The County of Richland v. the County of Lawrence

• Decision Date: 30 November 1850
• Citation: 2 Peck 1,1850 WL 4304,12 Ill. 1
• Court: Illinois Supreme Court
• Parties: The County of Richland, plaintiffs in error,v.The County of Lawrence, defendants in error.

12 Ill. 1
1850 WL 4304 (Ill.)
2 Peck (IL) 1

The County of Richland, plaintiffs in error,
v.
The County of Lawrence, defendants in error.

Supreme Court of Illinois.

November Term, 1850.

Error to Lawrence.

The money appropriated by the act to establish and maintain a general system of internal improvements, approved February 27, 1837, to the counties through which no railroad or canal was provided to be made, was subject to legislative control, and until definitively appropriated might have been resumed or diverted at the will of the legislature, prior to the passage of the law of 1845, which gave the money absolutely to certain counties.^a

The state may make a contract with, or a grant to a municipal corporation, which it cannot impair or resume.

A grant made to a public corporation for purposes of private advantage, although the public derives a common benefit therefrom, stands on the same footing that it would have done, had it been made to any body of persons.

Public or municipal corporations, existing only for public purposes, possessing only such powers as are granted to them, are subject at all times to the control of the legislature^b

This was a bill filed in the Lawrence Circuit Court, by Richland county, for the purpose of obtaining from the former for the benefit of the latter county, a portion of the fund appropriated by the legislature in 1837 for the benefit of such counties as had not any railroad or canal passing through them. By virtue of this law, Lawrence county received the sum of $11,125.00; subsequently to this appropriation, Richland county was created out of the county of Lawrence and the county of Clay. After the county of Richland was created, the legislature passed a law, directing that Lawrence county should pay out of the fund

[12 Ill. 2]

received as aforesaid, to Richland county, such proportion of the fund as the population of Richland county or that part of the territory taken from Lawrence county, as compared with the whole population, should show Richland county entitled to have.

Lawrence county refused to pay any portion of the fund for the benefit of Richland county. This bill was filed to compel Lawrence county to pay over the money. The bill was dismissed for want of equity, at the September term, 1849, of the Lawrence Circuit Court.

Richland county sued out this writ of error, assigning for error the dismissal of the bill.

A. Kitchell, for county of Richland.

It is insisted that the statute in question violates section 10, article 1 of the constitution of the United States, because it impairs the obligation of a contract. And that it violates section 1, article 1 of the state constitution, because it is an assumption of judicial powers. A statute should never be decided to be unconstitutional, except in cases of clear necessity: Dorman v. Lane, 3 Scam., 240; The People v. Marshall, 1 Gil., 688.

The act does not impair the obligation of a contract. The county is a public corporation and subject to legislative control; she cannot enter into a contract with the state: Sec. 4, Schedule of the Constitution; 1 Greenleaf Ev., sec. 331; 2 Kent, 274, 305; 3 Story's Com. on Const., 260; The People v. Wren, 4 Scam., 273-4; Coles v. The County of Madison, Breese, 120; Commonwealth v. Bent, 1 Missouri, 170-1; Bush v. Shipman, 4 Scam., 191; The People v. Morris, 13 Wend., 337; Holliday v. The People, 5 Gil., 216; Dartmouth College Case, Peters' Cond. Rep., 538, 556, 561.

The entire subserviency of a county to legislative control being established, the power to interfere with, take and dispose of the funds, follows necessarily: Shaw v. Dennis, 5 Gilman, 417; Thomas v. Leland, 24 Wend., 63.

Admitting the county could not be deprived of moneys or funds, which belong to the county for ordinary purposes of expenditure; yet the fund in question was a special public fund, deposited with the county for special purposes. The county

[12 Ill. 3]

was but the trustee for the public use. The legislature continued to exercise control over this appropriation until 1845, when it was given up wholly to the counties: Acts of 1845, p. 50; Acts of 1839, pp. 44, 81, 258, 261; The People v. Moon, 3 Scam., 126; The County of Pike v. The State, 11 Ill. R., 203.

The act is not an assumption of judicial powers: Shaw v. Dennis, 5 Gil., 407; People v. Moon,...