Burr v. the City of Carbondale.

• Decision Date: 31 January 1875
• Citation: 1875 WL 8226,76 Ill. 455
• Parties: GILBERT J. BURR et al.v.THE CITY OF CARBONDALE.
• Court: Illinois Supreme Court

76 Ill. 455

1875 WL 8226 (Ill.)

GILBERT J. BURR et al.

v.THE CITY OF CARBONDALE.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Jackson county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Mr. WM. J. ALLEN, and Mr. D. H. BRUSH, for the plaintiffs in error.

Mr. ANDREW D. DUFF, for the defendant in error.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:^a1

This was a bill in chancery, in the Jackson circuit court, exhibited by the city of Carbondale, to enjoin the collection of taxes assessed to pay interest on certain bonds issued by that city under the act of March 9, 1869, of April 19, 1869, and March 29, 1872, in aid of the Southern Normal University. To the bill, the county treasurer, the collector of taxes, and the unknown bondholders, were made defendants.

The main charge in the bill is, that these several acts were passed by the legislature without competent constitutional authority, and the acts done under them consequently void and of no effect.

The prayer of the bill was to enjoin these officers from acting in the premises--from collecting the taxes levied for the payment of interest upon the bonds, and from paying the money on the interest coupons, collected for such purpose, and also to restrain the holders of the bonds from proceeding to collect the interest or principal thereof by action at law, by mandamus or otherwise.

A general demurrer to the bill was interposed, which, on argument, was overruled, and the court decreed in all things as prayed. To reverse this decree the defendants bring the record here by writ of error.

The bill alleges these several acts to be unconstitutional and void, and charges specially, that the act of the 19th of April, 1869, and that portion of the tenth section of the charter of the Normal University which favors the selling out the location of this university to the highest bidder, under and by virtue of which all of the bonds of the city have been issued, are and were void, because of being against public policy; and that the act itself is in conflict with section 5 of article 9 of the constitution of 1848, and therefore void, and that all the bonds of the city mentioned in the bill were issued without authority of law, in violation of the State constitution, and therefore void.

The bill also charges that the levy and collection of taxes within the corporate limits of the city for the payment of interest or principal of these bonds, are in violation of section 2 of the same article of the constitution.

These are the principal and only important charges in the bill, on which the controversy turns.

An able argument has been presented by appellee in support of the decree, which we have attentively read and maturely considered. It is based on the charges in the bill we have specified, and the authority for the argument is, in great measure, the opinion of this court in the case of The Board of Supervisors of Livingston County v. Weider, 64 Ill. 427. If this case is like that in any or all of its prominent features, it must be decided in the same way.

The charge in the bill is, that the act of the 19th of April, 1869, and that portion of the charter of the university which favors the selling out the location of this institution to the highest bidder, under which the bonds in question were issued, were void, “because of being against public policy.”

The charter is found among the Session Laws of 1869, at page 34, and is entitled “An act to establish and maintain the Southern Illinois Normal University.” The first section of this act provides for a corporation by the name of the Southern Illinois Normal University, with the usual rights, powers and privileges of corporations. Section 2 declares the objects to be to qualify teachers for the common schools of this State by imparting instruction in the art of teaching, etc. Section three vests the powers of the corporation in a board of trustees, to be appointed (Sec. 4,) by the Governor and Senate, prescribing their term of office, etc. By section 5 they are to hold their first meeting at Centralia, at which meeting a president and secretary of the board are to be chosen, who were to be members of the board, and cause a regular record to be kept of all their proceedings. A treasurer was also to be appointed, not a member of the board, and to give bond. By section 6 the treasurer's duties are prescribed. The subsequent sections are matters of detail.

