Walton v. Develing

• Decision Date: 30 September 1871
• Citation: 61 Ill. 201,1871 WL 8233
• Parties: SAMUEL B. WALTON et al.v.J. D. DEVELING et al.
• Court: Illinois Supreme Court

61 Ill. 201

1871 WL 8233 (Ill.)

SAMUEL B. WALTON et al.

v.J. D. DEVELING et al.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Iroquois county; the Hon. CHARLES H. WOOD, Judge, presiding.

Mr. C. R. STARR, for the appellants.

Mr. WM. POTTER, for the appellees.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

Upon application to the master, a writ of injunction was issued to restrain appellants, who composed the board of election of the town, from holding an election in accordance with the statute, in reference to the subscription to the capital stock of a railroad company.

The allegations in the bill which seem to be relied upon in the argument are, that there had been a previous election upon a proposition to subscribe $50,000, and that the clerk of the town, upon the petition of ten legal voters, and tax payers, had unlawfully posted up notices that an election would be held to determine whether or not the electors of the town were in favor of subscribing $30,000 to the stock of the company.

The election was held in violation of the injunction, and appellants were fined for contempt, which consisted of the alleged disobedience of the process of the court.

There is no pretense that the special statute, by virtue of which the election was to be held, had not been fully complied with by a proper petition and due notice.

By the writ the clerk, supervisor, collector and assessor of the town, and all other persons therein, were enjoined from holding or participating in the election.

Two questions arise for consideration.

First--Had the court any jurisdiction over the subject matter, and authority to issue the writ? Second--If it had not, was the alleged disobedience a contempt of the court?

The cases in which this remedial writ has been issued, are of almost endless variety, and yet there should be some limit to the exercise of this enormous power. In Brown v. Newall, 2 Myl. & Cr. 558, Lord COTTENHAM, in delivering the opinion, said, as to this power: “I am most unwilling to lay down any rule which should limit the power and discretion of the court as to the particular cases in which a special injunction should or should not be granted; but I have always felt--and since I have been upon the bench I have seen no reason to alter my opinion--that extreme danger attends the exercise of this part of the jurisdiction of the court, and that it is a jurisdiction to be exercised with extreme caution. It is absolutely necessary that the power should exist because there are cases in which it is indispensable; but I believe that, practically, it does as much injustice as it promotes justice, and it is, therefore, to be exercised with extreme caution.”

The strong language of the learned chancellor applies with great force to the case at bar.

Section 10 of the act to incorporate the railroad company, prescribes that the clerk of the town, upon the presentation of a petition signed by ten citizens, legal voters and tax payers of the township, shall post up notices of an election, which shall be conducted in the manner provided by law for the election of town officers. Private Laws 1869, 135.

The law referred to in section 10, requires that the electors shall meet at the time and place specified in the notice, choose a moderator, and proceed with the election; and that the town clerk shall be the clerk at the meeting.

An act of the same session of the legislature provides that the proper authorities may, after rejection, again submit to the electors a proposition to subscribe to the capital stock of any corporation, at their discretion. Sess. Laws 1869, 173.

Thus it will be seen that the rejection of the subscription is no bar to a subsequent election. No fraud is charged in the bill, and it is not alleged that the act of incorporation is invalid and not obligatory upon the officers mentioned in it.

The charter of the railroad company made it the duty of the clerk, upon request, to submit the question of subscribing to the stock to the voters; but when we construe it in connection with the other act, having reference to the same subject, we find that he is released from the positive duty and must exercise a discretion.

There is no charge of the exercise of an unreasonable discretion, or of non-compliance with the law.

In such case, what must control the officer, the mandate of the court, or the plain behests of the law? The court, as well as the inferior officer, must be governed by the law. When the law imposes a positive duty upon a public functionary and a court commands him not to perform it, he must obey the law and disobey the writ of the court. If the law give him a discretion in the discharge of a public duty, the implication is that he must act without other control than his own judgment. Upon the allegations in the bill, there could be no power or jurisdiction in the court to review or restrain the discretion. If so, there would be no discretion. The officer, and not the court, must discern and determine the propriety of the election.

In Mooers v. Smedley, 6 Johns. Ch. 28, a bill was filed to enjoin the supervisors of a town from the allowance of certain bounties for wolf scalps to non-residents of the town, and alleging that the bounties were confined to residents, and that, by such action of the supervisors, the tax of the plaintiff was greatly augmented.

The law gave the supervisors authority “to examine, settle and allow all accounts, etc.”

Chancellor KENT said: “I can not find, by any statute, or precedent or practice, that it belongs to the jurisdiction of chancery, as a court of equity, to review and control the determination of the board. * * This power implied and required the exercise of sound judgment. * * This is not the case of a private trust, but the official act of a political body; and in the whole history of the English court of chancery there is no instance of the assertion of such jurisdiction as is now contended for.”

In the case of Frewin v. Lewis, 4 Myl. & Cr. 249, it was held that the chancellor had no jurisdiction to exercise any power over the proceedings of the poor law commissioners unless they were departing from the power which the law had vested in them, or...