Prettyman v. Supervisors of Tazewell County

Walker, J. The first question we propose to consider, is whether, the legislature has constitutional power to authorize counties and cities to subscribe for shares of the capital stock of railroad companies. To determine the question satisfactorily, it will be proper to ascertain the true rule of construction to be applied in testing the constitutionality of an act of the State legislature. While the federal government is one of delegated powers, supreme to the extent of the power granted, that of a State is rather to be regarded as a limitation of the legislative department, and it is competent for the legislature to exercise all powers not forbidden by the constitution of the State, nor delegated to the general government, nor prohibited to the State by the constitution of the United States. Sawyer v. City of Alton, 3 Scam. R. 130 ; Mason v. Wait et al., 4 Scam. R. 134. This court again say, “ that in determining a question involving the inquiry whether an exercise of power by the legislative department of the State is constitutional, is readily conceded to be not only a matter of delicacy, but of grave mands the most deliberate and mature considers not, moreover, be decided but in cases of cl when the act done is in plain conflict with Lane v. Dorman, 3 Scam. R. 240. These, it is conceived, are the true rules by validity of the exercise of the legislative p and, applying these tests, we will proceed to the acts in question are prohibited by the cons only portion of our State constitution referred to as violated by the act of the 6th November, 1849, is the 38th Sec. of the 3rd Art. of the constitution, which provides that “ the credit of the State shall not be given to, or in aid of, any individual, association, or corporation.” Erom the terms used in this provision, or from plain and necessary implication, does it appear that the framers of that instrument intended to prevent the legislature from authorizing counties and cities to subscribe for shares of the capital stock of railroad incorporations? The language,.in terms, does not. The credit of the State alone is mentioned; counties and cities are not named. It is a familiar rule of construction, that the express mention of one thing, implies the intention to exclude others. Co. Litt. 210 a; Broom’s Max. 505. It is no more than reasonable to suppose, that if the framers of the constitution had intended to embrace counties and cities in this prohibition, they would have named them, and especially so when they have been so specific in regard to the great number of prohibitions enumerated in that instrument. I have been unable to find a single decision holding a legislative enactment void because it authorized the performance of an act supposed to be embraced within the reason of some other prohibition, and it is believed that none such exists. Such a reason would be highly proper to urge in favor of a change of the fundamental law, or upon the legislature, to prevent them from exercising the power. But the constitution itself furnishes the only test in determining the validity of a statute. Any other would be dangerous in the extreme, as the courts would then be virtually the framers of the constitution, and not the people. It is the duty of the courts to determine what the provisions of the constitution are, and not what they should have been. If a law is unwise, the legislature is responsible, and it is for their constituents to apply the corrective, and not for the courts, for that reason, to hold it void. We can only look to their power to act, under the constitution, and not to the effects of their exercise of constitutional authority, in determining the validity of their acts. It was urged, that under this prohibition the State has no power to subscribe for stock in such an incorporation, or to levy a tax to aid its construction, and that to authorize counties or cities to do so, was indirectly doing the same thing. It ■ certainly has the power to authorize individuals to subscribe for such stock, although it is itself prohibited from doing so. There • are many acts it may not do, and yet may authorize others to do. It has no power to try a suit, yet it may authorize a a court to do so; and may not exercise many judicial, ministe•rial and executive acts, which it may authorize others to perform. The act in no way lends the credit or pledges the faith «of the State to these incorporations. It is not responsible for the redemption of the bonds, or for the payment of the interest -on them. It only authorizes counties and cities to lend their •credit to, or in aid of, such incorporations. And we think that .-the legislature had constitutional warrant for so doing, and the •■act is not void. It was urged, that this act authorizing counties to subscribe .for stock in railroad companies, does not confer power on the board of supervisors to call an election, to subscribe for stock, or to issue the county bonds. The 5th clause of the 4th section of the 16th article of the act authorizing counties to adopt township organization, (Sess. Laws 1851, p. 51,) has this provision : “ That the board of supervisors of each county in this State shall have power, at their annual meetings, or at any other meeting, to perform all other duties not inconsistent with this act, which may be required of, or enjoined upon them by any law of this State, to county courts.” The calling an election when desired by the people, the subscription for stock, and the issuing of county bonds, were duties enjoined on county courts by the laws of this State, and such duty was not inconsistent with that act. Under this provision, the board of supervisors clearly had the right. It was urged, that under the act of November 6,1849, no county has the right to subscribe more than one hundred thous and dollars for railroad stock, and Tazewell county having already subscribed that sum, to other roads, that this subscription is void. The act amendatory to the charter of the “Tónica and Pittsburg Railroad Company” (Private Laws 1857, sec. 1, p. 1031) provides: “ That in all cases where subscriptions have been or shall be made to said company, by any county of this State, in pursuance of a vote of the county, (all which are hereby declared legal and valid,) it shall be the duty of the County Court of each county respectively, to levy a sufficient tax,” etc. If there had been no prior legislation authorizing counties to subscribe, this enactment would have authorized the county to subscribe for stock in this road, and the only condition imposed would have been that it should be in pursuance of a vote of the county, and without