Post v. Pulaski County

• Decision Date: 01 January 1891
• Citation: 47 F. 282
• Parties: POST v. COUNTY OF PULASKI.
• Court: U.S. District Court — Southern District of Illinois

47 F. 282

POST v. COUNTY OF PULASKI.

United States Circuit Court, S.D. Illinois.

June Term, 1891

Connolly & Mather, for plaintiff.

Brown Wheeler & Brown and L. M. Bradley, for defendant.

ALLEN J.

This action was prosecuted on 196 interest coupons attached to 36 railroad aid bonds issued by Pulaski county on the 17th day of October, 1872, in part payment of a $100,000 subscription to the capital stock of the Cairo & Vincennes Railroad Company. The subscription was made under the tenth section of the Cairo & Vincennes Railroad charter, to be found in volume 2 of the Private Laws of the State of Illinois, passed in 1867, and is as follows:

'Sec 10. The several towns, cities, or counties through or near which said railroad shall pass may subscribe for and take stock in this company, and may issue bonds in payment of such stock of five hundred dollars each, bearing interest at the rate of eight (8) per cent. per annum or less payable half-yearly, in the city of New York, on the first day of January and July of each year, and bonds to run not longer than twenty-five years. And a tax of not more than one dollar on each hundred dollars' worth of taxable property may be levied and collected in such town, city, or county, per annum, to pay the installment on such stock, or to pay the interest and principal of bonds issued in payment for such stock; provided, that no such subscription shall be made, no such bonds shall be issued, and no such tax shall be levied unless a majority of the legal voters of said town, city, or county shall vote for the same at an election to be held under order of the corporate authorities in cases of towns and cities, and of the county court in cases of counties: provided, further, that a majority of the legal voters at any such election shall be held as a majority of the legal voters of any such town, city, or county; and the questions of making a subscription, issuing bonds, and levying taxes may be submitted as one question, or as separate questions, at such election; and either or all of said questions may be submitted to an election at any time, in the discretion of the authorities authorized to call such election.'

One of the principal questions arising in the case is as to whether it devolved upon the plaintiff to prove on the trial that notice of the election under which the subscription was made had been duly given. No sufficient evidence to establish that fact was offered, and the plaintiff's contention is,-- First, that, under the tenth section of the charter above quoted, authority is expressly given to the county to subscribe stock, and that a notice of the election was not necessary; second, that, if such notice was necessary, the legal presumption is that it was given; and, third, that the county authorities, having recited on the face of the bonds that the election was held pursuant to law, are now estopped from denying that there was the proper legal notice.

The first is deemed insufficient. The right of the county to subscribe stock, it is admitted, rests upon the power, conferred by the tenth section of the charter. This section contains the proviso 'that no such subscription shall be made, no such bonds shall be issued, and no such tax levied unless a majority of the legal voters of said town, city, or county shall vote for the same at an election under the order of the corporate authorities in cases of towns and cities, and of the county court in cases of counties. ' The right of subscription is made to depend upon the express consent of a majority of the legal voters of a county. Every principle of safety and justice necessarily requires a majority of the legal voters to consent to the imposition of so great a burden as the creation of a debt to the amount of $100,000, bearing interest at the rate of 8 per cent. per annum, in aid of a quasi private enterprise. Such municipalities as counties were not created to engage in commerce generally, or to assist in building railroads, but for governmental purposes only. The right to subscribe then depended upon the clearly expressed will of the legal voters at an election held under the order of the county court. But can there be a fair and valid election without notice? The legal voter is not entitled to know when, where, and upon what matter he is called upon to vote. This would seem to be fundamental. All legal elections must be held under some law. If there was nothing said in the charter about notice, the general railroad aid law of 1849 was in full force, requiring 30 days' notice of such an election, and it, at least, should have been observed. Harding v. Railroad Co., 65 Ill. 90.

Nor can the second be accepted. The general proposition that public officers are always presumed to do their duty is not denied, but such presumption cannot waive the indispensably necessary proof in this case. The adoption of the constitution of 1870 marked a new era in the policy of Illinois with reference to municipal subscription and indebtedness, providing, as it did, that--

'No county, city, town, or township, or other municipality, shall ever become subscriber to the capital stock of any railroad or private corporation, or make donation to or loan its credit in aid of such corporation: provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption.'

Since that time all bonds issued by this class of corporations are prima facie invalid, and the...