Township of Elmwood v. Marcy

• Decision Date: 01 October 1875
• Citation: 92 U.S. 289,23 L.Ed. 710
• Parties: TOWNSHIP OF ELMWOOD v. MARCY
• Court: U.S. Supreme Court

92 U.S. 289

23 L.Ed. 710

TOWNSHIP OF ELMWOOD v. MARCY.

October Term, 1875

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The judges of the Circuit Court were divided in opinion, whether, under the facts of this case and the legislation of Illinois applicable to them, there existed power and lawful authority to issue the bonds and coupons in controversy, so as to render them valid and collectible in the hands of the plaintiff below, who is defendant here. Judgment was rendered in his favor, and the cause is brought here for review. From the certificate of division, it appears that the Dixon, Peoria, and Hannibal Railroad Company was incorported March 5, 1867; that prior to Feb. 11, 1869, the road of said company was located in the township of Elmwood; that, at the date last named, an election was called under the provisions of the charter of said company, to be held on March 16, 1869, to determine whether said township would subscribe to the stock of said company, and give its bonds for $35,000, the maximum amount permitted by law; that, five days afterwards,—to wit, on the 16th of February, 1869,—notice was given of another election, not purporting to be in pursuance of said charter, to be held at the same time and place with that aforesaid, to determine whether said township would subscribe to the stock of said company, and issue the bonds for a further sum, over and above the amount authorized by law as aforesaid; that said first-named election resulted in favor of subscribing said $35,000, and the second-named election resulted in favor of an additional subscription of $40,000; that after both said elections were notified, and seven days before they were held,—viz on the 9th of March, 1869,—the charter of said company was amended so as to authorize towns in which said road might be thereafter located to vote and subscribe $100,000 to its capital stock; also that, thirty-two days after said election,—viz., on the seventeenth day of April, 1869,—the legislature passed a validating act, and that ten days tereafter, on the 27th of that month, the supervisor and town-clerk issued the bonds and coupons contemplated by both elections. That act legalized and confirmed the subscription for $40,000 to the capital stock of the company over and above that for $35,000, which was confessedly made in accordance with the provisions of the original charter. The bonds in suit are part of those issued for the greater sum; and the question is, whether they are binding on the town.

Mr. H. B. Hopkins, Mr. J. H. Morrow, and Mr. E. G. Johnson, for the plaintiff in error.

The bonds and coupons in question are null and void. First, Because their issue was and is inhibited by the Constitution of Illinois, and the laws upon which they depend for their validity are unconstitutional and void. Second, Because they were issued in plain violation of the letter and spirit of the acts which purport to authorize their issue. Wiley et al. v. Silliman et al., 62 Ill. 170; Marshall et al. v. Silliman et al., 61 id. 218.

The act of the Legislature of Illinois of April 17, 1869, attempts to confer the power of municipal taxation upon persons who are not the corporate authorities of the district to be taxed, and is therefore unconstitutional and void. Harward et al. v. The St. Clair and Monroe Levee and Drainage Company et al., 51 Ill. 130; Same v. The State of Illinois, id. 138; The People ex rel., & c. v. Mayor, &c., of Chicago, id. 17; The People ex rel., &c. v. Soloman, Clerk of Cook County, id. 37; Hessler v. Drainage Commissioners, 53 id. 105; Marshall et al. v. Silliman et al., and Wiley et al. v. Same, supra.

It has become a prominent doctrine of this court, that the construction which prevails in the State courts at the time municipal bonds are issued, upon questions touching their validity, enters into and forms a part of them as the settled law of those contracts, although the State court may have adopted a different ruling. Gelpeck v. City of Dubuque, 1 Wall. 175, Olcott v. Supervisors, &c., 16 id. 678; Havemeyer v. Iowa County, 3 id. 294; Mitchell v. Burlington, 4 id. 270; Christy v. Pridgeon, id. 196.

Mr. Isaac G. Wilson and Mr. Sanford B. Perry for the defendant in error.

It is apparent, from the phraseology of the act of April 17, 1869, that it does not compel the township to incur an obligation and tax itself without its consent. So far from conferring a new power, or imposing a debt, it simply cures and legalizes the defective and irregular exercise of an existing power. The President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405.

