Dissenting opinion of
Wagner, Judge.Whether the State has the right to maintain this proceeding, at the instance of its law officers, is a question of great importance, and upon which I have grave doubts. It is obvious, I think, that the State, and by that term I mean the State in its corporate capacity and character, has no manner of interest in the litigation. Its rights are in no wise inju*387riously affected, and its interference can only be permitted on the ground that the Attorney General or Circuit Attorney, as the representatives of the State, is legally authorized to interfere, in all cases where private persons are held incompetent to sue, and where the rights of the whole people or any considerable number of them are in danger from the unlawful acts of persons acting, or assuming to act under color of lawful authority or otherwise.
In my judgment it would be unwise as well as mischievous to permit the Attorney for the State to intermeddle with the affairs of private or public corporations, when the stockholders, or others whose interests are affected are entirely competent to protect and take care of them. It would be easy to demonstrate the injustice of the rule, which would take from individuals who are aggrieved by the illegal acts of corporations, or public officers, and confer upon the Attorney General, or other lawful officer of the State, the power to maintain actions for such injuries. The consequences which must necessarily flow from such a power, would be disastrous. The officers of corporations would soon cease to be guided by the wishes or interests of those for whom they act, but would look to the Attorney General,_ as the one who alone could punish, and who would, when conciliated, be both able and willing to protect them. The rights of the stockholders or the corporations would depend upon the caprice, the good or ill will of the Attorney General, and instead of maintaining their own rights, they would rely on that officer, and the State would be perpetually involved in expensive litigation in which it had no real or essential interest.
There is no authority for exercising this power under the statute, for the law, in defining the duties of Attorney General says that he shall be authorized and empowered, in the name and behalf of the State, to institute and prosecute all suits and other proceedings at law and in equity, requisite or necessary to protect the rights and interests of the State, and to enforce any and all rights, interests or claims of the State against any and all persons, bodies politic or corporate. (1 W. S., 202, § 5).
*388Again, it is made the duty of the Circuit Attorney to commence and prosecute all civil and criminal actions in which the State, or any county in his circuit may be concerned; defend all suits brought against the State, or any county in his circuit; prosecute forfeited recognizances and actions for the recovery of debts, fines, penalties and forfeitures accruing to the State, or any county in his circuit. (Ibid, § 12).
The above is the statutory grant of power defining the duties and functions of the Attorney General and Circuit Attorney, and constitutes their exclusive authority under the statute, with the exception of the provision where they are em - powered to exhibit an information in the nature of a quo warranto against a person for usurping, intruding into, or unlawfully holding or exercising an office or franchise. (2 W. S., 1133, § 1.)
This is the first case in which the power has ever been attempted to be exercised in this State, and that furnishes a strong argument to show that the profession never regarded it as having any existence.
The question was raised in a different form in the case of the State ex rel. Connelly vs. The Parkville and Grand River Railroad Company, (32 Mo., 496), and-the right of the State to be made as a party, was emphatically denied. It was there held that the State could not properly be made a party plaintiff, at the relation of a private citizen, to a bill for injunction to restrain a county court of a county from issuing its bonds, or levying a tax to pay for a subscription to the stock of a railroad company; that the State had no interest, legal or equitable, in the subject matter.
An attempt is made to distinguish that case because it was at the relation of a private party, but I cannot see that that makes any difference. The main point is that the State has no interest in the subject matter of the litigation. Moreover, several of the English cases cited as an authority to sustain this proceeding, will be found, on examination, to be cases where the Attorney General proceeded at the relation of private persons, that being one of the ordinary courses in the English courts, but which is denied in this court.
*389As there is no statutory provision authorizing this proceeding in behalf of, and in the name of the State, it is sought to .maintain it by reference to the common law authority of which it is supposed the Attorney General is possessed. If we assume that, in addition to the powers conferred by statute, that officer also has the authority that was accustomed to be exercised in England at common law by the Attorney General, still I do not think it follows that this proceeding is sustainable.
The leading case which decides that the Attorney General or the State is a necessary or rightful party in cases of this character is Davis, et al., vs. The Mayor, etc., (2 Duer., 663), where it was determined, that when the act of a municipal corporation against which relief is sought affects injuriously the whole community over which the corporate jurisdiction extends, the Attorney General is a necessary party to the prosecution of the suit. That was an adjudication made by the Superior Court of the City of New York, and the authorities relied upon are exclusively from the English Chancery courts.
But Judge Mullin, in the Supreme Court of the same State, subsequently examined the question in the case of The People vs. Miner, (2 Lansing, 396), and after a most full and elaborate review of all the cases, showed most conclusively that Judge Duer misapprehended and mistook the purport of the authorities, and that the only eases in which at common law, the Attorney General was authorized to interfere to restrain corporate action, or was a necessary party to an action for that purpose, were those in which the act complained of would produce a public nuisance or tend to the breach of a trust for charitable uses. He shows that in the eases where interference was had by the Attorney General, there were trusts delegated to the corporations by act of Parliament,'and the intervention of the government was permitted on the ground of threatened breach. I have examined and read all the English eases referred to, and coincide fully with the view taken by Judge Mullin and adopted by the Supreme Court of the State of New York.
