delivered the opinion of the court on the motion for a rehearing.
This motion was not filed within the time prescribed by the rule of this court, requiring such motions to be filed within ten days after the opinion of the court shall have been delivered. *80But as it is a véry important case, and as there seems to be some misunderstanding in regard to the precise points passed upon by the court, we have considered the motion, and, in overruling it, I deem it proper to state briefly what was concurred in by us.
1. We assented to the proposition that the charter of the Bailroad Company, which was enacted in February, 1857, allowed counties to subscribe to the stock of the Company, without taking a vote of the people. In regard to this matter the charter is plain and positive.
2. The next point was, whether this provision of the charter had been repealed by any subsequent legislation, or by the new constitution of 1865. This point we considered settled by repeated decisions of this court, to the effect that no subsequent act of the Legislature or the constitution had repealed that provision in the charter.
On the faith of these decisions large amounts had been invested, and we considered, that the question had been put at rest, and had become a rule of property which we had no right to disturb. This decision only applies to such charters as were granted prior to the constitution of 1865. There is nothing in the opinion which will warrant the conclusion, that we considered that part of the charter, allowing such subscriptions, a franchise which could not be repealed, either before or after the adoption of the new constitution.
3. It was not necessary to decide, that the recitals in the bonds, issued by the County Court to the Bailroad Company, were conclusive, or amounted to an estoppel.
In my judgment, and in the judgment of a majority of the court, they do not amount to an estoppel. Although that is the settled doctrine of the Supreme Court of the United States, it has not been sanctioned here so as to make it a rule of decision in this State. These bonds were issued after the opinion of this court in Flagg vs. City of Palmyra, and before the Franklin county cases.
In delivering opinions, the judge who delivers them is allowed to make his own arguments and illustrations, without *81compromising the other judges. It is unnecessary to say, that the illustrations indulged in by the learned judge, who delivered the opinion under review, were his own, and it was not necessary for the other judges to sanction them in order to concur in the result.
The only new point in this motion, not passed on by the court, is, that the charter of the company had ceased before the company was organized. Whether the corporation had a legal existence or not when the subscription was made, is a question that cannot be raised in a collateral proceeding.
It did exist as a matter of fact, and was in the exercise of all its chartered franchises, when the subscription was made and the bonds issued.
The only proper way to test this matter, is by a direct proceeding by the sovereign power of the State. It is a question between the State and the company, and a proceeding by way of quo warranto is the proper remedy. (State Bank vs. Merchants’ Bank of Baltimore, 10 Mo., 124.)
The motion for a rehearing is overruled. Judge Napton filing a separate opinion. The other Judges concur.
Separate opinion by Judge Napton on the motion for a rehearing.
In the opinion overruling the motion for a rehearing, I concur.
In the opinion of the court heretofore filed, I discussed no question which was not raised by the record.
The points were two : First — Whether the laws passed since 1857 — the date of the charter in question — repealed the privilege granted in that charter of taking subscriptions from counties without, a vote ; and upon this point the court was agreed, that they did not, on the authority of various decisions referred to. The next point was, whether, if the bonds were conceded to have been issued under the law of 1855, as on their face they purported to have been, the absence of an election defeated a recovery on them; and upon this point, I referred to the decisions of the Supreme Court of the United States, and to the decisions of this court anterior and *82after, the issue of the bonds in controversy, and showed, that both courts held sueli bonds valid in despite of the want of an election, and as such was recognized to be the law, both in this State, and by the Supreme Court of the United States, at the time of their issuance- and purchase by the holders, the bonds could not be defeated by such a plea, although this court might have held differently since, and might entertain a different opinion now.
Upon both these points, I adhere to the opinion heretofore given.
There was, of course, iw opinion given in regard to bonds issued under charters general or special, granted since the new constitution, for no such question arose, nor could any such question arise in regard to special charters, as the new constitution prohibited any such charters.