It is competent for the legislature to give effect and validity to an election held for the purpose of determining as to the expediency of subscribing for stock, before the passage of a law providing therefor. St. Joseph Township v. Rogers, 16 Wall. 644; McMillan et al. v. Lee Co., 3 Iowa, 317.

Wiley et al. v. Silliman et al., 61 Ill. 218, is squarely in conflict with the decision of this court in Township of Pine Grove v. Talcott, 16 Wall. 666.

If the words, 'and is hereby declared binding on said township, and said $40,000, when subscribed according to the conditions of said vote, may be collected from said township in the same manner as if the said subscription had been made under the provisions of said charter,' create a debt, and so are obnoxious to the provisions of the Constitution, they must be disregarded. It is a familiar principle of construction, that a statute is void only so far as its provisions are repugnant to the Constitution; and that one provision may be void, and the others valid. Sedg. on Stat. and Const. Law, 2d ed., 413; Fisher v. McGin, 1 Gray, 22.

The township organization law of Illinois does not declare what officers of a town constitute its municipal officers.

The supervisor and town-clerk are, by the obvious intent of the law, the proper officers to execute all authorized town obligations, except those otherwise specially provided for. They are, pro hac vice, the municipal authorities. Marcy v. Town of Ohio, 5 Legal News, 551.

MR. JUSTICE DAVIS delivered the opinion of the court.

The questions arising upon this record were elaborately considered in Marshall et al. v. Silliman et al., 61 Ill. 218; and the doctrines there announced were recognized and enforced in Wiley et al. v. Silliman et al., 62 id. 170. The last case involved the validity of the identical bonds in question here; but both were, in all substantial particulars, alike. They were bills in equity to enjoin the collection of taxes for the payment of interest; and the court decided that the law of March 9 gave no power to issue the bonds. The opinion affirms, that, when the notice for the vote was posted, the charter of the company only authorized a subscription for $35,000; that the notice under which the vote for the $40,000 was taken was a mere call for a special town-meeting, signed only by twelve voters, which did not seek to follow the provisions of the charter, as, indeed, it could not, since the power under them was already exhausted; and that the proceeding was utterly void. That law is disposed of in these words: 'It is true that on the 9th of March, 1869, the legislature passed another act authorizing towns to subscribe $100,000; but a new notice was not given. The charter required twenty days' notice, and only seven intervened between the passage of the act and the vote.'

It was insisted, however, that the curative act of April 17, passed after the vote had been taken, gave validity to the bonds. On this ground counsel placed their chief reliance, and to it the court directed its principal attention.

The act was direct and positive, and left nothing to inference. It was intended, so far as the legislature could do it, to make the bonds binding on the township, and collectible in the same manner as if the subscription had been authorized by the charter, and voted for in accordance with its terms. The court held it to be a violation of the fifth section of the ninth article of the Constitution of 1848, which declares 'that the corporate authorities of counties, townships, school-districts, cities, towns, and villages, may be vested with power to assess and collect taxes for corporate purposes, such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same.' The decision was placed on the ground, that, this section having been intended as a limitation upon the law-making power, the legislature could not grant the right of corporate taxation to any but the corporate authorities, nor coerce a municipality to incur a debt by the issue of its bonds. In the opinion of the court, the act was an effort to do both these things, as it attempted to confer that right upon persons who were not by themselves the corporate authorities in the sense of the Constitution, and to compel the town to issue its bonds for railroad stock by declaring a void proceeding to be a valid subscription.

Counsel argued that the act might be treated as vesting an unconditional authority in the supervisors and town-clerk to issue the bonds, and cited The President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405, which recognizes that the legislature can constitutionally bestow upon the trustees of a town the power, if they think proper to exercise it, to subscribe for stock in a railroad company, without requiring the subject to be submitted to a vote of the people. The court, adhering to the doctrines of that case, but distinguishing it from the one under consideration, and referring to Lovingston v. Wilder, 53 Ill. 302, as an authority in point, said 'that the town supervisor and clerk who issued the bonds in controversy do not represent a township as the board of trustees represent an incorporated town, or the common council a city. The supervisor and town-clerk are but a part of the...