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vote for the change.” The court then refers to Bassett v. The Mayor of St. Joseph (37 Mo. 270), State v. Binder (38 id. 450), and State v. Winkelmeier (35 id. 103), and says: “In none of these cases, however, was there any examination of, or construction given to, the precise language of the constitutional provision now under consideration. ... The present case, however, presents very different considerations. The question of removing county seats was regarded by the framers of the Constitution as of sufficient importance to require very stringent provisions in that instrument, and an examination of the laws in force on this subject, at the time of the adoption of the new Constitution, will show the great importance of requiring a strict compliance with its provisions." We think, then, we were not in error in supposing that the court believed thero was an essential difference between the two provisions of the Constitution, and especially so as the judge who delivered the opinion of the court in State v. Sutterfield, by his dissent in the later cases of State v. Brassfield and Webb v. La Fayette County, clearly indicates his disapproval of the effect upon the question now under consideration which was then given that case.
The legislative recognition of the difference between these two clauses of the Constitution is equally apparent. The Constitution went into effect in July, 1865, and it became the duty of the legislature, at its next session, which commenced in November, to adapt the old laws to the new order of things. In this connection, it must be borne in mind that the provision for a registration of voters was first introduced into the policy of the State by this new Constitution.
The then existing law regulating the removal of county seats provided that “whenever three-fifths of the taxable inhabitants of any county, as ascertained by the tax-list made and returned last preceding the application, shall petition the county court praying a removal of the seat of justice thereof to a designated place, the court shall appoint five commissioners,” &c. Rev. Stat. Mo. 1855, p. 514, sect. 1. To meet the requirements of the new Constitution on this subject, an election was provided for, and it was enacted that if it should appear by such election that two-thirds of “ the legally registered voters” were in favor
of the removal, commissioners should be appointed to per form the same duties prescribed in the old law. Gen. Stat. Mo. 1865, p. 223, sects. 20-22. Here it is evident the legislature had in mind both the provision for registration of voters and the somewhat unusual requirement that twothirds of the qualified voters of the county should vote for the measure.
The old law respecting the subscription by the county courts to the capital stock of railroad corporations was as follows: “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.” Acts of 1860–61, p. 60, sect. 2. In adapting this to the new constitutional requirements, this is the language used : “It shall be lawful for the county court of any county, the city council of any city, or the trustees of any incorporated town, to take stock, &c., provided that two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent to such subscription." Gen. Stat. Mo. 1865, p. 338, sect. 17. This, it will be seen, is the exact language of the Constitution itself, and the intention evidently was to leave its meaning to be ascertained by judicial construction. By another statute passed at the same session of the legislature, the charter of the city of St. Joseph, which had before authorized subscriptions to the capital stock of railroad companies if a majority of the real estate owners in the city sanctioned the same, was amended so as to require that question to be submitted “ to a vote of the qualified voters of said city, and in all such cases it shall require two-thirds of such qualified voters to sanction the same.” Acts of 1865–66, p. 269, sect. 1. At the same session, in amending the charter of the town of Clarksville, evidently to accomplish the same object, this is the language employed : “ After first having obtained the consent of the inhabitants, as required by the Constitution of the State.” Id. p. 254, sect. 1.
