Hutchinson v. Self

• Decision Date: 26 November 1894
• Citation: 39 N.E. 27,153 Ill. 542
• Parties: HUTCHINSON et al. v. SELF, Collector.
• Court: Illinois Supreme Court

153 Ill. 542

39 N.E. 27

HUTCHINSON et al.

v.SELF, Collector.¹

Supreme Court of Illinois.

Nov. 26, 1894.

Appeal from Morgan county court; Owen P. Thompson, Judge.

Application of James F. Self, collector of taxes, for judgment against the lands of James E. Hutchinson and others for delinquent taxes. Judgment was rendered therefor, and defendants appeal. Affirmed.Gross & Broadwell, for appellants.

CARTER, J.

This is an appeal from a judgment rendered by the county court of Morgan county against certain lands of appellants returned as delinquent by appellee, as collector of said county, for the taxes of 1890. Appellants, as owners of said lands, tendered in apt time all taxes except the tax designated ‘City Bond Tax,’ and filed numerous objections to the rendition of judgment, alleging that said tax was for the payment of interest on railroad aid bonds issued by the town of Waverly, November 1, 1870, to the Jacksonville Northwestern & Southeastern Railway Company, and that said bonds were illegal and void. On the hearing, evidence was introduced showing the tax in question was for the payment of interest on these bonds; that in pursuance of a vote of a majority of the legal voters of the town, at an election held on the 17th day of June, 1870, purporting to authorize the town authorities to subscribe $30,000 to the capital stock of the company, the corporate authorities had issued the bonds to the amount of the stock to be subscribed; that the bonds were duly registered in the office of the auditor of state, December 5, 1870, pursuant to the provisions of an act entitled, ‘An act to fund and provide for paying the railroad debts of counties, townships, cities, and towns,’ in force April 16, 1869, and that the auditor had on November 17, 1890, certified to the county clerk of Morgan county the rate per centum of tax to be levied on the property in the town of Waverly for that year to pay the interest on said bonds; that Waverly had become incorporated as a city, and that no levy had been made by it of the tax in question. Some evidence was also introduced as to the calling of said election of June 17, 1870, and as to whether or not any notice of the election had been given as required by the statute; but this evidence will be noticed at another place. The county court overruled the objections, and rendered judgment against appellants' lands for the amount of the tax, and appellants, having preserved their exceptions, now prosecute this appeal. No brief or argument has been filed in this court by appellee, but we have been much assisted in the investigation by the able brief and argument filed by counsel for appellants.

In the first place, it is contended by counsel for appellants that the town of Waverly was never authorized by the legislature to issue the bonds in question. It is contended that the act of November 5, 1849 (Laws 1849, 2d Sess. p. 33), authorized only counties and cities to issue bonds in aid of railroads, and that the provisions of the act of February 23, 1867, incorporating the railroad in question (2 Priv. Laws 1867, p. 709), purporting to extend the act of 1849 to incorporated towns, was repugnant to that provision in the constitution of 1848, then in force, which provided that: ‘No private or local law which may be passed by the general assembly, shall embrace more than one subject and that shall be expressed in the title.’ The title of the act incorporating the company is: ‘An act to incorporate the Jacksonville Northwestern and Southeastern Railway Company.’ Section 18 of this act declares and makes the act of November 5, 1849, above mentioned, applicable to towns, and provides as follows: That it (said act of 1849) shall be ‘applicable to each and every town now incorporated, or that may hereafter be incorporated situated at either end or near the line of said railway, as it may hereafter be surveyed and located; and the corporate authorities of any such town, may order an election or elections to be held in such towns by the legal voters thereof, upon the question whether the town in its corporate capacity will or will not subscribe to the capital stock of said railway company, any sum not exceeding fifty thousand dollars; and in case any such election shall be held the same shall be conducted as the town elections, and if at any such election a majority of the voters voting shall be in favor of making such subscription, the provisions of the two acts recited in this section, and also of all other general laws relating to subscriptions by counties or cities to the capital stock of railroad companies, shall apply to and govern the corporate authorities of such town in making such subscriptions, so far as the same is applicable; and in all the subsequent proceedings relating thereto, and the rights of said town shall be the same, with the like remedies to enforce such rights as the rights and remedies of counties in cases of county subscriptions.’ 2 Priv. Laws 1867, pp. 714, 715. Counsel insist that the subject-matter of the section of the charter of the company is to amend and enlarge the scope of the act of 1849 so as to include a class of municipalities not theretofore included in the act of 1849, and has no relation to the incorporation of the company, and, not being expressed in the title, said section 18 is unconstitutional and void. This court has, however, settled this question adversely to appellants' contention. In Town of Abington v. Cabeen, 106 Ill. 200, the decisions bearing upon the question here raised were reviewed, and it was held that it was germane to the purpose of the act of incorporation of the railroad company to confer on municipalities the power to subscribe to the capital stock of the company, to issue bonds of the town therefor, and to provide the mode of the exercise of such power. It was there said: ‘The title adopted being sufficient to apprise the legislators fairly of the general subject-matter of the act, all provisions therein fairly related to that general subject, and designed to conduce to the building of the road named, must, in the light of previous decisions of this court, be held to be fairly embraced in the title adopted.’

