483; Dwarris on Statutes, 533. The power to subscribe contained in the charter, was not made subject to the provisions of the general railroad law, as was the case in Leavenworth and Des Moines R. R. Co. v. County Court of Platte Co., 42 Mo. 171. The act of 1861, which, it is claimed, repealed the provision in the railroad charter authorizing counties to subscribe without a vote of the people, is as follows: "An act supplemental to an act entitled 'an act to authorize the formation of railroad associations and to regulate the same,' approved December 13th, 1855. Be it enacted by the general assembly of the State of Missouri, as follows: "Section 1. That whenever the county court of any county in this State, or the city council of any city, shall be satisfied that the citizens of said county or city desire to subscribe to the capital stock of any railroad company, it shall be the duty of such county court, or city council, to order an election to be held in the said county or city in accordance with the provisions of the 30th section of the above recited act, giving at least thirty days' notice of the time and place of holding such election, by written or printed handbills, posted up in such election precinct, in such county or city, by the sheriff or marshal thereof, and if a majority of all the resident voters of said county or city, who are qualified to vote for county and State officers, and who shall vote at such election, shall cast their votes for subscribing said stock, then the county court or city council shall subscribe such stock to said road. "Section 2. It shall not be lawful for the county court of any county to subscribe to the capital stock of any railroad company unless the same has been voted for by a majority of the resident voters who shall vote at such election under the provisions of this act. "Section 3. No person shall be exempt from the payment of his pro-rata share of any tax levied by the county court or city council, because such person shall hold stock in such company. This act shall take effect and be in force from and after its passage. Approved March 23d, 1861." This is the entire act. It is assumed in the State ex rel. Wilson v. Garroutte, 67 Mo. 445, that because this act contains prohibitory words, it repealed the special provisions of the charter of the Laclede and Fort Scott R. R. Co. I am unable to see any ground for this assumption. The act, it will be observed, has no repealing clause, and does not profess to repeal any special law theretofore passed on that subject. It was merely an amendment of the general law, and the prohibition contained in the second section related only to subscriptions provided for by the 30th section of the general law as amended by the 1st section, and not to subscriptions made under special charter provisions. This is obviously the This sec proper and natural construction of this act; and the very language of the act itself supports this construction. The 1st section is but an amplification of the act of January 14th, 1860, and authorized subscriptions in all cases, and to any road, whenever a majority of the resident voters of the county voted therefor. tion does not forbid particular railroad companies, thereto duly authorized by act of the legislature, from receiving subscriptions without such vote; and it is certainly unnecessary to cite authorities to show that a general affirmative authority to any county to subscribe for the stock of any railroad company, on certain conditions, is not inconsistent with, or repugnant to, a special authority to subscribe to a particular road without conditions. Section Ï, therefore, must be held to apply only to railroad subscriptions for which no special provision had been made in the charters of railroad companies. Now, the prohibition contained in the 2d section is not directed against subscriptions authorized by special charters, but forbids any subscription from being made under the 1st section, "unless," in the language of the statute, "the same has been voted for by a majority of resident voters who shall vote at such election under the provisions of this act." The words I have italicised plainly point to the subscriptions authorized by the 1st section, as those which come under the prohibition contained in the 2d section. These views are, I think, conclusive of the subject. But apart from this, every consideration which, in my judgment, can induce a court to invoke the doctrine of stare decisis, demands that we should adhere to the decision of this court in the case of Smith. Clark County, 54 Mo. 58. In that case the act of 1861 was relied upon, was examined by this court, and was, doubtless, carefully considered, and the court decided that it did not effect the repeal of the privilege of subscription without a vote of the people contained in special charters. In the same case, the same question was again considered, on a motion for rehearing, and the same conclusion was again reached and was distinctly restated in the opinion on the motion. In the opinion first delivered, the court, after referring to the several acts above cited and the decisions applicable thereto, said: "So that the provisions of the revised code of 1855, and the amendatory acts of 1860 and 1861, and the constitutional prohibition, and the legislative adoption of that prohibition immediately after its passage, have been held by repeated adjudications, and without any conflicting opinions of the court, or any individual judge thereof, so far as the reports show, not to effect the repeal of the privilege contained in special charters. That this was understood to be the law of this State appears also to have been recog nized by the legislative department of the government, for in 1872 the legislature passed an act entitled 'An act to repeal certain sections of law granting to the county courts and other corporate bodies the power to subscribe stock to railroad companies.' This act was approved January 30, 1872, and specifically repeals certain designated sections in certain acts particularly specified, and including among the twenty or thirty charters enumerated, the charter of the Alexander and Bloomfield Co. This was, or would have been, a mere act of supererogation, if it had been understood or supposed that previous legislation on the subject had already effected this object. Thus it will be seen that, up to January, 1872, the decisions of the Supreme Court had been acquiesced in, and no doubt acted on, by the railroad corporations and the municipal authorities of various counties, cities and towns, by virtue of the provisions in the charters of railroad companies. After the acts of 1855, 1860, 1861, 1865, the subject was regarded as res adjudicata, and upon this view millions of dollars have been invested. Whatever, therefore, might be the opinion of this court, or of any individual judge, had the question