Gaddis v. Richland County.

• Decision Date: 30 June 1879
• Citation: 1879 WL 8487,92 Ill. 119
• Parties: GORY GADDISv.RICHLAND COUNTY.
• Court: Illinois Supreme Court

92 Ill. 119

1879 WL 8487 (Ill.)

GORY GADDIS

v.RICHLAND COUNTY.

Supreme Court of Illinois.

June Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Richland county; the Hon. JAMES C. ALLEN, Judge, presiding.

Mr. R. S. CANBY, for the appellant.

Mr. J. M. LONGNECKER, and Mr. M. MILLARD, for the appellee.

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

This was an action of assumpsit, brought in the Richland circuit court, by appellant, against the county, to recover the money claimed to be due on a coupon of a bond executed by the chairman of the board of supervisors, under a resolution requiring him to issue the same. The bond was one of a series aggregating $200,000, bearing ten per cent interest per annum, three per cent of which was to form a sinking fund to pay the principal. The coupon was due when suit was instituted. It was payable to bearer and was owned by appellant.

To the declaration the county filed the plea of the general issue, and gave notice of special matter that would be relied on in defence. But it was such as could be given in evidence under the general issue, so far as it amounted to a defence. A jury was waived, and a trial had by the court, and the issues were found for the defendant, and, after overruling a motion for a new trial, judgment was rendered against plaintiff for costs, and he appeals to this court and assigns errors.

It is stipulated by the parties that the main question is, whether the curative act of April 9, 1869, (Priv. Laws, vol. 3, p. 360,) is valid and sufficient to legalize the elections authorizing the board of supervisors to issue the bond in question. On an inspection of the record and arguments presented we find that the question of the constitutionality of the law referred to in the stipulation fairly arises in the decision of the case, and the appeal is properly prosecuted to this court.

On the 1st of March, 1867, an act was adopted amending the charter of the Grayville and Mattoon Railroad Company. The amendment authorizes counties to subscribe to its stock in a sum not exceeding $200,000. (Priv. Laws, vol. 2, p. 736.) That act, in its various sections, confers power on the county courts of the counties to subscribe for stock in the company in like manner and with like effect as was authorized by the act of November 6, 1849. But a subscription could not be made by the county court until sanctioned by a vote of the people of the county. The entire act refers to the county court as the body which shall call the election, prescribe the conditions, make the subscription and issue the bonds. The board of supervisors are not named or referred to in the act. The act of 1849 referred to, only confers power on county courts to call elections and subscribe for stock. If the power may be exercised under that act by the board of supervisors in counties afterwards acting under township organization, it would not apply to counties so organized when the authority is specifically conferred on the county court.

This county adopted township organization as early as in 1858, and has so continued ever since. An election was held in the county on the 7th day of April, 1868, to determine whether the county would subscribe $150,000 to the stock of the road. This election was ordered and the time was fixed by the board of supervisors, but the clerk gave no notice of an election; but notice of the time and place of holding the election was given by the supervisor in each of the several townships. The election was held, and resulted in favor of the subscription.

On the 1st of December, 1868, under an order by the board for and a notice of an election, to determine whether the county would subscribe $50,000 more to the stock of the company, it was determined in favor of subscription.

The elections having been called and held under the direction of the board of supervisors, and not by the county court, an act of the General Assembly was adopted on the 9th of April, 1869, to cure irregularities in these elections and to render valid the steps taken to make the subscription and to issue the bonds.

Section 3 of that act, (Priv. Laws, vol. 3, p. 360,) provides, “that all elections held for the purpose of voting said stock, and the manner in which stock was voted, are hereby legalized in all respects, and said stock to be subscribed in the manner the same was voted.” This is the provision which is claimed to be repugnant to the constitution.

All will concede that a municipality can only exercise the powers conferred by the charter of their organization, and such powers must be by express grant or such as follow by reasonable implication as necessary to perform duties imposed or privileges conferred, and the means of their accomplishment are not specified. This being a fundamental rule, it follows that the power to create a debt by a county or to subscribe to stock in a railroad, or to issue bonds to raise money to aid in its construction, must be conferred by grant from the law-making power, and when the grant is made and the power is conferred it must be substantially pursued. If a particular mode is prescribed the municipality can not adopt a different mode, and if the power is conferred on one set of officials or individuals, it can not act through or by a different set of officials or persons. The municipality have no discretion in executing the power, nor can they adopt a mode they deem better adapted to accomplish the end. The General Assembly had the power to confer the authority or to withhold it, or, in conferring it, to impose such terms and conditions as they chose. It was an exercise of power by them in the government of the State, and that body were the sole judges as to the manner in which the power should be exercised, and the functionaries or individuals who should exercise it.

In this case the General Assembly conferred the power on the county court, and we must presume when the power was granted the General Assembly knew that this county was under township organization, and had a board of supervisors as well as a county court, and knowing that fact, we must conclude that body, for reasons satisfactory to themselves, intended to confer the power on the county court, and not on the board of supervisors. But if not apprised of the fact we can not say that, had it been known, the enactment would have been different. The expression of one thing or one mode of action in an enactment is usually held to be an exclusion of all other things or modes. The language is plain and unambiguous when it says the county court may call an election, subscribe for stock of the road and issue bonds as directed. The language neither requires nor admits of interpretation. No one can be in any, the least doubt of its meaning.

The power, then, having been conferred on the county court, it could alone act in carrying out the power. No other functionary, body or individual could act, simply for the want of power. See Schuyler County v. The People, 25 Ill. 181; Marshall County v. Cook, 38 Id. 45; Clarke v. Board of Supervisors, 27 Id. 305; Force v. Town of Batavia, 61 Id. 99, and Harding v. Rockford, Rock Island and St. Louis Railroad Co. 65 Id. 90. The first of these cases is in point, as the material facts of the two cases are similar and not distinguishable.

In the case of Marshall County v. Cook, supra, the county court acted in ordering the election when the power was vested in the board of supervisors. There, after the election had been held, the board then acted, and the bonds were issued under and in pursuance of an order of the board,...