It is next contended that said section 18 of the charter of the company, so far as it extended the act of 1849 to towns then, or thereafter to be, incorporated, was repealed by the act incorporating the town of Waverly. The act incorporating the railroad company became a law on February 23, 1867, and it is said that at that time the town of Waverly did not exist, but was first incorporated two days later,-February 25, 1867,-by special charter, which specifically enumerated all of the corporate powers of the town, and that the power to subscribe for stock in, and to issue bonds in aid of, this railroad company, is not found among such enumerated powers; and that, to remove all doubt on the subject, the twenty-eighth section provided that ‘all acts or parts of acts coming within the provisions of this act contrary to or inconsistent with its provisions, are hereby repealed.’ 3 Priv. Laws 1867, p. 371. This act is entitled ‘An act to the better provide for the incorporation of the town of Waverly,’ and would indicate that the town was already incorporated; but no prior incorporation has been pointed out. If it had been previously incorporated, the repealing clause in the special act of February 25, 1867, would readily be understood as applicable to its previous charter. But, as we view the question, it is immaterial whether the town had been previously incorporated or not. There was no inconsistency between the provisions of its special charter and the previous acts of the legislature expressly conferring power on such towns to subscribe for stock and issue bonds in aid of railroad companies. The act incorporating the railroad company and the one incorporating the town were passed at the same session. The former made provision for conferring this power on towns thereafter to be incorporated, as well as those already incorporated, and when the latter act was passed, incorporating the town, it, the town, became clothed with this additional power as fully as if it had been expressly embraced in its charter. The two acts must be construed together, and, when so construed, there is no repugnancy between them. Repeals by implication are not favored in law, and there being no express repeal, and no inconsistency between the two acts, it is difficult to see how the repeal was effected. Town of Ottawa v. La Salle Co., 12 Ill. 339; Butz v. Kerr, 123 Ill. 659, 14 N. E. 671. In this construction we are not unmindful of the rule that, where there is any fair or reasonable doubt concerning the existence of such a power in a municipal corporation, such doubt should be resolved against the corporation, and the power denied. In construing the two statutes in question, it is the duty of the court to so construe them as to give effect, if possible, to both, and to every part of each. But if the incorporation of every town subsequent to the passage of the act incorporating the company should be held as excluding from the town the power attempted to be conferred by the charter of the company, unless also contained in the charter of the town, then the provision conferring such power on towns to be thereafter created would be nugatory. Why provide in the charter of the company that all towns thereafter created, situated at either end or near the line of this road, should have the power to subscribe to the stock, and to issue its bonds in aid of the construction, of the road, if the town should not have or exercise such power unless conferred by its own act of incorporation? It could not be material whether the power was contained in the special act of incorporation or in some other act.

It is next insisted that section 18 of the act of February 23, 1867, did not authorize the issue of bonds. It is said that, while this section...