Decker v. Hughes

• Decision Date: 30 June 1873
• Citation: 1873 WL 8272,68 Ill. 33
• Parties: HENRY J. DECKER et al.v.JAMES W. HUGHES et al.
• Court: Illinois Supreme Court

68 Ill. 33

1873 WL 8272 (Ill.)

HENRY J. DECKER et al.

v.JAMES W. HUGHES et al.

Supreme Court of Illinois.

June Term, 1873.

WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

This was a bill in chancery, brought by the plaintiffs in error, with others, as residents and tax-payers of the town of Mascoutah, St. Clair county, in the circuit court of that county, to enjoin the collection of certain taxes levied for the purpose of paying the interest on $50,000 in bonds registered in the Auditor's office, issued by the town of Mascoutah, to the St. Louis and Southeastern Railway Company, in payment of a subscription of that amount by the town to the capital stock of that company.

The bill sets forth the following circumstances under which the bonds were issued and the taxes assessed, and claims that it appears therefrom that the bonds were issued and the taxes assessed without any lawful authority.

By an act of the legislature, passed March 5th, 1867, (Private Laws 1867, vol. 1, p. 841,) entitled “An act to authorize the city of Belleville and the town of Mascoutah to issue bonds,” it was enacted,

“Sec. 1. That the city council of the city of Belleville, of the county of St. Clair, State of Illinois, may authorize the mayor and register to issue bonds in such amounts as the said city council may determine upon by ordinance, payable in not less than ten years nor more than twenty years, and bearing ten per cent interest per annum. The proceeds of said bonds shall be applied as subscription to stock of any plank, McAdam or railroad now being built, or hereafter to be built, leading to or from the city of Belleville. Said bonds shall not be sold or disposed of for less than par; and provided further, that no such bonds shall be issued unless a majority of the tax-payers to whom the question shall be submitted shall have decided in favor thereof.

Sec. 2. This act shall also apply to and be in force for the use and benefit of the town of Mascoutah, in the county of St. Clair.”

At a meeting of the president and board of trustees of the town of Mascoutah, held on the 6th day of May, 1867, the following resolution was passed: “ Resolved, That an election be held of the tax-payers of the town of Mascoutah, to vote for or against railroad appropriation, authorized by an act entitled ‘An act to authorize the city of Belleville and the town of Mascoutah to issue bonds,’ approved March 5, 1867, and that the amount that may be so appropriated shall not exceed twenty thousand dollars.”

At another meeting of the board, held on the 10th day of May, 1867, it was

“ Resolved, That the election ordered in last meeting be held June 8th, 1867, and that the clerk have 500 election tickets printed, the votes to be ‘For Railroad Appropriation,’ ‘Against Railroad Appropriation,’ and to order fifty posters to be stuck up in said town, giving notice of said election, in both languages.”

The board held another meeting on the 2d day of September, 1867, at which “the poll books of the election held June 8, 1867, for or against railroad appropriation, were received, and upon examination it was found that 218 votes were cast for, and 50 votes against appropriation.”

At another meeting of the board, held on the 7th day of June, 1869, it was

“ Resolved, That an election be held July 5, 1869, in C. Lischer's office, to vote for or against subscribing additional thirty thousand dollars to any railroad leading to or from Mascoutah; this being in addition to the twenty thousand dollars already voted upon; and the clerk to post up notices of said election, and notify the board of registry.”

On the 8th day of July, 1869, the board held a meeting, and made this record of their proceedings, to-wit:

“The poll book of the election held July 5, for subscribing $30,000 additional to railroads, was then examined, and found that, for subscription received 255 votes, against subscription received 28 votes; and on motion of Mollman, it was resolved, that the poll books be approved.”

At a meeting of the board, held on the 3d of January, 1870, the following ordinance was adopted: “ An ordinance for securing to the town of Mascoutah the benefit to be derived from the construction and operation of the St. Louis and South Eastern Railway.

