The Town of Fox v. the Town of Kendall.

• Decision Date: 20 November 1880
• Citation: The Town of Fox v. the Town of Kendall., 97 Ill. 72, 1880 WL 10165 (Ill. 1880)
• Parties: THE TOWN OF FOXv.THE TOWN OF KENDALL.
• Court: Illinois Supreme Court

97 Ill. 72

1880 WL 10165 (Ill.)

THE TOWN OF FOX

v.THE TOWN OF KENDALL.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Kendall County; the Hon. CLARK W. UPTON, Judge, presiding.

Messrs. LEWIS & HOBERT, and Mr. H. T. GILBERT, for the appellant.

Mr. CHARLES WHEATON, and Mr. J. M. DURHAM, for the appellee.Mr. JUSTICE WALKER delivered the opinion of the Court:

This action was brought in the Kendall circuit court by the town of Kendall against the town of Fox, under section 16 of the chapter entitled “Paupers.”Both towns are in that county.That section provides, in substance, that where a person shall become chargeable as a pauper within six months after coming into a county or town, who at the beginning of six months next preceding his becoming so chargeable resided in another county or town, it shall be the duty of the last named county or town to take charge of the pauper on receiving notice specified in the act, and on refusal, an action shall lie against the county or town on behalf of the county or town wherein such person became chargeable, to recover the costs and charges expended for such pauper.

Appellee bases its right of recovery on that section and an act approved the 13th of February, 1863, (Pub. Laws, p. 46,) which authorized the county to hold an election to determine whether the several townships of the county should support its own paupers.It is averred that such an election was held on the first Tuesday in April, 1863, in the county of Kendall, resulting in favor of each township supporting its paupers.

In the month of March, 1875, one Mallory came from Kansas to the town of Kendall, and worked there a time; then went to the counties of Livingston and Iroquois on a visit.After his return he labored for several persons residing in Kendall township.In September, 1876, he worked for one Pope, taking with him his trunk and clothing, and worked for him about one month, and boarded with him through the winter.In the following March he occupied a vacant house in the village of Fox, where he lived alone.On the 8th of April he returned to the town of Kendall and worked for a Mrs. Haines at $10 per month.He remained there until the latter part of August, when he became sick, and on the 6th of September he was taken in charge by the town supervisors of the town of Kendall as a pauper.He at that time had $25, and objected to become a pauper.On the 31st of October the town clerk of Kendall mailed a notice to the town of Fox requesting that town to take charge of Mallory.

The General Assembly, we apprehend, have the undeniable right to impose the support of paupers on counties, cities, incorporated villages, or townships, as it may choose.This is a portion of the police power that may be exercised by that body according to its wisdom and sense of right.The duty may be, and it has been the usual course in this country, to impose it on counties, as a burthen, that each shall support its own poor.But there can be no question that it may be imposed on smaller municipal divisions, such as townships, villages, and cities.SeeTown of Freeport v. Board of Supervisors,41 Ill. 495.This being a question of power, neither a municipality nor the courts can obstruct its operation on the ground of policy, or even relieve against hardships incident to the execution of the law.

The General Assembly then had the power to enact the law, and declared it in force in the counties of Kendall and DeKalb without submission to a vote of the people.That was only a matter of choice and not of duty, as it was not essential to the validity of the act that it should have the approval of a majority of the voters of the county.

But it is urged that as the act was approved on the 13th day of February, 1863, and provided that the question whether each township should support its own paupers should be voted on at the next election of town officers, the election could not be held until after the law became operative, and as there were not sixty days after its approval, saying nothing of the adjournment of the General Assembly, under the 23d section of article 3 of the constitution of 1848, it could confer no power to submit the question to a vote at the town elections in April of that year; that as the law was not then in force, the question could not be submitted till after it was in force, which would be on the first Tuesday of April, 1864; that as a consequence the submission of the question on the first Tuesday of April, 1863, was without power, and was void.If this were conceded to be true, the question still arises whether the law of 1871(Pub. Laws, p. 596, being section 34, p. 758,Rev. Stat. 1874,) does not cure the defect.It provides that where counties have voted for the support of paupers by townships, and counties have acted in good faith for the period of five years under the authority of such vote, the acts of such counties and townships shall be deemed legal and binding, notwithstanding any informality in the time or manner of holding such elections, or in recording or preserving the records of the same.

The language of this section is sufficiently broad to fully cover such an election as is claimed to have been held in this case.If it was informal as to the time or manner of holding the election, it is manifestly and fully within the provision.Nor do we understand that this proposition is controverted.But it is claimed the law is unconstitutional, but no section or clause of that instrument is referred to which prohibits such an act, nor are we aware of any which denies the power.It appears to be within the well recognized power of the legislative department of the government.(SeeCooley's Const.Lim. 371.)That author says that it is within the power of the legislature by retrospective statutes to cure defects in legal proceedings, where they are in the nature of irregularities only, and which are not jurisdictional.Of this class are statutes which cure iregularities in the assessment of property for taxation and the levy of taxes; irregularities in the organization or elections of corporations, and of the votes or other action by municipal corporations, etc.He gives as a test, that if the thing which...