Then follows section ten, to which exception is taken by appellee as unconstitutional, because against public policy:

Section 10. The trustees shall, as soon as practicable, advertise for proposals from localities desiring to secure the location of said Normal University, and shall receive, for not less than three months from the date of their first advertisement, proposals from points situated as hereinafter mentioned, to donate lands, buildings, bonds, moneys, or other valuable consideration, to the State in aid of the foundation and support of said university, and shall, at a time previously fixed by advertisement, open and examine such proposals and locate the institution at such point as shall, all things considered, offer the most advantageous terms. The land shall be selected south of the railroad or within six miles north of said road passing from St. Louis to Terre Haute, known as the Alton and Terre Haute Railroad, with a view of obtaining a good supply of water and other conveniences for the use of the institution.

It is unnecessary now to notice any other provisions of that act. Its object and purpose is plainly perceived. We will now quote such portions of the act of April 19, 1869, as are necessary to a proper understanding of the case. It is entitled “An act to authorize cities and towns in Southern Illinois to issue bonds in aid of the Southern Illinois University.” Sess. Laws 1869, p. 297.

The first section provides, that the city council of cities, and the board of trustees of incorporated towns in Southern Illinois within the limits designated for the location of the Southern Illinois Normal University, are hereby authorized and empowered, in each of said cities and towns, to issue bonds in such amounts as said city council or board of trustees may determine upon by ordinance, not exceeding one hundred and fifty thousand dollars, payable in not less than five years nor in more than twenty years, and bearing seven per cent interest per annum; which said bonds, or the proceeds arising from the sale thereof, to be used by the said city council or board of trustees in aid of the Southern Illinois Normal University, if the same is located at any such city or town issuing said bonds.

Section 2 provides, that a tax shall be annually levied on all the property listed for taxation in said city or town, to pay the interest and principal on such bonds as may be issued under the provisions of this act; which tax, when collected, shall be deemed a special fund, and shall be used for no purpose other than the payment of said principal and interest. Said tax shall be assessed and collected in said city or town in the same manner as taxes are assessed and collected in such city or town for corporation purposes.

Section 3 provides, before any such bonds shall be issued, an election shall be first had in any such city or town as the people thereof may desire to avail of the provisions of this act, to determine whether such bonds shall be issued. A certain notice of the election is to be given, all tickets to be prepared with the words “for the loan,” or “against the loan,” and no bonds shall be issued or tax assessed, unless a majority of the votes cast be for the loan; only qualified voters to vote, and the notice shall give the amount and duration of the bonds. No other portions of this act need be noticed.

In the able argument of the defendant in error, the successful party below, and the party who had issued the bonds in question, the right to avoid their payment or the interest upon them as stipulated on their face, is placed upon three grounds: First. That the principle and spirit of the act of April 19, 1869, is contrary to good morals and public policy. Second. That a tax levied to pay bonds issued under this law would be a State tax, and therefore a violation of section 2 of article 9 of the constitution of 1848. Third. That such tax would not be levied for a corporate purpose, within the meaning of section 5 of the same article of the constitution.

In support of the first proposition, counsel rely on the case of Livingston County v. Weider, supra. There are some strong expressions in the opinion in that case, but, as we read it, it fails to establish the proposition advanced. We think now, as we thought then, that such modes of providing State institutions hardly comports with the dignity of an independent and wealthy State, possessed of abundant resources. Setting up the location of State institutions to the highest bidder is, in our judgment, impolitic and unwise, resulting, in many cases, most disastrously to the best interests of the State. It should be the paramount object in locating public institutions, to place them where the interests of the State demand them, and not to promote individual interests, however strongly fortified by money or by representation. By the power of money, the very place least fitted may become the chosen spot, whilst those having every required advantage are overlooked. It gives occasion to bargaining and corruption, or at least strong suspicion thereof, for it is argued, if a locality can afford to offer such large inducements, is it not natural and reasonable to suppose they will supply others, so that success may be certain? It is humiliating to our State pride that resort should be had to such means, but this court has never said or entertained the opinion it was against the constitution so to legislate. It was not so decided in the Livingston county...