limitation as to amount. If, then, it would have conferred the power to subscribe any amount the county might determine, had there been no former legislation on the subject, it would seem to follow that any limitation as to amount, by former enactment, could not control, as no reference is made to such prior law. The language is broad and comprehensive. It embraces all subscriptions which have been or shall be made by any county, and they are declared legal and valid on the sole condition that it is in pursuance of a vote of the county; and it is not declared that it shall be in pursuance of the former legislation. We are, therefore, of the opinion this provision authorized this subscription, whether the act of 6th November, 1849, did so or not. It was urged that unfair practices were resorted to by a portion of the citizens of the county, who were favorable to subscription, for the purpose of carrying the vote at the election in its favor. The bill alleges that “ they caused to vote hundreds of inhabitants, and mere transient men, some of whom had been transported thither for the express purpose of voting at said election, and for subscription, and who were not legal voters of said county, and forbid and prohibited, by threats and menaces, other legal voters of said county from voting at said election, who desired to vote against said subscription; and your orator shows there was not a majority of the legal voters of said county who voted in favor of said subscription.” This allegation is not specific. It nowhere in terms charges that any portion of these illegal votes were cast in favor of this subscription. It only charges that the friends of subscription caused them to vote at the election, and that a portion of them were brought there to vote in its favor. There is no averment that, if every illegal vote cast had been rejected, the result would have been different. It is true, that it is alleged that a majority of the legal voters of the county did not vote in favor of this subscription.; but this allegation does not aid the other. This may be true, and still the subscription valid. For anything appearing, there may have been a decided majority of the legal votes cast that were favorable to subscription; and still, those voting in its favor might have been a majority of all the legal voters of the county. If tested by the act of 6th of November, 1849, it will be found that the bill does not negative the fact that there was a majority as required by its provisions. ■ That act provides, that to ascertain whether the proposed subscription has a majority of .¿he legal voters of the county, the vote of the last general elec¿i£p shall be taken as the basis. This bill nowhere alleges that thjB subscription in this case did not have a number of legal voters of the county voting for it, more than equaling half of thalnumber of votes cast in the county at the last preceding general election. The number of votes given for or against this subscription, whether legal or illegal, is not given; nor is the number of votes cast at the preceding election. In this, as in all other elections, the certificate of the canvassing officer is binding until it is impeached, and that officer has certified that there was a majority of the legal voters of the county who voted for subscription. This certificate, undoubtedly, might be impeached for fraud, upon establishing a proper case, in apt time. But justice and reason would alike prohibit a party, after acquiescing until •the road should incur liabilities, acquire credit, or procure individual subscriptions on the faith that these bonds would issue, from impeaching the election and enjoining them from issuing. •If fraud existed, the party must have known it, and should have proceeded at once to enjoin proceedings; but having delayed for near four months, the presumption is, that rights have been ■acquired and liabilities incurred, on the faith of these bonds, that would make it inequitable to restrain their issue, although ,fraud in the election may have existed. If he has delayed until others acting in good faith have acquired rights, he has no right to complain if they are preferred. Another objection urged is, that these bonds bear date and draw interest before it is proposed that they shall be delivered to the railroad company. The act of November, 1849, requires them to issue at the same times, and in the same proportions, that individual subscribers shall be required to pay their subcriptions. The act of the 1st of March, 1854, authorizes the County Court to issue all or any portion of such bonds, whenever they shall deem it for the interest of the county, without reference to other subscriptions. When the county propose to issue the bonds under one or the other of these acts, they should bear date and draw interest from the time they should issue. And the neglect or failure of the officers of the county to perform their duty in issuing them, should not prevent the bonds from drawing interest from that time. The only remaining question is, whether the county has the power to make the principal of these bonds payable at any other place than at its treasury. This is determined by the 3rd section of the act of 16th February, 1857, (Private Laws, 1,032,) which provides, “ That the County Court of each county, which may, by a vote of said county, have subscribed, or may hereafter subscribe, to the capital stock of said company, is hereby authorized to make the interest on the bonds of subscription aforesaid, payable at such place or places as the said County Courts, respectively, may order and determine.” This enactment only authorizes the courts to make the interest payable where they may order, but gives no such power as regards the principal. When the legislature expressly mention the interest alone, the inference is strong that they intended to exclude the pi’incipal from that provision. If the interest were payable at the county treasury, bond holders would be subjected to the inconvenience and expense of semi-annually applying in the county for their interest. This would necessarily depreciate the market value of these bonds, while, merely having to present the bonds there at their maturity, would not have that effect. These were probably the reasons that induced the legislature to make the distinction. We are, therefore, of the opinion that the Circuit Court erred in dissolving the injunction and dismissing the bill. The decree of the Circuit Court is reversed, and the cause remanded, and the court is directed to enter a decree perpetually enjoining the defendants from issuing the bonds described in complainant’s bill. Decree reversed.