At the February Term, 1866, of the Supreme Court of the State, that court was called on, in Bassett v. The Mayor of St. Joseph (37 Mo. 270), to give a construction to the act amend. ing the charter of St. Joseph. Under that act an election was held on the 13th of January, 1866, to vote upon the question of an issue of bonds, and four hundred and four votes were polled, of which three hundred and thirty-six were in favor of and fiftyeight against the measure. The mayor refused to sign the bonds after the vote had been taken, and a mandamus was asked to require him to do so. The only reason he gave for declining to sign the bonds was, that “ he was in doubt whether the matter was to be determined by two-thirds of the votes polled at the special election, or by two-thirds of all the voters resident in the city, absolutely, whether voting or not.” In the argu. ment in support of the application for the writ, the attention of the court was called to the fact that there was “no registry law by which the qualified voters in the city could be ascertained,” and it was further said, “ the votes cast at the last election for city officers and the votes cast at said subsequent election furnish the only correct criterion to ascertain the number of qualified voters in the city at the time said special election was held.” In the opinion, mention is also made of the number of votes polled at the next preceding election; but the court, after stating the exact question put by the mayor as indicating his own doubts, uses this direct and unmistakable language: “ We think it was sufficient that two-thirds of the qualified voters who voted at the special election authorized for the express purpose of determining that question, on public notice duly given, voted in favor of the proposition. This was the mode provided by law for ascertaining the sense of the qualified voters on that question. There would appear to be no other practicable way in which this matter could be determined.” It is true, the bonds voted at this election were not to be used in payment of subscriptions to the stock of railroad companies, but the law construed was the one in which provision was made for such subscriptions. Following this, at the October Term, 1866, of the same court, was the case of State v. Binder (38 Mo. 450), in which similar language in another statute was construed, and Bassett v. The Mayor of St. Joseph cited as establishing the doctrine “ that an election of this kind authorized for the very purpose of determining that question, on public notice duly given, was the mode contemplated by the v. County of Pike. legislature as well as by the law for ascertaining the sense of the legal voters upon the question submitted, and that there could not well be any other practicable way in which such a matter could be determined. And,” continues the court, “ certainly, in the absence of any evidence to the contrary, it may be presumed that the voters voting at an election so held were all the legal voters of the city; or, that all those who did not see fit to vote (if there were any) acquiesced in the action of those who did vote, and so are to be considered as equally bound and concluded by the result of the election. Rex v. Foxcroft, 2 Burr. 1017; Wilcox on Corp. 546.” Certainly, after these two decisions, made under the circumstances that attended them, and with the mind of the court directed by counsel in their argument to the registration laws, it might fairly be assumed by the legislature to have been judicially determined that the assent of two-thirds of the qualified voters voting at an election duly called and notified, was the legal equivalent of the assent of two-thirds of the qualified voters of an election precinct. Hence it was that at the session of the legislature which began in January, 1868, and as soon, probably, as the effect of these decisions had become generally understood, to avoid all future doubts as to what was meant, the equivalent language, as construed by the courts, was used, instead of that of the Constitution itself. And so we find not only in the Township Aid Act, but in other acts depending for their authority on the same clause of the Constitution, the requisite assent of those voting at an election was deemed by the legislature to be the assent of the qualified voters.
It was under this state of facts and the law that The State v. Linn County (supra) was heard and decided. Other objections to its constitutional validity than those which had formerly been considered were raised, argued, and decided in favor of the law. From that time forward, and until long after the issue of the bonds now in question, the law was treated by the courts and the people as valid and constitutional. No lawyer asked for a professional opinion on that subject could have hesitated to say that it had been settled. It would seem as though every question which could be raised had in some form, directly or indirectly, been presented and decided. While some of the
decisions were rendered before the passage of the township act, it is so clear that the peculiar language of that act was the consequence of those decisions that we do not deem it unreasonable to give them all the effect they would have if made afterwards.
We are, then, to consider whether, under these circumstances, we must follow the later decisions to the extent of destroying rights which have become vested under those given before. As a rule, we treat the construction which the highest court of a State has given a statute of the State as part of the statute, and govern ourselves accordingly; but where different constructions have been given to the same statute at different times, we have never felt ourselves bound to follow the latest decisions, if thereby contract rights which have accrued under earlier rulings will be injuriously affected. The language of Mr. Chief Justice Taney, in Rowan v. Runnels (5 How. 134), expresses the true rule on this subject. He said, p. 139: “ Undoubtedly this court will always feel itself bound to respect the decisions of the State courts, and, from the time they are made, regard them as conclusive in all cases upon the construction of their own laws. But we ought not to give them a retroactive effect, and allow them to render invalid contracts entered into with citizens of other States which, in the judgment of this court, were lawfully made.” Afterwards, in Ohio
Life Insurance and Trust Co. v. Debolt (16 How. 416), the same learned Chief Justice, after reiterating what he had before said in Rowan v. Runnels, uses this language : “ It is true the language of the court in that case is confined to contracts with citizens of other States, because it was a case of that description which was then before it. But the principle applies with equal force to all contracts which come within its jurisdiction.” This distinction has many times been recognized and acted upon. Supervisors v. United States, 18 Wall. 71; Fairfield v. County of Gallatin, 100 U. S. 47. Indeed, if a contrary rule was adopted, and the comity due to State decisions pushed to the extent contended for, “it is evident,” to use again the language of Mr. Chief Justice Taney, in Rowan v. Runnels, “ that the provision of the Constitution of the United States, which secures to the citizens of another State the right to sue in the courts of