Williams v. the Town of Roberts.

• Decision Date: 31 January 1878
• Citation: 88 Ill. 11,1878 WL 9792
• Parties: CHARLES G. WILLIAMSv.THE TOWN OF ROBERTS.
• Court: Illinois Supreme Court

88 Ill. 11

1878 WL 9792 (Ill.)

CHARLES G. WILLIAMS

v.THE TOWN OF ROBERTS.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Marshall county; the Hon. JOHN BURNS, Judge, presiding.

This was an action of assumpsit, by appellant, as assignee of the Hamilton, Lacon and Eastern Railroad Company, against appellee, upon a certain bond executed and delivered by appellee to said railroad company, as follows:

+---------------+
                ¦“$1000.¦No. 17.¦
                +---------------+
                

United States of America, State of Illinois, County of Marshall, Town of Roberts:

Know all men by these presents, that the town of Roberts, in the county of Marshall and State of Illinois, is indebted to the Hamilton, Lacon and Eastern Railroad Company, or bearer, in the sum of $1000, lawful money of the United States, which the said town of Roberts promises to pay to said Hamilton, Lacon and Eastern Railroad Company, or to the bearer hereof, on the 7th day of April, in the year 1876, at the office of the treasurer of the county of Marshall, aforesaid, in the town of Lacon, Illinois, on the presentation of this bond, with interest thereon from the 7th day of April, A. D. 1871, at the rate of ten per centum per annum, payable, annually, at the office of the treasurer of the county of Marshall, aforesaid, on the 7th day of April in each year, on the presentation and surrender of the annexed coupons, as they severally become due.

This bond is one of a series, amounting, in the aggregate, to $30,000, and consisting of thirty bonds, numbered from one to thirty, inclusive, each of which is for $1000, and all of which are of even date, and are issued, in accordance with the laws of the State of Illinois, in payment of a subscription made by said town of Roberts for 300 shares of the capital stock of the Hamilton, Lacon and Eastern Railroad Company, which said subscription was made by said town by virtue of a vote of a majority of the voters of said town in favor thereof, at a special election held for such purpose in said town on the 25th day of March, A. D. 1869, in pursuance of the laws of the State of Illinois, and the several acts of the General Assembly incorporating said railroad company.

In witness whereof the supervisor of said town of Roberts has signed this bond, and the clerk of said town has attested the same, and on this 7th day of April, in the year 1871.

JOHN NORTON,

Supervisor of the Town of Roberts, Marshall Co., State of Illinois.

+------------------------+
                ¦Attest:¦JOSEPH MALEHAM, ¦
                +------------------------+
                

Clerk of the Town of Roberts, Marshall Co., State of Illinois.

Indorsement: This bond is issued by the town of Roberts, on the 7th day of April, A. D. 1871, and duly recorded by me according to law.

JOSEPH MALEHAM,

Clerk of the Town of Roberts.”

The following is a copy of the coupon attached to foregoing bond:

“Town of Roberts, county of Marshall, State of Illinois, will pay to the bearer $100, at the office of the county treasurer in the town of Lacon, on the 7th day of April, 1876, interest on bond No. 17, issued by said town in payment of subscription to the capital stock of the Hamilton, Lacon and Eastern Railroad Company.

JOHN NORTON,

Supervisor of the Town of Roberts.

JOSEPH MALEHAM,

Clerk of the Town of Roberts.

Indorsement: Filed September 21, 1871.

+----------------------------------+
                ¦(Signed)¦JAMES WESTCOTT, Clerk.  ”¦
                +----------------------------------+
                

The declaration avers the indorsement of the bond to appellant, on the day it bears date, by the Hamilton, Lacon and Eastern Railroad Company, and contains the other necessary averments to charge appellee with its payment. Appellee pleaded two pleas, as follows:

“1st. And now the defendant comes and defends the wrong and injury when, etc., and says actio non, because it says that the said election set forth and recited in said bond was held contrary to and in violation of law, in this: that the said election was called by the town clerk of said town without any application having been filed therefor, as required by an act of the General Assembly of said State, in force March 5, 1869, entitled ‘An act to authorize the incorporated towns of La Salle and Marshall and Livingston counties to subscribe to the capital stock of the Hamilton, Lacon and Eastern Railroad Company;’ but the same was called by said clerk under and by virtue and in pursuance of a certain application, in writing, filed in his office on the 18th day of February, A. D. 1869, which application was, in fact and figures, as follows, to-wit:

‘ To the Township Clerk of the Township of Roberts, County of Marshall and State of Illinois:

C. Broaddus, Hiram Myers, (justice of the peace and supervisor,) and twelve freeholders of the said township, deeming it necessary that a special township meeting be held in said township, for the purpose of allowing the legal voters of said township to vote upon the question as to whether or not said township shall subscribe $30,000 to the capital stock of the Hamilton, Lacon and Eastern Railroad Company, and issue the bonds of said township therefor, payable one-third in three years, one-third in five years, and one-third in eight years from this date, with ten per cent interest thereon per annum, payable annually, for the purpose of building a railroad from the city of Lacon, on the grade of the American railroad, through said town of Roberts, to connect with the Chicago, Alton and St. Louis railroad in said State, to be signed by the supervisor and countersigned by the clerk of said township, as follows, to-wit: when the track of said Hamilton, Lacon and Eastern railroad shall have been graded, ties laid and the iron thereon, and the said railroad completed and the cars running in said town of Roberts, together with a side track and depot, built within one-half or three-fourths of a mile of the geographical center of said town of Roberts, on the line of said railroad, then the sum of $30,000, or so much of said sum as may be necessary for the completion of the said railroad, of said bonds, shall be issued as aforesaid,--we therefore ask you to call a meeting of said township, for the purpose of voting upon the question of subscribing said stock, as aforesaid, as soon as you can conveniently do so.

+-----------------------------------+
                ¦JAMES HOYT,    ¦GEORGE W. WALKER,  ¦
                +---------------+-------------------¦
                ¦JACOB SALTER,  ¦WILLIAM B. GREEN,  ¦
                +---------------+-------------------¦
                ¦JOHN NORTON,   ¦J. R. SHOW,        ¦
                +---------------+-------------------¦
                ¦ABRAHAM DELONG,¦LIVINGSTON ROBERTS,¦
                +---------------+-------------------¦
                ¦JOSEPH MALONE, ¦J. J. MYERS,       ¦
                +---------------+-------------------¦
                ¦D. H. MALEHAM, ¦JAMES B. DAVIS.'   ¦
                +-----------------------------------+
                

And the defendant in fact says, that the said application remaining on file in the office of the town clerk on the 15th day of March, A. D. 1869, said clerk called said election in pretended pursuance of said application, and on the said day posted written notices of such election in three of the most conspicuous places in said town, which notices, so posted, were in letters, words and figures, as follows:

‘ Special Town Meeting.--Whereas, the supervisor and justice of the peace, with twelve freeholders, of the town of Roberts, having, in writing, filed in my office a statement that a special town meeting is necessary to the interest of said town, setting forth the object of the meeting, the inhabitants, legal voters of the said town of Roberts, are therefore hereby notified that a special town meeting will be held at the town hall on Thursday, the 25th day of March, 1869. The polls will be open at 9 o'clock in the forenoon, and close at 6 o'clock in the afternoon, for the purposes following, to-wit: For the purpose of allowing the legal voters of said town to vote upon the question as to whether or not said township shall subscribe $30,000 to the capital stock of the Hamilton, Lacon and Eastern Railroad Company, and issue the bonds of said township therefor, payable one-third in three years, one-third in five years, and one-third in eight years from this date, with ten per cent interest thereon per annum, payable annually, for the purpose of building a railroad from the city of Lacon, on the old grade of the American Central railroad, through said town of Roberts, to connect with the Chicago, Alton and St. Louis railroad, in said State, said bonds to be signed by the supervisor and countersigned by the clerk of said town, as follows, to-wit: when the track of said Hamilton, Lacon and Eastern railroad shall have been graded, ties laid and the iron laid thereon, and the said railroad completed and the cars running in said town of Roberts, together with a side track and depot, built within one-half or three-quarters of a mile of the geographical center of the town of Roberts, on the line of said railroad, then the sum of $30,000, or so much of said sum as may be necessary for the completion of said railroad, of said bonds, shall be issued as aforesaid, being the object contained in said statement filed in my office this 8th day of February, 1869.

Given under my hand, at Roberts, this 15th day of March, 1869.

H. STATLER, Town Clerk.'

And said election, mentioned in plaintiff's declaration and the bond described therein, was held in pursuance of said application and notice, and by virtue of no other authority, application or notice whatever; and the notice thereof given was not for the length of time required by said...