People Ex Rel. the Paris v. Holden

• Decision Date: 30 June 1876
• Citation: 1876 WL 10139,82 Ill. 93
• Parties: THE PEOPLE ex rel. The Paris and Danville R. R. Co.v.JOHN G. HOLDEN et al.
• Court: Illinois Supreme Court

82 Ill. 93

1876 WL 10139 (Ill.)

THE PEOPLE ex rel. The Paris and Danville R. R. Co.

v.JOHN G. HOLDEN et al.

Supreme Court of Illinois.

June Term, 1876.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Vermilion county; the Hon. OLIVER L. DAVIS, Judge, presiding.

Messrs. HENRY & PENWELL, and Messrs. MANN & CALHOUN, for the plaintiffs in error.

Messrs. EVANS & SWALLOW, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

At the February term, 1876, of the Vermilion circuit court, the people of this State, on the relation of the Paris and Danville Railroad Company, a body politic and corporate under a law of this State, presented a petition to the court, praying that a peremptory writ of mandamus be awarded against the supervisor and town clerk of the town of Danville, in said county, commanding them to make a subscription of twenty-five thousand dollars to the capital stock of that incorporation, and to issue bonds of that township for that amount, in accordance with the provisions of the act of incorporation and the terms of the vote in that behalf.

The petition refers to the act of the General Assembly of this State, approved March 26, 1869, incorporating the Paris and Danville Railroad Company, and sets out the petition to the supervisor of Danville township that an election might be ordered, the notice given of the election, the returns thereof and canvassing the same, by which it appeared a large majority of the votes cast at the election were cast in favor of the subscription.

The petition then avers, on this fact being ascertained, it then and there became the duty of the supervisor and clerk of the township to subscribe, at the request of the company, the sum of twenty-five thousand dollars, the amount so voted, to the capital stock of the company, and to issue and deliver to the company the bonds of the township for that amount, upon the terms and conditions in said petition mentioned, and made due and payable at the time and in the manner in the petition mentioned, upon the tendering by the company to the supervisor and clerk twenty-five thousand dollars of the capital stock of the company, and otherwise complying with the conditions of the vote.

It appears the petition of the voters to the supervisor was to this effect: that the question of subscribing twenty-five thousand dollars to the capital stock of this company should be submitted at an election to be held on the -- day of December, 1869; but it further provided for the payment of the subscription in these terms: said subscription to be paid on the following express condition, that is to say, said subscription to be paid by the bonds of said township, payable in fifteen years absolutely, or sooner, at the option of said township, and to bear interest at the rate of seven per centum per annum, and said bonds are not to bear date, nor to be delivered, nor to bear interest, until the railroad is completed, equipped with rolling stock and running in successful operation from Paris, in Edgar county, in and to the city of Danville, Vermilion county, Illinois; and upon the further express condition, that no part of said railroad shall be located or built west of the north fork of the Vermilion river, in said city of Danville, and that said railroad should be completed and in successful operation from Paris to Danville within five years from this date, and dated November 6, 1869.

The election notice issued upon this petition recites the same, filling the blank of the day of the election with the figures 11th; so that the day of election should be the 11th day of December, 1869. The ticket voted contains substantially the same conditions.

The petition alleges that, within five years from the date of the petition for an election, the railroad company, relying upon this vote and subscription, had built and completed the railroad track from Paris, in Edgar county, to a point in Danville township, on the line of the Toledo, Wabash and Western Railway Company, about one mile from the city of Danville, and had made an arrangement with and leased from that company, whereby the petitioners' company had the right to run its cars on the track of the Toledo, Wabash and Western Railway Company, in and to the city of Danville, which was substantially the completion of their railroad from Paris to the city of Danville; and they had their line of road equipped with rolling stock and in successful operation from Paris to Danville, and that they continued, under this arrangement, to operate their railroad until they extended their track. This extension of track is alleged to have been made by the month of September, 1875, and was from the point of intersection with the Toledo, Wabash and Western Railway Company, to a point on the west side of the north fork of the Vermilion river, directly opposite to the west line of the city of Danville, from which point it crossed the north fork into the city, and that no part of their railway was or is located or built west of the north fork of the Vermilion river, in the city of Danville; and averring that the railroad is in full and successful operation over said track as extended, and from Paris to Danville.

It is further alleged, that after the election to subscribe for this stock, and after the company had constructed its road to its intersection with the Toledo, Wabash and Western Railway, and after it was running to Danville under the arrangement made with the Toledo, Wabash and Western Railway Company, the petitioners caused twenty-five thousand dollars of their capital stock to be duly executed, and, on _____ day, tendered the same to the supervisor and town clerk of Danville township, and then and there specially requested the supervisor and town clerk to make the subscription voted, which they refused to do, which refusal greatly embarrassed the petitioners financially, and, by reason of this refusal, the petitioners were hindered and delayed in pushing the road to completion within the five years, from its intersection with the Toledo, Wabash and Western road to its present terminus in the city of Danville, which could readily have been done within the five years, had the township officers discharged their duty at the time requested.

It is further alleged, that within three years from the date of their petition the railroad was completed, equipped with rolling stock and in successful operation from Paris to Danville, by means of the arrangement with the Toledo, Wabash and Western Railway Company, and from that time, thenceforward, they have been able to, and have accommodated the township and city of Danville and the public, in carrying freight and passengers between these cities, as fully and as perfectly as they could have done if the railroad had been completed to its present terminus in the city of Danville, and, therefore, it became the duty of the supervisor and town clerk to make the subscription and issue the bonds of the township, upon the request of the company and the tender of the capital stock to the amount of twenty-five thousand dollars.

And it is further averred, that on the first day of January, 1874, the railroad company caused to be tendered to those officers twenty-five thousand dollars of the capital stock of the railroad company, duly executed, and then and there demanded that the subscription should be made and the bonds issued, but that the supervisor and clerk refused, and ever since have refused, in disregard of the duty imposed upon them by law. They further allege, they have the amount of stock ready, in court, duly executed, to be delivered to the supervisor and clerk, and will keep and maintain the tender in open court. To the petition containing these allegations there was a demurrer, which was sustained by the court, the petition denied, and judgment rendered against the petitioners for costs. By agreement, the record is taken to the southern division by writ of error.

The demurrer brings before us the whole record, and we must determine, from an inspection of it, whether sufficient facts are pleaded to authorize the writ, for the demurrer admits all the facts well pleaded.

Unlike in other cases of this character, in this there is no question of power, and no...