delivered a separate opinion.
I concur in the affirmance of the judgment rendered by the Circuit Court, but for reasons slightly variant from those given by the learned presiding judge. I am unwilling to say that, for the purposes of this proceeding, the alleged contract of April 11, 1849, may be treated as a nullity. It *66may be true that no better terms were thereby secured to the trustees of New Franklin, and that, in fact, the extensions of time for payments were less favorable to their interests than the stipulations, if fulfilled, of the original contract. But the same may be said of every release or extension by an obligee, which is none the less effectual on that account, as between the parties themselves. Nor can the State, in any case, impeach the validity of that transaction, if by her assent she has waived whatever rights it assailed. The act of December 6, 1855, declared the State’s assent to ‘ ‘ all contracts made by said trustees for the purpose of raising the amount of money authorized to be raised by the said act of incorporation, etc., for the purpose of constructing a rail or macadamized road,” etc. Such contracts were declared to be “ legal,” and might be “ carried out according to the true intent and meaning of the parties thereto.” If it can be shown that this act covered the transaction of April 11, 1849, no question remains, in my view, of the validity of the latter for all the purposes of this case. Against it are pitted, in the nature of the proceeding, some supposed rights of the State. But if all such rights have been waived by the State there is an end of their power to defeat it.
It is argued that the act of 1855 could not include the transaction of April, 1849, because it. is limited to “all contracts,” and that transaction was not a legal contract. But, if not that, what contract did the act embrace? All the prior contracts had then been declared by the ultimate judicial authority to be valid and unimpeachable. Did the Legislature undertake to validate what was already valid ? It must be presumed that the act was passed to accomplish some object; and, as it was mere waste paper so far as the other contracts were concerned, it could have no possible application, unless to that of 1849. The very fact that the validity of this was doubted upon real or supposed grounds — especially with reference to the prohibitory acts *67■of 1842 and 1845 — furnishes proof of its being in the legislative contemplation, which is wholly wanting in the case of ■contracts to which no validating aid was necessary. The use of the word “ contract ” does not always imply a valid ■or legal contract. Law writers and courts habitually tell us of contracts that are void. If the term, in whatever connection, must always be held to mean only a legal contract, then the writers and the courts must be interpreted to mean very different things from what they manifestly do mean. 'The same might be said of the word “ deed ” in its various ¡applications. I think the word “contract” was intended "by the Legislature to cover every transaction having a ¡semblance of such, and coming within the further descriptive limitations expressed.
It is further objected that this transaction was not one •“for the purpose of raising the amount of money authorized,” etc., in the language of the act of 1855, but was for "the purpose of releasing some dues and extending the time -of others. Undoubtedly it did relieve Gregory of obligations incurred under the contract of 1842. If it had stopped "there, no more money would have been raised. But it proceeded to stipulate for future payments, in a new series of its own creation. It was, so far, whether better or worse than the former, a contract for the purpose of raising money, etc. It was, at all events, a mere modification, as to time, of the contract of 1842, and was, similarly to that, within the general scope of the original grant of power. I ■cannot doubt that it was in the direct line of the legislative view when the act of 1855 was adopted.
Upon the question of jurisdiction in the Circuit Court, I have no doubt whatever. The proceeding by information in the nature of quo warranto was a legitimate offshoot from the ancient criminal information, which is coeval with the •common law itself. -It was in use against usurpations of the prerogatives of the crown far more than long enough ago to make it a part of the common law as imported into *68Missouri. No private relator was ever admitted until the statute of 9 Anne. That statute, from which ours is literally-copied in the particulars affecting this inquiry, has always been held to have merely enlarged the operation of the ancient proceeding. As a prerogative remedy, to be used in the common law courts without a private relator, the information in the nature, etc., remained as before. So, in Missouri, the statute does not abridge the State’s right to appear by her proper officer in a court of record of common law jurisdiction, and by this remedy to resume a forfeited franchise.