SECTION 1. Be it ordained by the President and Board of Town Trustees of the town of Mascoutah, That the twenty thousand dollars voted for railroad purposes by the legal voters of the town of Mascoutah on the 8th day of June, 1867, and additional sum of thirty thousand dollars, voted by the legal voters of said town on the 5th day of July, 1869, for similar purposes (all under an act approved March 5, 1867, authorizing the city of Belleville and town of Mascoutah to issue bonds and make appropriations for railroad purposes,) be subscribed to the capital stock of the St. Louis and South Eastern Railway Company, at par, upon the request of said company, by the president of said board of trustees of the town of Mascoutah, for and in behalf of the people of said town and the legal voters thereof; and when said sum of fifty thousand dollars shall be subscribed, it shall be binding on the said town and the tax-payers thereof, upon the following conditions:

First. Said railway shall be located and constructed from East St. Louis to Mascoutah, and the track thereof shall be laid on such location not beyond the present survey opposite north or south of Mill street, measured from the point where Market street crosses the said Mill street.

Second. The said company shall deliver to the board of trustees of said town certificates of the capital stock of said company equal in amount to the said sum of fifty thousand dollars, and whenever regular trains shall be running from East St. Louis to Mascoutah, and a depot is erected within the limits of said town, said company shall be entitled to demand and receive the bonds of said town to the amount of fifty thousand dollars in payment for the said subscription; said bonds shall be in such form, tenor, and for such amount, not exceeding one thousand dollars each, payable at such place and at such times, not inconsistent with the laws under which they are issued, as may be requested by said company, and shall bear interest at the rate of ten per cent per annum, and shall be valid only if registered by the State Auditor, according to an act entitled ‘An act to fund or provide for paying railroad debts of counties, townships, cities and towns,’ in force April 16, 1869.”

And, thereupon, at the request of the president of the St. Louis and South Eastern Railway Company, the president of the board of trustees of the town of Mascoutah made the subscription on the books of said company.

The following certificate, under oath, appears on file in the office of the Auditor of Public Accounts:

“STATE OF ILLINOIS, COUNTY OF ST. CLAIR,

Mascoutah, Ill., Nov. 14, 1870.

To the Auditor of Public Accounts of the State of Illinois, Springfield, Illinois.

SIR: I herewith transmit to you for registration in your office, under the provisions of the act entitled ‘An act to fund and provide for [paying] the railroad debts of counties, townships, cities and towns,’ in force April 16th, 1869, the following bonds, being fifty in number, dated November first, 1870, amounting to ($50,000) fifty thousand dollars, payable on the first day of November, 1890, and bearing interest at the rate of ten per cent per annum, payable annually. These bonds are issued by the town of Mascoutah, in the county of St. Clair, and State of Illinois, to the St. Louis and South Eastern Railway Company, under and by authority of the provisions of ‘An act to authorize the city of Belleville and the town of Mascoutah to issue bonds,’ approved March 5th, 1867. And I, as president of said town of Mascoutah, do hereby certify that all the preliminary conditions in the act in force April 16, 1869, required to be done to authorize the registration of these bonds, and to entitle them to the benefits of the said act last referred to, have been fully complied with, to the best of my knowledge and belief.

VALENTINE LIEBIG,

President Board of Trustees of town of Mascoutah.”

On the 21st of November, 1870, the Auditor made and transmitted to the county clerk of St. Clair county, his certificate, as required by the act of April 16, 1869, of the estimated rate per centum on the valuation of property in said town requisite to meet the interest to become due to November 1st, 1871, on said bonds, and this per centum amount constitutes the taxes sought to be enjoined. The said act of April 16, 1869, provides that the said per centum shall thereupon (upon the transmission of such certificate to the county clerk) be deemed added to, and a part of, the per centum which is levied by law for purposes of State revenue, and shall be so treated by the clerk in making such estimates and books for the collection of taxes, and that the said tax shall be collected with the State revenue. The cause was heard on a demurrer to the bill, and the demurrer was sustained and a decree entered dismissing the bill. The complainants bring this writ of error.

Mr. THOMAS G. ALLEN, and Mr. SHEPARD BARCLAY, for the plaintiffs in error.

Mr. J. M. HAMILL, and Mr. T. S. CASEY, for the defendants in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The principal point made in favor of the reversal of this decree, is the want of authority to issue the bonds in question.

There is no complaint in the bill of the omission of any required condition preliminary to the making of the subscription or issuing of the bonds, or of any irregularity in the exercise of the power to that end, but the claim made is, that there was an entire want of authority under the law, in the town of Mascoutah, under any circumstances to make the subscription or issue the bonds.

The votes for the subscription were had, and the subscription made, prior...