Mather v. City of Ottawa

• Decision Date: 14 November 1885
• Citation: 114 Ill. 659,3 N.E. 216
• Parties: MATHER v. CITY OF OTTAWA.
• Court: Illinois Supreme Court

114 Ill. 659

3 N.E. 216

MATHER

v.CITY OF OTTAWA.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from Second district.

CRAIG, J.

This was an action brought by Louise Eames Mather in the circuit court of La Salle county against the city of Ottawa upon 120 coupons which were attached to certain bonds, executed by the mayor and city clerk of Ottawa under the authority of an ordinance passed by the city council of Ottawa on the fifteenth day of June, 1869, and also an ordinance adopted on the twenty-ninth day of July, 1869, to carry out the ordinance of June 15th. The city of Ottawa was incorporated by an act of the legislature on the tenth day of February, 1853, and under the act of incorporation the city was intrusted with such powers as are usually conferred upon incorporated cities for the government of the people within the limits of such a corporation. Among the powers conferred may be found the following:

‘Article 5, Section 1. The city council shall have power and authority to levy and collect taxes upon all property, real and personal, within the limits of the city, not exceeding one-half of one per cent. per annum upon the assessed value thereof, and may enforce the payment of the same in any manner to be prescribed by ordinance not repugnant to the constitution of the United States and of this state.’

‘Art. 5, Sec. 3. The city council shall have power * * * to establish, support, and regulate common schools, to divide the city into school-districts, to borrow money on the credit of the city, and to issue bonds therefor, and pledge the revenue of the city for the payment thereof: provided, that no sum or sums of money shall be borrowed at a greater interest than at ten per cent. per annum.’

‘Art. 10, Sec. 20. No money shall be borrowed by the city council until the ordinance passed therefor shall be submitted to and voted for by a majority of voters of said city attending an election held for that purpose.’

On the fifteenth day of February, 1851, the legislature passed an act creating a corporation known as the Ottawa Manufacturing Company. The act is entitled ‘An act to authorize certain persons to construct a dam across Fox river for hydraulic and manufacturing purposes.’ Section 2 of the act is as follows:

‘Sec. 2. The said company, when formed, are hereby authorized to build a dam across Fox river, on section 11 or 12, in township 33 north, of range 3 east, in La Salle county, for the purpose of creating a water-power, and the said company may use, lease, or otherwise dispose of the same, and may construct such other works, buildings, or machinery as may be deemed necessary or proper to use such water, and to promote the interests and objects of the company.’

On the sixteenth day of February, 1865, the legislature passed an act enlarging the powers conferred by the act of 1851, under which the company was empowered to build a dam across the Illinois river at such point as the company might elect, with the right to construct a race or races for the purpose of introducing the water of the Illinois river into the pool of the dam authorized to be erected across Fox river. On the sixteenth day of June, 1869, the city of Ottawa passed an ordinance, section 1 of which is as follows:

‘Section 1. Be it ordained by the city council of the city of Ottawa, that the mayor of the city be, and he is hereby, authorized to borrow, in the name of the city, at a rate of interest not exceeding 10 per cent., the sum of $60,000, for the use of said city, to be expended in developing the natural advantages of the city for manufacturing purposes, and that bonds of the city be issued therefor in the sum of $500, with interest payable annually, said bonds to be payable one-third in 5 years, one-third in 10 years, and one-third in 15 years after the date thereof: provided, that no application shall be made of the proceeds of said bonds, except for the purpose aforesaid, and in pursuance of an ordinance to be passed for that purpose by the city council, nor until the faithful application of the proceeds of such bonds to the purpose aforesaid shall be fully secured to the city.’

Section 3 requires the ordinance to be submitted to the voters of the city for rejection or adoption at an election to be held for this purpose. On the thirtieth day of July, 1869, an ordinance was passed by the city of Ottawa to carry into effect the ordinance of June 15, 1869, in which it was provided that bonds of the city for the sum of $60,000 be issued by the mayor in accordance with the terms and conditions of said ordinance of June 15, 1869, and that he deliver the same to William H. W. Cushman, to be used by him in developing the natural resources and surroundings of the city, and that the said Cushman is authorized and directed to expend the same in the improvement of the water-power upon the Illinois and Fox rivers within the city and in the immediate vicinity thereof, under the franchises and powers which have been granted for that purpose by the legislature of the state, or which may hereafter be granted for that purpose in the manner which in his judgment shall best secure the practical and permanent use of said water-power in the city and its immediate vicinity: provided, that said Cushman shall execute and deliver to the mayor an agreement from him to the city of Ottawa that he will, without unreasonable or unnecessary delay, cause a good, substantial, and sufficient dam to be constructed across the Illinois river above the city, to bring into use all the available water-power of said river at Ottawa, and will construct sufficient head and tail races to make such water-power available. The ordinance also contained a provision that Cushman should bind himself that if the work was not constructed as provided by the ordinance, that he would return the bonds, or their value, and save the city harmless from all loss on account of interest.

No money was borrowed by the city on the faith of the bonds, but on the second day of August, 1869, the bonds for $60,000 were issued and delivered to Cushman as a donation to and in securing the water-power contemplated by the constructing of...