Leavenworth & Des Moines Railroad v. County Court of Platte County

Holmes, Judge, delivered the opinion of the court. This is an application for a mandamus upon the County Court of Platte county, to require the court to issue the bonds of the county in pursuance of an alleged subscription to the stock of the Leavenworth and Des Moines Railroad Company, under “An act to incorporate the Platte City and Des Moines Railroad Company,” approved January 4, 1860, and certain other amendatory acts. (Adj. Sess. Acts 1859-60, p. 443, § 6; id. p. 88, §§ 1, 2; R. C. 1855, p. 427, §§ 30-35.) The case depends upon the construction which is to be given to the first-named act, by which the company was chartered. The sixth section gives the County Court a general power to subscribe stock. By the eighth section this power is expressly limited, and made subject to the provisions of the general railroad law (R. C. 1855, p. 427, § 30), which provides that the County Court “may, for information, cause an election to be held to ascertain the sense [175] of the tax-payers ” as to such subscription. No such election was directed. This was a necessary condition of the power to subscribe. That all the sections of the act are to be construed together is a well-settled rule of construction. The word “may,” in this clause, must be interpreted to mean “ shall.” It is a power given to public officers, and concerns the public interest and the rights of third persons, w'ho have a claim de jure, that the power shall be exercised in this manner for the sake of justice and the public good. (Newburg Turnpike Co. v. Miller, 5 Johns. Ch. 113; Blake v. Portsmouth and Concord R.R., 39 N. H. 435; Malcolm v. Rogers, 5 Cow. 193; 2 Salk. 609.) This •construction is confirmed by the act passed at the same session amendatory of this thirteenth section, and making the act read “ shall” instead of “may.” This amendment may be taken as declaratory of the true meaning of the former act. It follows that the subscription, as made, was without the authority of law, and void. If the subscription had been lawfully made, it might have become the imperative duty of the.County Court to issue these bonds, and the performance of that duty might have •been enforced by the writ of mandamus. In the positive requirement that the sense of the tgx-payers should first be taken, it is necessarily to be implied that the power was not to be exercised without their consent and authority. In this view of the matter, it is apparent that the case of The Missouri and Mississippi Railroad Company v. The County Court of Macon county, decided by this court at the October term, 1867, and other cases relied upon by the petitioner, relating to the question of a repeal of a special act by a subsequent general law, have no application to this case. This conclusion being decisive of this application, it becomes unnecessary to consider further the other points which have been presented in the argument. Peremptory mandamus refused. The other judges concur.