■ A municipal charter is understood to be a delegation of the State’s sovereignty, to be exercised for certain local purposes over a defined district. Such a grant is not judicially forfeitable, like a private corporate franchise. But to these grants are sometimes added franchises which constitute no feature in the local government, and may be operative beyond its territorial limits, although for the special benefit of the inhabitants of the municipal district. Such was the authority given the city corporation of New York to construct the Croton aqueduct, through which water is conveyed into the city over many miles beyond the corporate limits. In Bailey v. The Mayor, etc., of the City of New York, 3 Hill, 539, the court, in classifying such grants, said: “The distinction is quite clear and well settled, and the process of separation practicable. To this end regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the Legislature in conferring them. * * * Suppose the Legislature, instead of the franchise in question, had conferred upon the defendants banking powers, or a charter for a railroad leading into the city, in the usual manner in which such powers are conferred upon private companies, could it be doubted that they would hold them in the same character, and be subject to the same duties and liabilities? * * * These powers, in.the eye of the *69law, would be entirely distinct and separate from those appertaining to the defendants as a municipal body. So. far as related to the charter thus conferred, they would be regarded as a private company, and be subject to the responsibilities attaching to that class of institutions.” Numerous authorities, English and American, illustrate the same distinction.
The charter of New Franklin was municipal, so far as it provided for regulating the affairs of the inhabitants within the territorial limits defined’ in the act. But, when it .authorized the building of a railroad from the town to the river, the drawing of a lottery for that purpose, and the •contracting for such drawing in any part of the United States, it granted a private corporate franchise, which, like ■any other of that class, was liable to judicial forfeiture for non-user, misuser, or breach of the conditions of the grant. It has long been settled that one of several franchises in a ■charter may be forfeited without its affecting the others.
The testimony in the present case discloses grounds of forfeiture as positive, and almost as numerous, as ever before tainted the annals of our jurisprudence. The sole ■object of the franchise has been trampled under foot by those who were charged to promote it. The money raised for that object has been squandered upon others wholly foreign and unauthorized.
But can the defendants here, as Gregory’s assigns, be •subjected to the consequences of a forfeiture incurred by the trustees of New Franklin ? The 3d section of the act ■of February 26, 1835, authorizes the commissioners of the hospital lottery “ to contract with any person to have said lottery drawn in any part of the United States,” etc. The 6th section permits the trustees of New Franklin to exercise the same powers “in relation to the authority they now have to raise by lottery a sum of money,” etc. Can it be pretended that these provisions enabled the trustees to invest another with more than had been bestowed upon-*70them? Whatever contract might be made, the law would! enter into and become part of it. By that law the lottery-franchise was conditional, and could not exist a moment after forfeiture for breach of the condition. The State?could never have intended to surrender her ultimate right by authorizing a transfer of the intermediate.
Gregory must be regarded either as- an assignee under-legislative authority of the franchise itself, or as an agent, of the trustees who retained it. In either event the controlling principles are the same. An agent cannot lawfully do more than his principal might, nor can an assignee hold more than his assignor was able to convey. The State’s-surrender of her right of forfeiture for condition broken must appear in express terms, without which it can never-be presumed. No such surrender can be discovered in the-, legislation which authorized the making of the contract.
Gregory, with all the law before him, knew that he could', acquire nothing in the premises except by virtue of the? legislative authority. His acceptance of anything was a. virtual agreement to abide by the conditions upon which that-authority was given. An exercise of the State’s reserved right of forfeiture for breach of condition, therefore, so far from impairing the obligation of his contract, would be? simply enforcing its terms.
But it is here objected that Gregory could not compel’ the trustees to apply his payments to the object of the-franchise, and should not be held responsible for their misappropriation. I cannot admit either proposition. When he purchased he knew that the trustees, independently of what good faith to him required, were bound by law to> apply the purchase money to a certain purpose. Is it. possible that they could, by any act or omission, willfully violate a public duty, threatening destruction of the right? they had granted to him, and yet leave him remediless? Whether this be so or not, he had it in his power to stipulate for such an application of the money as would protect *71his acquisition. The State cannot be depxived of her ultimate right of fox’feitxxre by his reckless faith in the fair dealing of the trustees.
I attach no importance to the authorization of the tnxstees to contract “on such terms as they shall coixsider most advantageous.” No terms could be implied which would be in derogation of existing law.
■The. defendants, as Gregory’s assigns, stand in no better position than he did. I am, therefore, of opinion that the judgment of ouster ought to be affirmed.