People Ex Rel. Peoria v. Peter Cline.

Decision Date31 January 1872
Citation1872 WL 8200,63 Ill. 394
PartiesTHE PEOPLE ex rel. Peoria and Rock Island R. R. Co.v.PETER CLINE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Fulton county; the Hon. C. L. HIGBEE, Judge, presiding.

This was an application by the relator for a mandamus against appellee, supervisor of the town of Akron, in the county of Peoria, to compel him to execute and deliver $27,000 of the bonds of his town to the relator. The facts bearing on the points discussed appear in the opinion.

Messrs. INGERSOLL & MCCUNE, for the appellants.

Messrs. BURNS & BARNES, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that relator was created a corporation by an act of the general assembly, approved March 7th, 1867; that the company has constructed the railroad from Peoria to Rock Island; that it passes through the town of Akron, in Peoria county; that, under the power conferred by the charter, the question whether the town should subscribe $30,000 to the capital stock of the company was submitted to a vote of the citizens thereof. After canvassing the vote, it was found that 124 votes were cast in favor of subscription, and 122 against subscribing. There were some conditions annexed in the petition for the call, and in the notice given of the election, but it is conceded that they have been complied with by the company. The town clerk, on the 10th day of April, three days after the election, filed a certificate of the result of the same, in the office of the county clerk. After the result of the vote was declared, Wm. H. Wilson, the supervisor, prepared and executed bonds of the township to the amount of $3,000, in conformity with the terms on which they were voted, but the town clerk having refused to join in issuing them, he was compelled to attest them by mandamus, when they were delivered to the company. On being demanded of respondent, who has since been elected supervisor, he refused to issue the remaining $27,000 of bonds, and the company applied to the circuit court of Peoria county for a writ of mandamus to compel the supervisor to issue the same. Subsequently the venue was changed to Fulton county.

A return was made to the alternative writ, in which it is set up as a defense that the provision of the charter had not been observed, which only authorized the town clerk to call the election on the petition of ten legal voters of the town. It admits that a petition was filed, signed by ten residents of the town, but avers that a portion of them were not legal voters, being aliens and not naturalized, and as such, not entitled to vote under the constitution or laws of this State; that a majority of the legal votes cast at the election was not in favor of subscription, but, on the contrary, a majority was cast against subscription; that of those who were registered as voting in favor of subscription, there were three aliens, not naturalized, or in any manner legally entitled to vote at that or any other election held under the laws of this State; that these three votes were counted for subscription and entered into the canvass, and had they been rejected, as they should have been, the result would have shown a majority of one against subscription. The return also contains this averment:

“And the respondent says that, at the time of making of said subscription to said capital stock as aforesaid, the said relator was notified and informed of the illegality of the petition to the clerk, and of the illegal voting at said election as aforesaid, and of the fact that the said township officers had not determined the length of time for which said bonds should run, and of the want of power in the said supervisor to make said subscription and issue said bonds. Nevertheless, the said supervisor of said township made said subscription as aforesaid, and said relator received the same, well knowing the lack of power and authority and the fraud aforesaid in said proceedings hereinbefore mentioned.”

Relator interposed a demurrer to the return, which the circuit court overruled by a pro forma order and dismissed the petition, and relator brings the record to this court and assigns various errors.

On the argument several interesting questions are presented and discussed, but we propose only to consider that of the fraud in the petition for the call of the election and the fraudulent votes cast, by which it was declared that the subscription had carried. It is positively averred by the return, and admitted by the demurrer, that there was not ten legal voters of the town that petitioned for the call of the election, and that there were but 121 legal votes cast in favor of subscription, and that there were 122 against subscription, and that there were three fraudulent votes cast in favor of the proposition, which were counted. It is also averred that these facts were known to the company at the time the subscription was made, and this is admitted by the demurrer.

The statute requires that there shall be the names of ten legal voters of the town signed to the petition for the call of an election, whilst in this case there were ten names thus signed, but it is averred and admitted that two of the persons were not legal voters. This, then, was not in accordance with the statute, but was in violation of its requirements. And the same is true of the three illegal votes cast in favor of subscription. The charter only authorizes such a subscription when a majority of the legal votes cast at the election shall be in favor of the same. Hence, the law was not complied with as to the requirement of the number of votes in favor of the measure. There was not a legal majority of the votes cast for subscription, and it should not have been made.

It is, however, urged that, notwithstanding there may have been a failure to comply with the statute in calling and holding the election, still the township is estopped by the canvass of the vote, the return to the county clerk, and the subscription made by the supervisor. Although this might be true had the bonds been issued, and in the hands of an innocent holder, or had the subscription been made without any notice of the fraud, and the company had incurred liability on the faith that the bonds would be issued, but here the company had notice of the fraud, and can not, therefore, say they...

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15 cases
  • People ex rel. Bruce v. Dunne
    • United States
    • Illinois Supreme Court
    • April 19, 1913
    ...no new authority, and from its very nature can confer none. People v. Gilmer, 5 Gilman, 242;City of Ottawa v. People, 48 Ill. 233;People v. Cline, 63 Ill. 394. If it is the duty of the defendants to do the acts sought to be coerced by the writ, such acts would not be any more valid or legal......
  • The Hutchinson & Southern Railroad Company v. The Board of Commissioners of Kingman County
    • United States
    • Kansas Supreme Court
    • January 1, 1892
    ...brought by tax-payers to enjoin the issuance of bonds; and the same principle finds recognition in the case of People, ex rel., v. Cline, 63 Ill. 394. In the case City of East St. Louis v. Gaslight Co., 98 Ill. 415, following is the first point in the syllabus: "Although there may be a defe......
  • People ex rel. Scott v. Kerner
    • United States
    • Illinois Supreme Court
    • June 4, 1965
    ...very nature can confer none. People ex rel. McKee v. Gilmer, 5 Gilman 242; City of Ottawa v. People, 48 Ill. 233; People ex rel. Peoria & R. I. R. Co. v. Cline, 63 Ill. 394.' People ex rel. Bruce v. Dunne, 258 Ill. 441, 446-447, 101 N.E. 560, 562, 45 L.R.A.,N.S., Mandamus lies to enforce an......
  • Gill v. Board of Com'rs of Wake County
    • United States
    • North Carolina Supreme Court
    • November 7, 1912
    ... ... people within the proposed special school district whether ... Cline, 63 Ill. 394, that the township was not estopped ... to ... ...
  • Request a trial to view additional results

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