Kenicott v. the Supervisors

• Decision Date: 01 December 1872
• Citation: 16 Wall. 452,21 L.Ed. 319,83 U.S. 452
• Parties: KENICOTT v. THE SUPERVISORS
• Court: U.S. Supreme Court

83 U.S. 452

21 L.Ed. 319

16 Wall. 452

KENICOTT v. THE SUPERVISORS.

December Term, 1872

APPEAL from the Circuit Court for the Southern District of Illinois; the case being thus:

The Central Railroad of Illinois runs, in a large part of its course, north and south through the State just named. The great extent of its course, and the important places through which it passes or to which it leads, made it a matter very desirable to the towns in adjoining districts on the east and west of it to connect themselves by other railroads with it. Among the towns on the east, and about eighteen miles to the east of the road, was Mount Vernon, a place situate in Jefferson County, a county on the east of the road, whose course runs parallel to the whole of the western line of the county. This town, moving early in the matter, the legislature of Illinois, in February, 1855, chartered a company, called the Mount Vernon Railroad Company, whose immediate purpose was, with the aid of a mortgage on certain lands in Jefferson County, known as the 'swamp and overflowed lands,' to build a road from Mount Vernon, in Jefferson County aforesaid, to the Illinois Central. Such a road, of course, would run west through the estern part of Jefferson County, cross its western line, and connect soon after with the desired trunk of the Illinois Central.

The charter, in its seventh, eighth, and ninth sections, reads thus:

'SECTION 7. The corporation may borrow such sums of money as they deem advisable, and upon such terms as they may agree for the carrying out of the objects of this act, and may provide any security therefor they think best, by bond and mortgage, or otherwise.

'SECTION 8. The County Court of Jefferson County are hereby authorized and empowered to subscribe for such amount of the capital stock of said company as they may think proper. They may issue the bonds of the county, and provide for the payment of the principal and interest thereof, by sale or mortgage one or both, of the swamp and overflowed lands of said county, and dispose of such bonds for money to pay, or in payment of their subscription to said stock; all and each to be upon such time, terms, and in such mode as they may deem best; or they may make such other disposition of said swamp and overflowed lands in aid of the construction and maintenance of said railroad as they deem best for the public interest of said county.

'SECTION 9. Before any disposition is made of said swamp and overflowed lands, or any subscription to the stock of said company, the said County Court may, at any regular or special term of said court, order a special election to be held for the purpose of taking the sense of the qualified voters of the county thereupon—giving such notice thereof as they may deem proper—and which shall be conducted, and returns made, canvassed, and published in all respects as other county elections. The County Court shall prepare a proposition or propositions of the mode or modes, one or more, containing a brief, clear, distinct idea of the plan or plans proposed by them for aiding in constructing of said road; which said proposition shall be printed at large as an election ticket, and the voters may express their will on said proposition by writing 'Yea' and 'Nay' on a separate ticket. The proposition or plan having the highest number of votes shall be adopted by the County Court.'

But in addition to the sections thus quoted followed another and very important one in these words:

'SECTION 10. Any county through which said road may run, and every county through which any other railroad may run with which this road may be joined, connected, or intersected, may, and are hereby authorized and empowered to aid in the construction of the same, or of such other road with which it may so connect; and for this purpose the provisions of the seventh, eighth, and ninth sections of this act shall extend, include, and be applicable to every such county, and every such railroad.'

So far as to Jefferson County; and this 10th section.

On the east again of Jefferson County, and, like it, having 'swamp and overflowed lands,' and like it interested in gaining a connection with the great trunk of the Illinois Central, was Wayne County; the west line of this county being about eleven miles east of the town of Mount Vernon.

On the same day of February, 1855, when the charter already mentioned was granted, a charter had been granted to another company, named the Belleville and Fairfield Railroad Company, whose purpose was the construction of a road from Belleville (a place in Illinois near St. Louis, and west of the Illinois Central), through Nashville (Illinois) and Mount Vernon, to Fairfield, a place in Illinois nearly east of Mount Vernon, and so finally to Louisville, Kentucky. This road, which ran from west to east, was chartered so as to run through both the counties of Jefferson and Wayne, and by the terms of the 10th section of the Mount Vernon road might 'be joined, connected, or intersected' with it.

