Town of Kankakee v. Kankakee & I.R. Co.

• Decision Date: 14 November 1885
• Citation: 3 N.E. 741,115 Ill. 88
• Court: Illinois Supreme Court
• Parties: TOWN OF KANKAKEE v. KANKAKEE & I. R. CO. and others.

115 Ill. 88

3 N.E. 741

TOWN OF KANKAKEE

v.KANKAKEE & I. R. CO. and others.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from appellate court, Second district.

The bill alleges that in 1871 the town took $30,000 in the capital stock of the Kankakee & Indiana Railroad Company, which subsequently built a road from Kankakee to St. Anne, in said county; that the Cincinnati, Lafayette & Chicago Railroad Company had built a road from Lafayette to St. Anne, and in 1872 the two became consolidated, adopting the name of the last company as the name of their consolidated company; that this consolidated company operated this line from Kankakee to St. Anne and Lafayette, from 1872, for several years, when it turned it over to the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company, its successor, who has since operated it. The bill claims a large amount of tolls, freight, incomes, and profits that have arisen from the operation of the road. The bill claims that the consolidation of the two roads was illegal, and bases the illegality upon the charge that the town of Kankakee did not consent to the consolidation, and had no notice of the same. The remaining part of the bill alleges that the railway companies have, by a system of fraudulent issue of stock, attempted to defeat the stock of the appellant from receiving its share of the earnings of the road. The bill prays that the consolidation might be set aside and the property restored to the Kankakee & Indiana Railroad Company, and that an account of the earnings, income, and profits of the line, from Kankakee to St. Anne, may be taken, and the town's share thereof paid to it, and the stock of all stockholders but that of the towns of Kankakee and Aroma to be cancelled, on account of its being claimed to be fictitious. September 25, the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company moved to dismiss the bill for want of authority on part of complainant's solicitor to appear for complainant. Bill dismissed at complainant's cost. Complainant excepts, and prays appeal. The affidavit on which the motion is predicated is preserved in a bill of exceptions, and is made by one M. E. Ingalls, of Ohio, who says he is president of the Cincinnati, Indianapolis, St. Louis & Chicago Railroad Company; that Stephen R. Moore has brought the above suit, and that he has no authority from the complainant to bring the suit. The complainant filed the affidavit of Solon Knight, the supervisor of the town of Kankakee; that as such supervisor, and acting as he believes for the best interests of the town, he employed Mr. Moore, for the town, to file the bill, and reported to the board of town auditors all his acts, and the acts of Mr. Stephen R. Moore, in the premises, and these things were all approved by the board of town auditors, and our said attorney was directed by the board of town auditors to take further proceedings in said suit to protect the complainant.

On this record, the court ordered the dismissal of the bill. The complainant took an appeal to the appellate court, where the order was affirmed; and the complainant now brings the case to this court by appeal.Stephen R. Moore, for appellant.

Thomas P. Bonfield, for appellees.

SCHOLFIELD, J.

The suit is one of importance, and its prosecution and defense, if conducted to a final hearing, must be attended with heavy expenses in attorney's fees and in court costs. It is therefore more than a matter of form to the tax-payers of the town that it shall only be commenced and prosecuted, at their expense, by lawful authority. If the suit was commenced without authority, the action of the court in dismissing it was proper. Frye v. Calhoun Co., 14 Ill. 132. Under our system of township organization, there is no officer or board representing the corporate authority of the town. The electors only represent it, and they, in doing so, must and do necessarily act through town meetings or town elections. Williams v. Town of Roberts, 88 Ill. 22. There can,...