The City of East St. Louis v. Maxwell

Citation1881 WL 10562,99 Ill. 439
PartiesTHE CITY OF EAST ST. LOUISv.FRANK B. MAXWELL.
Decision Date21 June 1881
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. CHARLES W. THOMAS, for the appellant:

The bonds in question were not issued for money borrowed, nor for labor, services, or material furnished, but were issued directly to creditors to take up and cancel some former indebtedness held by them. Where the vote of the people is required by any statute as a prerequisite to the issuing of municipal bonds, such vote is one of the elements of power, and if it is lacking, the power fails, and the bonds are void. Williams v. Town of Roberts, 88 Ill. 11, and cases there cited.

The act of 1872 authorized the funding of the indebtedness of any county, city, etc., provided the issue of the new bonds should be authorized by a majority vote of the legal voters of such municipality.

It is claimed that section 4, article 3, of the charter of the city, empowers the council to issue these bonds; but the power conferred by this section has no reference to re-funding the city debt. It relates solely to the creation of such a debt. The making of a debt is one thing, and the funding of it is quite another and different thing. But even had the charter contained a power to fund the debt without a vote, the law of 1872 modified that power so that a vote was necessary.

The court, in the case of Galena v. Corwith, 48 Ill. 423, in speaking of the powers, by implication, of cities to borrow money and fund indebtedness, said that a city could fund an existing debt without any express power being given it to do so.

In Hardin County v. McFarlan, 82 Ill. 188, the force of the above case is very much broken. It is there said, that “the decision in that case was based upon the ground that the city, by its charter, had power to borrow money, and not having been restricted as to the means of exercising that power, could issue the bonds.”

Mr. F. A. MCCONAUGHY, for the appellee:

It is confidently asserted by the opposing counsel that the law of 1872 modified the power given in the charter, so that a vote was necessary. There is not a word in this act directed to such a purpose, or to the repeal of any prior legislation. The repeal of a law by implication is not favored. The repugnance between statutes must be so clear and plain that they can not be reconciled, to justify a resort to this doctrine. Bruce v. Schuyler, 4 Gilm. 221; Hume et al. v. Gossett, 43 Ill. 299.

Judge Dillon, in his work on Municipal Corporations, sec. 54, says: “It is a principle of very extensive operation, that statutes of a general nature do not repeal, by implication, charters and special acts passed for the benefit of particular municipalities,--citing Bond v. Hiestand, 20 La. Ann. 139; Railroad Company v. Alexandria, 18 Gratt. (Va.) 176; Hammond v. Haines, 25 Md. 541; Louisville v. McKean, 18 B. Mon. 9; Cumberland v. Magruder, 34 Md. 381; Egypt Street, 2 Grant cases, (Pa.) 455; State v. Branin, 3 Zabr. (N. J.) 484. See, also, Town of Ottawa v. County of LaSalle, 12 Ill. 340.

The act of 1872, and the act amendatory thereto, passed in 1875, were intended only to provide a remedy which did not before exist to renew or fund outstanding indebtedness, so that cities which had power to contract indebtedness, and no power to fund or re-fund the same, might avail themselves of these acts. The People ex rel. v. Lippincott, 81 Ill. 193; County of Hardin v. McFarlan, 82 Id. 138; Burr v. City of Carbondale, 76 Id. 474.

The charter of the city says: With the moneys so borrowed, the city council shall first liquidate and discharge all legal indebtedness of the said city.” Under this power both the ordinances were adopted.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This was an action, brought in the circuit court of St. Clair county, against the city of East St. Louis, on five bonds, of $500 each, issued by the city, payable five years after their date, with interest at ten per cent. One of the bonds was dated March 8, 1872, and was issued under an ordinance of the city approved July 8, 1869. The other four bore date _______ -, _____, and were issued under an ordinance approved June 6, 1872. It is contended by the city, that at the time the bonds were issued there was no law which authorized their issue, and hence the bonds are void, and no action can be maintained upon them. If the bonds were issued without legal authority, they can not be enforced. We will, therefore, go to the law under which the ordinances were adopted, under which the bonds issued, to determine the validity of the bonds.

The charter of the city of East St. Louis, art. 3, sec. 4, Private Laws, 1869, vol. 1, p. 885, provides: “The city council shall have power to appropriate money and provide for the payment of the debt and expenses of the city; to borrow, on the credit of the city, a sum of money not exceeding one hundred thousand dollars ($100,000); to issue bonds, scrip, or certificates of indebtedness therefor, in such amounts, and bearing such interest, and payable at such times and places, and in such manner, as the city council may deem will make such bonds, scrip or certificates most valuable and salable, and best for the interests of the city; but no bond, scrip or certificate shall exceed in amount one thousand dollars ($1000), nor bear a greater interest than ten per cent per annum. With the moneys so borrowed, the city council shall first liquidate...

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