Bradley v. Franklin County 65 Mo. 638

Hough, J.

The plaintiffs who are non-resident tax payers to the county of Franklin, filed a petition in the nature of a bill in equity, asking that certain bonds issued by the county court of Franklin county, under the act of March 21st, 1868, entitled “ an 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,” made payable to Budd & Becker or bearer; and delivered to certain of the defendants, be declared void, and that the same be required to be delivered up to be canceled, and praying for an injunction to restrain their negotiation, sale or transfer, and the assessment or collection of any tax to pay the same. To this petition there was a demurrer, for want of facts sufficient to constitute a cause of action, which was sustained by the court, and final judgment rendered thereon, dismissing plaintiff’s petition, and plaintiffs have brought the case here by writ of error.

Plaintiffs, in their petition, expressly aver that the bonds in question were issued under the act of March 21, 1868, and base their right to relief upon the alleged un*639constitutionality of that act; and after a critical examination of the petition, we have been unable to discover that they base it upon any other ground. The statement in the petition that the act of 1868 is unconstitutional, is an averment of matter of law only, and it is not admitted by the demurrer. On the facts- stated, the plaintiffs are not entitled to any relief. That the act in question is constitutional, and that it authorized the issuance of bonds by the county court in cases like the present, was expressly decided by this court in the case of Steines et al. v. Franklin County et al., 48 Mo. 167, and by the Supreme Court of the United States in the case of Ritchie v. Franklin County, 22 Wallace 67. The material facts in those eases are identical with the facts in this, and those cases must be held to be decisive of this. The judgment of the circuit court will be affirmed. All concur, except Sherwood, C. J. and Henry, <7., who are of opinion that the decision in Steines et al. v. Franklin County, supra, should not be adhered to.

Aeeirmed.

Henry, J.,

Dissenting.—I do not concur in the foregoing opinion. Expressing no opinion as to the constitutionality of the act of 1868, but conceding its constitutionality, I do not regard it as a curative, but an enabling act, not legalizing an illegal and unauthorized act-of the county court in contracting a debt, but enabling it to borrow money, or issue bonds to pay a debt legally incurred. There is nothing in the title or body of the act which expressly or by fair implication legalizes unauthorized and illegal acts, and if it had been intended for any such purpose, it could, and I presume, would have been expressed. It seems to me a violent construction, which holds that it applies to other than turnpikes and bridges, which the county court had authority to contract for building. A court should not presume that the General Assembly intended to validate void and illegal acts, when there is nothing either in the title or body of the act, to indicate any such legislative intent.