give its vote, and receive its
dividends, and may take proper steps to guard and protect the
interest of said city, town, or incorporation."
"SEC. 35. Said company shall have power to mark out, locate, and
construct a railroad from the City of Louisiana, in the County of
Pike, by the way of Bowling Green in said county to some suitable
point on the North Missouri Railroad intersecting said road between
the southern limits of the Town of Wellsburg in Montgomery
Page 93 U. S. 573
County, and the northern limits of the town of Mexico, in
Audrain County, thence to the Missouri River at the most eligible
point, on a line the most suitable and advantageous as regards
distance, grade, cost of road, and permanent value of same."
The starting point of the road was fixed at Louisiana, in the
County of Pike. Two points only in the route were indicated,
to-wit, Bowling Green, and the crossing of the Missouri Railroad
between the outer limits of the towns of Wellsburg and Mexico. The
termination was to be upon the Missouri River at the most eligible
point, distance, grade, cost of road, and permanent value
considered. The County of Callaway furnished all the requisites
thus set forth. The road as ultimately built did pass through
Bowling Green, across the Missouri road between the towns of Mexico
and Wellsburg, thence through the whole length of the County of
Callaway to a point opposite Jefferson City on the Missouri River.
We discover nothing to show that this point might not properly have
been decided by the company to have been a more suitable and
advantageous place at which to terminate its road than any other
upon the Missouri River.
The statute already quoted provides that "It shall be lawful for
the county court of any county, in which any part of the route of
said railroad may be, to subscribe to the stock of said company."
"May be" what? This expression is incomplete, and is to be
construed with reference to the situation of the subject-matter. If
used in a statute where a railroad already built was the subject,
it would no doubt refer to the presence or existence there of the
road. It would be equivalent to the word "exists," or "is built,"
or "in operation," or the like. But when used in reference to a
railroad not yet built, not located or surveyed, and indeed not yet
organized, it must have quite a different meaning. Certain points
were given for the location of the road, as that it must start from
a city named, it must pass through one place mentioned, and must
pass between two others, and must terminate on the Missouri River.
The map given in evidence shows that there was a large room for
choice thus left in the company. It might pass through Howard and
Boone Counties, terminating at Glasgow and omitting Callaway, or it
might pass through Callaway, terminating
Page 93 U. S. 574
opposite Jefferson City, omitting Howard and Boone. This was the
intention of the legislature, for the double purpose, no doubt, of
enabling the company to select the best route and of stimulating
rivalry among the different localities which might wish to obtain
the benefit of the location. A broad construction of the language
would be to say that it meant to authorize a subscription by any
county in which the road may by law be located. This would include
all the counties before named. It might be held to authorize a
subscription by any county in which the road may be in fact
It is perhaps not necessary to pass upon this point with any
more precision than to say that upon any reasonable construction of
the language, it embraces Callaway, which was one of the possible
sites, and a site ultimately occupied, in fact.
We are of the opinion, therefore, that the subscription actually
made by the County of Callaway in January, 1868, was legal, and
that the circumstance that the bonds were issued at a later date is
an immaterial one.
We are of the opinion also that the amendments of the charter,
and the subsequent action by which the portion of road from Mexico
through Callaway County, and under such amendments was made a
branch road, and the portion from Mexico to Glasgow was called the
main road, and that the bonds were issued both under the act of
1859 and the act of 1868, if such were the fact, do not affect the
case. The latter act is an amendment and continuation of the
former, and refers to what was then termed a branch road.
Nor do we perceive that it is necessary to invoke the principle
of bona fides.
If our views are sound, the bonds were legally issued under the
authority of a legislative act and are valid in the hands of any
one who has a legal title to them.
We are of the opinion that the case was well decided by the
MR. JUSTICE MILLER, with whom concurred MR. JUSTICE DAVIS, MR.
JUSTICE FIELD, and MR. JUSTICE BRADLEY, dissenting.
I dissent from the judgment of the Court on the ground that
Page 93 U. S. 575
the subscription of stock to the railroad company in this case
could only be made under the Amendatory Act of March 24, 1868, and
that the constitution of the state then required a vote of the
county to make such subscription valid. As there was no such vote,
and no recital in the bond or elsewhere to show that there was, the
bonds were void.