Marshall v. Silliman

• Court: Illinois Supreme Court
• Writing for the Court: LAWRENCE
• Citation: Marshall v. Silliman, 61 Ill. 218, 1871 WL 8235 (Ill. 1871)
• Decision Date: 30 September 1871
• Parties: EPHRAIM MARSHALL et al.v.EDWARD C. SILLIMAN et al.

61 Ill. 218

1871 WL 8235 (Ill.)

EPHRAIM MARSHALL et al.

v.EDWARD C. SILLIMAN et al.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. WEAD & JACK, for the appellants.

Messrs. HARDING & MCCOY, and Mr. J. S. STEVENS, for the appellees.

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

On the 5th of March, 1867, the legislature passed an act incorporating the Dixon, Peoria & Hannibal Railroad Company. The sixth section authorized townships through which the road might pass to take stock therein, not exceeding $35,000 for each township. The question of subscription was to be submitted to a vote of the people, which was to be taken upon a petition, signed by twenty-five legal voters, being presented to the town clerk, who was thereupon to give twenty days notice of the time and place of holding the election.

Under this law, a petition was presented to the supervisor of Brimfield township, in the county of Peoria, dated July 9th, 1868, signed by twenty-five legal voters, and asking that an election be held on the 3d of August following, to vote upon a subscription of $35,000 to the stock of the road. The petition proposed that the subscription should be upon condition that the road should be graded, bridged and tied within the limits of the town by January 1, 1871, and that the bonds should be issued, $15,000 when the road should be graded, and $20,000 when bridged and tied--the bonds to be payable in ten, fifteen and twenty years. The election was held and the vote was in favor of the subscription.

On the same day with this vote, another was taken, to determine whether the town should subscribe $15,000 in addition to the $35,000. The only authority for taking this vote was derived from the provisions in article 4 of the township organization law, in regard to special town meetings. This vote also resulted in favor of taking the additional stock.

On the 9th of March, 1869, the legislature amended the charter of the company and authorized towns to take stock to the amount of $100,000. Acting under this amendment, on the 13th of April, 1869, another petition for an election, signed by twenty-five voters, was presented to the supervisor, proposing an additional subscription of $25,000, with conditions somewhat similar to those annexed to the first petition. Notice was posted on the same day, and on the 4th of May the vote was taken with the same result as before, and subsequently the town issued its bonds for $75,000, and subscribed to the stock for that amount, being the total of all the sums for which a vote was taken.

The bill in this case was filed by certain tax payers of the town to enjoin the railway company from negotiating the bonds, and the county treasurer from collecting the taxes assessed for payment of interest. The taxes sought to be enjoined are the first that have been assessed for this purpose. On the hearing, the circuit court dismissed the bill.

Before considering separately the different proceedings upon which these bonds were issued, we will refer to one objection, going to the validity of all the bonds. It is very earnestly argued that all acts of the legislature, giving to municipalities the power to take stock in railroad companies and issue bonds therefor, are unconstitutional.

In regard to this, we desire only to say that it can no longer be considered an open question in this court. As to the future, our new constitution has removed this subject from the domain of controversy. As to the past, the decisions of this court, beginning with the case of Prettyman v. Tazewell County, 19 Ill. 406, and repeated in numerous cases since that time, have solemnly affirmed the validity of these acts. Under these decisions, and in consequence of them, the counties, towns and cities of the State have issued bonds amounting, in the aggregate, to many millions, and these have gone into the hands of bona fide purchasers all over the commercial world.

If, under these circumstances, this court were to reverse its decisions, and thereby destroy the value of this immense amount of property, nay, if we were to treat the question as one admitting of discussion, we should show but a poor appreciation of the responsible duties of our office. If the question were a new one, we know not to which side our deliberations might incline us, but the highest considerations of justice require us to follow, unhesitatingly, decisions which have drawn after them consequences so important. They have the peculiar sacredness which attaches to decisions that have become established rules of property. Indeed, we could probably pronounce no judgment affecting the title to realty, that would cause such loss to persons acting on the faith of former decisions, as the one we are now asked to render.

The legislature can repeal a statute without disturbance of vested rights, for such repeal acts only upon the future. But a reversal of a judicial decision acts upon all the past, and sweeps away all the rights acquired upon faith in a rule declared by the court of last resort to be the law. Hence the doctrine of stare decisis, and no case could more cogently demand its application than the one before us. We decline, therefore, to consider the argument upon this point, remarking, however, that the former decisions of this court are in accord with those made by the highest courts of almost every State in the Union.

We proceed to the consideration of these different votes.

There are but two objections taken to the vote for the $35,000. They are, first, that the notice of the vote or election given by the supervisor did not specify the conditions above stated, named in the petition to him, signed by the twenty-five voters, on which they proposed to have the bonds issued; and, second, that the vote for the $15,000 was held at the same time. Neither of these objections has any validity. The law merely required the supervisor, upon petition, to give a notice, and this he did. It is true, the public might have inferred from the notice that the vote was to be upon the issue of bonds, without conditions for the protection of the township. If that were so, the effect would simply have been that more persons would be induced to go to the polls for the purpose of defeating the project than would have gone if the notice had specified the conditions. If the notice had specified them, and they had been subsequently disregarded, there might have been excellent ground of complaint. But the notice was in a form best adapted to draw out all the opposition to the proposed vote, and if the conditions were observed in issuing the bonds, as we presume they were, in the absence of objection on that ground, the tax payers have no cause for complaint. Their interests have been guarded in a greater degree than the notice of the vote indicated they would be, in case there should be a majority for subscription.

As to the other objection, we do not see what bearing the separate vote for the $15,000 had upon the vote for the $35,000, or how it affected the validity of the latter.

As to the vote for the $15,000, it is not claimed by counsel for appellees that it was valid at the time. The charter authorized $35,000, and only that sum, to be subscribed by the town, and the vote upon this was to be taken in a manner specially pointed out. That mode was adopted in reference to the vote for that sum. But the vote for the $15,000 was simply a vote at a special town meeting, called on the application of twelve voters, under the general township organization law, which conferred no authority whatever on the township authorities to hold this election. It was an utterly void proceeding. The town had no power to take railway stock and issue railway bonds independently of legislative action, and this vote could give none. The law limited the stock to $35,000.

It is, however, insisted by appellees, that an act of the legislature, passed April 17th, 1869, made the election and the bonds issued thereunder valid. That act is as follows, and will be found in vol. 3 of Private Laws of 1869, p. 372:

“SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That a certain election held in the township of Brimfield, in Peoria county, on the third day of August, 1868, at which a majority of the legal voters in said township, in special town meeting, voted to subscribe for and take $15,000 of the capital stock of the...