State ex rel. Barlow v. Dallas County Court

Sherwood, C. J.

The act of March 23rd, 1861, (Sess. 1860-61, p. 60,) we regard as decisive of this case, so that it is unnecessary to pass upon any other point which has been discussed. Section 2 of that act provides : “ 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.”

Strange as it may appear, that act, though cited by counsel, was never discussed until the year 1878, when I undertook to discuss the force and effect of its prohibitory provisions in State ex rel. Wilson v. Garroutte, 67 Mo. 445. In that case I endeavored to show that that act, by the very force of its terms, was applicable to existing charters, as well as to those which might subsequently be created; that in short, it applied to “ any railroad company,” and that by that act it was made a misdemeanor, a penal offense, for the “ county court of any county ” to subscribe, etc., unless a vote had been first taken, as in that section prescribed. I endeavored also to show that even though no prohibitory words had. been employed in the act, yet the fact that a penalty having been provided thereby, (1 Russ, on Crimes, p. 45 ; 1 Wag. Stat., pp. 487, 488, §§ 17, 21, 23,) that this of itself implied prohibition, and I cited a number of authorities supporting that view. Since then, my attention has been called to an opinion of this court delivered by Mr. Justice Napton, in Doivning v. Ringer, 7 Mo. 585, where a promissory note given for a town lot before the plat of ‘the town was acknowledged, filed, etc., as required by statute, was held “ absolutely void,” both at law and in equity, even in the hands of a transferee; and the' language of Lord Holt was in that case, quoted with approval, where he says : “ Every contract made for or about any matter or thing which is prohibited, and made unlawful by any statute, is a void contract, though the statute itself doth not mention that it shall be so, but only inflict a penalty on the defaulter; because a penalty implies a prohibition, though there are no prohibiting words in the statute.” It would appear not unreasonable that the same legal principles should govern where a railroad bond was issued contrary to law, as well as where & promissory note is executed in like disregard of the legislative will.

It is unnecessary to pursue this subject further. I refer for a more extended discussion of it to my opinion in the former case, State ex rel. Wilson v. Garroutte, supra. Henry and Norton, JJ., while concurring in the majority . opinion in that case, gave no expression of their views as to the force and effect of the act of 1861. Since then they have concurred in the views- which I heretofore had expressed in relation to that act. As the alleged subscription to the capital stock of the Laclede & Eort Scott Railroad Company was made without first submitting the matter to a vote of the people, we must approve the action of the circhit court in its denial of a peremptory, and its dismissal of the alternative writ, and affirm the judgment.

Henry and Norton, JJ., concur. Napton and Hough, JJ., dissent.