Toledo, Peoria & Warsaw Railway Co. v. President of Chenoa

Mr. Chief Justice Walker delivered^ the opinion of the Court: It is insisted that there is no evidence in the record that the town of Chenoa was ever incorporated; and hence the president and trustees had no power to pass the ordinance, for the violation of which this suit was brought. By an act of the general assembly, adopted on the 16th of February, 1865 (Private Laws, vol. 2, p. 430), it is declared that all of the acts and proceedings, done for the purpose of incorporating the town of Chenoa, be legal and valid; and all ordinances passed by the president and trustees of the town, not inconsistent with the Constitution of this State, or that of the United States, are also declared to be legal and binding. The act also authorizes the president and trustees to fix the boundaries of the town, so as to include any tract of land laid out into town lots. This act fully recognizes the previous organization of the incorporation, and cures all defects that may have occurred in its organization. By the act of February 10, 1849, section 4 (Scales’ Comp. 200), it is declared that the corporate authorities of all towns and cities, incorporated under chapter 25, of the Revised Statutes of 1845, or under any special act, shall have power to pass all ordinances and by-laws, and possess all the powers authorized by the laws and amendatory acts incorporating the cities of Quincy or Springfield. This, then, conferred the power upon the corporate authorities to adopt any ordinance which was authorized by either of those charters. The general assembly, at its special session in 1840 (Sess. Laws, p. 9), conferred on the city of Springfield, by section nine of article four, the power to open, widen, extend, establish, grade or otherwise improve and keep in repair, streets, avenues, lanes and alleys. The second section of article eight, confers the power, for the purpose of keeping the streets, avenues, lanes and alleys in repair, to compel persons therein enumerated to labor on the same. Section thirty-six of article five, confers power to pass all ordinances necessary for carrying into effect the powers granted by the charter. It would seein that these provisions confer ample power upon the corporate authorities of this town, to punish by fine any person who may obstruct a public street. The offense is charged to have been committed on the 23d day of January, 1866, and the suit was brought to recover the penalty on the seventh day of the following February. The ordinance declaring it to be an offense for a railroad company to permit their trains or cars to stand upon, and obstruct, any street in the town longer than fifteen minutes, was adopted on the 20th of October, 1865, as appears from the transcript filed in this case. But it prescribes no penalty for a violation of its provisions ; it, however, refers to article fourteen of the town ordinances, for the penalty. When, however, we examine article fourteen of the town ordinances, as copied into the transcript of the record, we find it bears date the 11th day of April, 1866, nearly three months after the offense is charged to have been committed. And we find that it is recited in the caption which precedes the ordinance, that it was adopted by the board on the 11th day of April, 1866. And the town clerk certifies at the end of the ordinance, that he posted three copies on that day. It is suggested by counsel, that this is a mistake of the clerk in copying the ordinance into the record. It is rather remarkable, that the clerk should have made the same mistake in both places. If the ordinance was adopted in October, 1865, of which we have no evidence in this record, it may be, that the corporation clerk made the mistake in furnishing the copy to he incorporated into the hill of exceptions. If the clerk of the Circuit Court made the mistake, appellee should have suggested a diminution of the record, and obtained a writ of certiorari to correct it, before joining in error. We are hound to try the ease on the record as it is before us, and as it appears when the joinder in error is filed. There was then no evidence before the court so far as this record discloses, that there was any penalty, or if so, what it was, when this obstruction took place. It was held, in the case of Hamilton v. The Town of Carthage, 24 Ill. 22, that a ■ town incorporated under the general law, with the powers conferred by the charter of the city of Quincy or Springfield, may impose a fine for a breach of their ordinances, exceeding five dollars. That the power to impose penalties and fines, was not limited in amount by those charters. It was, however, held, that the tenth section of the tenth article of our Constitution, prevented justices of the peace from trying eases involving fines to a greater amount than $100. The judgment of the court below must be reversed and the cause remanded. Judgment reversed.