come up for examination as an open one, we are all of the opinion that it is now too late to disturb the received con struction." In the opinion on the motion for rehearing, after stating that the charter of the company authorized subscriptions to be made without a vote of the people, the court said: "The next point was, whether this provision of the charter had been repealed by any subsequent legislation, or by the new constitution of 1865. This point we considered settled by repeated decisions of this court, to the effect that no subsequent act of the legislature or the constitution had repealed that provision in the charter. On the faith of these decisions large amounts had been invested, and we considered that question had been put at rest, and had become a rule of property which we had no right to disturb." The effect of the act of 1861, upon special charters previously granted, cannot, therefore, be regarded as a new question in this court. The opinion of Judge Napton in Downing v. Ringer, 7 Mo. 585, cited in the opinion of the court in this case, has no possible relevancy to the point under discussion. The question before us now, is not as to the effect of a prohibition, but whether there has been any prohibition as to the subscription in controversy. I am of opinion that the act of 1861 does not repeal the privilege contained in the charter of the Laclede and Fort Scott R. R. Co., and in this opinion Judge NAPTON concurs. WILLIAMS v. LOUISIANA. (103 United States Reports, 637. October Term, 1880.) In a suit brought, in one of her courts, by the State of Louisiana, seeking to restrain payment on the bonds issued to the New Orleans, Mobile, and Chattanooga R. R. Co., under an act of the legislature approved April 20, 1871, and praying for relief, upon the ground that the act was in violation of the constitutional amendment of 1870, which declares "that, prior to the first day of January, 1890, the debt of the State shall not be so increased as to exceed twenty-five millions of dollars," which limit, it was claimed, had been attained before the passage of the act, a holder of some of the bonds, 'who was permitted to intervene, set up that they were issued in discharge and release of valid and then subsisting obligations of the State, which, prior to the adoption of the amendment, had been created under her legislation. Held, that this court has jurisdiction to determine whether the amendment, as construed by the court below and applied to the facts of the case, impairs the obligation of a contract. Held, further, that the act is in conflict with that amendment, inasmuch as it authorized the creation of a new debt on a new consideration, in excess of the prescribed amount, and that the bonds are void. ERROR to the Supreme Court of the State of Louisiana. Mr. Simon Sterne and Mr. George W. Biddle, with whom were Mr. A. Sydney Biddle and Mr. James Lowndes, for the plaintiff in error. Mr. Gustave A. Breaux and Mr. James Lingan for the defendant in error. MILLER, J.-A suit was brought by the Attorney-General of Louisiana in the name of the State, in the Superior Court of the District for the Parish of New Orleans against Charles Clinton, State auditor, and Antoine Dubuclet, State treasurer. The petition enumerated a great number of claims against the State which it declared to be illegal and void, and which it was feared the auditor would allow, and the treasurer pay, against which action the petition prayed for an injunction. Among these claims, the only one which demands our attention was one for $2,500,000 of State bonds issued under the act of the legislature of April 20, 1871, entitled "An Act to relieve the State from its obligation to guarantee the second mortgage bonds of the New Orleans, Mobile, and Chattanooga R. R. Co." While there were several grounds of objection stated in the petition, the only one which concerns us is the allegation that the issue of these bonds was an attempt to create a debt of $2,500,000, when the limit to the State debt of $25,000,000, as fixed by the amendment to the State Constitution of 1870, had al ready been exceeded. In this suit the New Orleans, Mobile, and Texas R. R. Co., successors to the New Orleans, Mobile, and Chattanooga R. R. Co. intervened, and the temporary injunction was dissolved. On appeal to the Supreme Court the order dissolving the injunction was reversed, and when the case came back to the court of original jurisdiction for further proceedings, Williams and Guion were permitted to intervene for their interest as holders of three of the bonds of $1000 each, the payment of which was sought to be enjoined in the suit. The Superior Court decreed the bonds to be void, and perpetually enjoined the treasurer from paying them on their interest coupons, and on appeal to the Supreme Court that decree was affirmed. It is this final judgment of the Supreme Court.of the State that the present writ of error sued out by Williams and Guion seeks to re view. The reason why the State Court held these bonds void is that by an amendment of the Constitution of the State, adopted in 1870, no debt should be thereafter created which, added to the debt of the State then existing, would swell the total amount above $25,000,000; and that amount had been reached before the issue of the bonds in question and before the act of the legislature under which they were issued had been passed. Counsel for defendants in error insist that the writ of error should be dismissed for want of jurisdiction. They say that the suit is one in the courts of their own State, to which the State itself is a party plaintiff, against its own officers, and the decision rested entirely on the construction of the Constitution and laws of the State, and that no question of Federal law is involved in it. If this be strictly true, their contention should be sustained. In answer to this, it is said that the bonds held by the intervenors were founded on an obligation which existed prior to the constitutional amendment, and did not, therefore, add to the debt which existed when that amendment was adopted. This is denied by the counsel for the State, and upon the solution of this question the whole case depends, both as to its merits and as to the jurisdiction of this court. For it is insisted by plaintiffs in error that if their contract existed in effect before the amendment, the amendment as construed by the State court impairs the obligation of that contract, and this court can review that question; while if the bonds. constitute a new and independent contract, the constitutional provision was properly applied to them and the judgment is right. As this is the question we are to decide, and as it was raised and insisted on by the plaintiffs in error in the court below, we think this court has jurisdiction. The bonds in question were, as we have already said, issued 3 A. & E. R. Cas.-9 |