This charter to the Belleville and Fairfield road being in existence, the County Court of Wayne County, on the 1 th of March, 1856, made a deed of its swamp lands to one Charles Wood, in trust for that company or any other company that would build a railroad through the county. This deed recited that a connection had been made between the Mount Vernon and the Belleville and Fairfield roads, by which the latter would become a part of and elongation of the former; that the power to appropriate the swamp lands in Wayne County through which the said road was situated was brought into operation; that a vote had been taken in November, 1855, to appropriate and donate said lands for the purpose of aiding in constructing the said road, and that this power had been conferred by the 9th section of the charter of the Mount Vernon company, and that in execution of such authority and power the deed was made by the County Court. The deed contained a proviso, that if the road should not be made in a certain time the land should be reconveyed by Wood to the county.

An act of the Illinois legislature, passed February 14th, 1857, amendatory of the charter of this Belleville and Fairfield company, and extending its line of transit, changed the name of the company to 'The St. Louis and Louisville Railroad Company.' The proposed line of the road as thus enlarged crossed the Illinois Central and was located directly through five different counties, of which Wayne was one. The act declared:

'SECTION 4. The vote heretofore taken in Wayne County to donate the swamp lands to the Belleville and Fairfield Railroad Company, &c., and the conveyance of said land by the County Court of said county in trust for the use of the said railroad company are, and the same are hereby declared to be legal and valid.

'SECTION 5. Each county through which said railroad runs may donate the swamp lands of such county to the St. Louis and Louisville Railroad.'

In this state of things the county of Wayne held an election in November, 1858, in which the question was thus proposed to the voters:

'For appropriating the swamp lands of Wayne County as a bonus to any company for building a railroad through said county.

'Against the same.'

A majority of votes was cast in favor of the proposition, and thereupon soon after this time two persons, named Van Duser and Smith, entered into a contract with Wayne County for building that part of the road of the Belleville and Fairfield company (or, as it now was, the St. Louis and Louisville company) lying between the east line of Wayne County and Mount Vernon, thus running across the entire width of Wayne County. This contract having been partially executed by Van Duser and Smith was assigned to the Mount Vernon Railroad Company, in which they had become the chief stockholders, and that company undertook the construction of this portion of the road.

The county of Jefferson entered into a like contract for the construction of the Mount Vernon road, from Mount Vernon to the Illinois Central.

On the 20th of April, 1859, S. J. Wilson and T. M. Scott, judges of the County Court of Wayne County, mortgaged the whole, about 100,000 acres, of the swamp and overflowed lands of the county to Isaac Seymour, of New York, in trust to secure the payment of bonds to the amount of $800,000, to be issued by the Mount Vernon Railroad Company. The recitals of the mortgage ran thus:

'WHEREAS, The Congress of the United States duly passed an act, approved September the 28th, A.D. 1850, entitled 'An act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits,' and in pursuance thereof the Secretary of the Interior of the United States caused a patent to be issued to the State of Illinois for all the swamp and overflowed lands within its limits, to be situated under the direction of the commissioners of the Land Office:

'And whereas, The legislature of the said State of Illinois passed an act, approved by the governor of said State on the 22d of January, A.D. 1852, entitled 'An act to dispose of the swamp and overflowed lands, and to pay the expenses o selecting and surveying the same,' which said act authorized the appropriation and disposal of said lands for such purposes as may be deemed expedient by the court or county judges:

'And whereas, The legislature of the State of Illinois passed an act, approved by the governor of said State on the 15th of February, A.D. 1855, entitled 'An act to incorporate the Mount Vernon Railroad Company,' whereby all such persons and corporations as shall become stockholders under the provisions of the said act, and their successors, were duly incorporated into a body politic and corporate under the name of the Mount Vernon Railroad Company, and the parties of the first part were duly authorized and empowered to make such disposition of the swamp and overflowed lands within the said county of Wayne, in aid of...