Welch v. Augustus S. Post.
| Decision Date | 21 June 1881 |
| Citation | 1881 WL 10568,99 Ill. 471 |
| Parties | WILLIAM W. WELCH et al.v.AUGUSTUS S. POST. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of White county; the Hon. C. S. CONGER, Judge, presiding. Mr. JAMES MCCARTNEY, for the plaintiffs in error.
Messrs. HANNA & ADAMS, for the defendant in error.
This bill was brought by citizens, property owners and tax-payers in the village of Enfield, to restrain the collection of taxes levied on the property of complainants for the purpose of paying any portion of the principal or interest on bonds issued by the town of Enfield to the Springfield and Illinois Southeastern Railway Company, dated January 1, 1871, and to have such bonds declared null and void.
It is set forth in the bill, as the fact is, that under the act of March, 1869, the village of Enfield was incorporated under the name of the town of Enfield, and that while so incorporated all the acts charged were done. In 1867, by an act of the legislature, the Illinois Southeastern Railway Company was incorporated. By that act any incorporated town or city might make donations to the railway company, not exceeding $10,000. An act amendatory of the act of 1867, passed February 28, 1869, authorized any village, city, county or township to make donations to the railway company, and it was therein provided, that if the majority of the legal voters of any such municipality, as evidenced by the votes cast at an election held for that purpose, were in favor of such donation, the corporate authorities of such village, city, county or township should issue bonds, with interest coupons attached, for the payment thereof. Under the power supposed to have been conferred by the act of 1867, incorporating the Illinois Southeastern Railway Company, and the amendatory act of 1869, the town of Enfield, at an election held on the 11th day of June, 1870, after due notice had been given, voted a donation of $7000 to the Springfield and Illinois Southeastern Railway Company, and afterwards issued and delivered to the president of the company, bonds for the payment of the same, dated January 1, 1871, with coupons attached for the semi-annual interest, at the rate of ten per cent per annum.
As a ground of relief, it is alleged in the bill there was no authority of law for the issuing of any bonds by any incorporated town to the railway company, whatever; that section 11 of the charter of the company, passed in 1867, provided for donations by incorporated cities and towns, but made no provision for the issuing of bonds, and that the act of 1869, amendatory thereof, only made provision for the issuing of bonds by villages, cities, counties and townships, thereby excluding towns from the right to issue bonds, leaving such towns only the right, under the law of 1867, to make donations to be paid by a levy of a tax, and not otherwise. The bill also contains an allegation, which is not denied, that the town of Enfield was incorporated and acted under the law of 1869, incorporating it as a town, until August, 1875. The relief asked by the bill on the final hearing was, that the bonds issued by the town of Enfield to the Springfield and Illinois Southeastern Railway Company, dated January 1, 1871, might be declared null and void, and of no effect, in whosesoever hands the same may be, and that the village and county collectors, and their successors in office, be forever enjoined from collecting or attempting to collect any tax levied for the payment of the principal of the bonds or the coupons thereto attached, or detached.
Originally, only the village and county collectors of taxes and the unknown holders of the bonds were made defendants. Service of process was had on the resident defendants, and publication was made as to the unknown bondholders. No one appearing to answer the bill, it was taken for confessed as to all of defendants at the April term, 1877, and a decree rendered declaring the bonds null and void, and making the injunction previously issued perpetual. Afterwards, at the October term, 1879, of the court, Augustus T. Post, a citizen and resident of the State of New York, presented to the court a petition under the statute, stating he was the owner of the bonds in litigation; that he was never served with process in the cause, and had no knowledge of the proceedings therein until after default was entered against the defendants. The prayer of his petition was granted, and the cause re-instated for further hearing. The allegations of the bill as to the incorporation of the town of Enfield and the issuing of bonds, as stated, are all admitted in the answer of respondents, and he alleges he is the owner of one of the bonds issued to the railway company, upon which all interest was paid for the years 1872 to 1875, both years inclusive.
A replication was filed to the answer of respondent, and the cause submitted for decision upon a stipulation as to the facts, substantially as follows: It was admitted the election held to make the donation to the railway company was regularly held, after due notice had been given to the legal voters of the town, that the railroad was constructed, and bonds and coupons were issued and delivered, and interest paid, until this bill was filed; that when the vote was taken for a donation, Enfield was an incorporated town, incorporated and acting under a special act of the legislature, and was such when the bonds were issued; that the donation was voted and the bonds issued to the Springfield and Illinois Southeastern Railway Company, incorporated under the laws of 1867 and 1869, and consolidated December 3, 1869, and that said bonds were delivered about June 1, 1871; that no vote was taken to issue such bonds other than the vote for donation, held on June 11, 1870. The court dissolved the injunction previously issued, and dismissed the bill. Complainants bring the case to this court.
The question is directly made, the amendatory act of 1869 violates the constitution of 1848, article 3, section 23, which provides: “No private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title.” On the authority of Middleport v. AETNA Life Ins. Co. 82 Ill. 562, we are inclined to hold...
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