*390The case of the Attorney General vs. The Mayor, etc., of Dublin, in the House of Lords, (1 Bligh, N. R., 312), so much relied upon as being one of the strongest authorities for the maintenance of this suit, was this: An information and bill was tiled by the Attorney General on behalf of the inhabitants of Dublin paying water rates, against the corporation, which, stating various acts of mismanagement and misappropriation of the funds arising from the rates, submitting that the corporation were trustees under the act, of rates thereby given, for uses which were charitable in their nature; and charging that the conduct of the corporation amounted to a breach oí trust, prayed among other things a declaration and execution of the trust, and that accounts might be taken of the rates received by the corporation, and the application thereof.
. To this information and bill, the defendants put in an answer, and among other defenses they submitted that they were not trustees and that the purposes specified in the act were not charitable uses; and the Court held that they had jurisdiction to entertain the information and bill. Here it will be observed that the direct question of trusts and charitable uses was raised, which gave"the court jurisdiction.
I have not the time to enter into a review of the English cases, and it would too much extend the length of this opinion, but I think when they are properly looked into they will all be found to be predicated on some act of parliament or have ref- ■ erence to charitable uses or trusts.
The American cases on the subject maintaining the right are unsatisfactory and mostly cases where the point was not faised.
Doolittle, et al. vs. Supervisors of Broome county (18 N. Y. 155) was a suit by private individuals to obtain a judgment declaring null and void a certain act of the Board of Supervisors, and it was decided that the suit could not be maintained by persons having no other interest than one common to all the free-holders of the town. That was the real question in the case, and after deciding it, the remark was made that the proceeding of the town, if void, could only be redressed *391or prevented at the suit of the State or some officer authorized to act in behalf of the public.
In Roosevelt vs. Draper (23 N. Y. 318,) which was also a suit by a private person, the same doctrine was reiterated. But neither of the cases called for any direct decision upon the 'subject.
So in the case in Pennsylvania, (The Buck Mountain Coal Company vs. The Lehigh Coal and Navigation Company, 50 Penn. St., 91), the only question decided was that a bill to enforce the performance of public duties by a corporation was not maintainable at the suit of a private party, in the absence of a special right or authority. What was said about the right of the State or the Attorney General to commence and prosecute the suit was mere dicta.
The ease of the Board of Supervisors vs. Keady, et al., (31 Ill., 293), was in relation to the constitutionality of an act respecting the removal of a county? seat, and the court held it to be unconstitutional. What was said by the jtidg'e in reference to the State being a party was wholly outside of the case, and cannot be considered as any authority.
The Massachusetts ease (Attorney General vs. City of Salem, 103 Mass., 138), was an information in the nature of a quo warranto against the City of Salem, in order to redress ceptain violations of the Statute, and the court held that the griev anee was not remediable upon an information in the nature of a quo warranto, or upon a bill of equity filed in the name of the Attorney General.
Prom the best consideration that I have been able to give to the question, I fail to find any good or sufficient reason for permitting the State to become a party to these suits. I am utterly averse to the adoption of any rule that will allow a State officer to intermeddle in the affairs of every corporation in the State. It will lead to abuse and needless expense on the part of the State. It will impose a duty on the law officers with which neither they nor the States have any legitimate concern. It will have the inevitable effect of relieving persons directly interested in corporations from the duty and responsibility of seeing that abuses are corrected by those immediately interested.
*392I am not prepared to concur in the opinion that the amendatory act was wholly void. That the legislature possessed the power to amend the original act was fully decided by this court in the case of the State ex. rel. Circuit Attorney vs. The Cape Girardeau and State Line Railroad Company, (48 Mo., 468). I am aware that the common law'rule was that the title to an act constituted no part of the act. But our present constitution has made an essential and important change in this respect. It is now provided that no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; but if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed. (Const. Mo., Art. IV, § 32.)
Under this clause the title performs an important function. The subject matter of the act must be clearly expressed in the title, and if any subject embraced in the act is not expressed in the title it is void. An act without a title would manifestly be a nullity under this provision of the constitution, and therefore, it follows inevitably, that the title forms and constitutes a part of the act.
This constitutional provision has been before this court several times for determination, and the settled construction is that it was the intention of the framers of that section to prevent the conjoining in the same act of incongruous matters, and of subjects having no legitimate connection or relation to each other. It was not designed to embarrass legislation by requiring a needless multiplication of separate bills, but it was intended that everything contained in any single bill should be germain and have a just and necessary connection. (City of St. Louis vs. Tiefel, 42 Mo., 578; State vs. Mathews, 44 Mo., 523; State vs. The Bank, etc., 45 Mo., 528.)
And it has been held that if the title of an original act is sufficient to embrace the provisions contained in an amendatory act it will be good, and it need not be inquired whether the title of the amendatory act would of itself be sufficient. (Brandon vs. The State, 16 Ind., 197.)
*393Now the title to the act is “ an act to amend ‘ an act to incorporate the Louisiana and Mississippi River Railroad Company, by increasing the amount of the capital stock of said company, delining more explicitly the power of the Board of Directors to 'fix the western terminus of said road, etc., etc.”
This is a good title, all relating to the same subject matter, and sufficiently refers to the original act to which it is amendatory. Such being the fact, in my judgment the act should be held a valid law.