People ex rel. Peoria & Rock Island R. R. v. Cline

Mr. Justice Walker delivered the opinion of the Court: It appears that relator was created a corporation by an act of the general assembly, approved March 7th, 1867; that the company has constructed the railroad from Peoria to Rock Island; that it passes through the town of Akron, in Peoria county; that, under the power conferred by the charter, the-question whether the town should subscribe $30,000 to the capital stock of the company was submitted to a vote of the citizens thereof. After canvassing the vote, it was found that 124 votes were cast in favor of subscription, and 122 against subscribing. There were some conditions annexed in the petition for the call, and in the notice given of the election, but it is Conceded that they have been complied with by the company. The town clerk, on the 10th day of April, three days after the election, filed a certificate of the result of the same, in the office of the county clerk. After the result of the vote was declared, Wm. H. Wilson, the supervisor, prepared and executed bonds of the township to the amount of $3,000, in conformity with the terms on which they were voted, but the toAvn clerk having refused to join in issuing them, he Avas compelled to attest them by mandamus, when they were delivered to the company. On being demanded of respondent, who has since been elected supervisor, he refused to issue the remaining $27,000 of bonds, and the company applied to the circuit court of Peoria county for a writ of mandamus to compel the supervisor to issue the same. Subsequently the venue Avas changed to Fulton county. A return was made to the alternative writ, in Avhieh it is set up as a defense that the provision of the charter had not been observed, which only authorized the town clerk to call the election on the petition of ten legal voters of the town. It admits that a petition was filed, signed by ten residents of the toAvn, but avers that a portion of them were not legal voters, being aliens and not naturalized, and as such, not entitled to vote under the constitution or laws of this State; that a majority of the legal votes cast at the election was not in favor of subscription, but, on the contrary, a majority Avas cast against subscription; that of those who Avere registered as voting in favor of subscription, there Avere three aliens, not naturalized, or in any manner legally entitled to vote at that or any other election held under the laAvs of this State ; that these three votes Avere counted for subscription and entered into the canvass, and had they been rejected, as they should have been, the result would have shown a majority of one against subscription. The return also contains this averment: “And the respondent says that, at the time of making of said subscription to said capital stock as aforesaid, the said relator was notified and informed of the illegality of the petition to the clerk, and of the illegal voting at said election as aforesaid, and of the fact that the said township officers had not determined the length of time for which said bonds should run, and of the want of power in the said supervisor to make said subscription and issue said bonds. ‘ Nevertheless, the said supervisor of said township made said subscription as aforesaid, and said relator received the same, well knowing the lack of power and authority and the fraud aforesaid in said proceedings hereinbefore mentioned.” Relator interposed a demurrer to the return, which the circuit court overruled by a pro forma order and dismissed the petition, and relator brings the record to this court and assigns various errors. On the argument several interesting questions are presented and discussed, but we propose only to consider that of the fraud in the petition for the call of the election and the fraudulent votes cast, by which it was declared that the subscription had carried. It is positively averred by the9return, and admitted by the demurrer, that there was not ten legal voters of the town that petitioned for the call of the election, and that there were but 121 legal votes cast in favor of subscription, and that there were 122 against subscription, and that there were three fraudulent votes cast in favor of the proposition, which were counted. It is also averred that these facts were known to the company at the time the subscription was made, and this is admitted by the demurrer. The statute requires that there shall be the names of ten legal voters of the town signed to the petition for the call of an election, whilst in this case there were ten names thus signed, but it is averred and admitted that two of the persons were not legal voters. This, then, was not in accordance with the statute, but was in violation of its requirements. And the same is true of the three illegal votes cast in favor of subscription. The charter only authorizes such a subscription when a majority of the legal votes cast at the election shall be in favor of the same. Hence, the law was not complied with as to the requirement of the number of votes in favor of the measure. There was nota legal majority of the votes cast for subscription, and it should not have been made. It is, however, urged that, notwithstanding there may have been a failure to comply with the statute in calling and holding the election, still the township is estopped by the canvass of the vote, the return to the county clerk, and the subscription made by the supervisor. Although this might be true had the bonds been issued, and in the hands of an innocent holder, or had the subscription been made without any notice of the fraud, and the company had incurred liability on the faith that the bonds would be issued, but here the company had notice of the fraud, and can not, therefore, say they are defrauded. Knowing the call and the election to have been illegal, the company can not claim that they received the subscription in good faith, or that they believed they could enforce it against the township. Having knowledge of the illegality of the election, they made themselves a party to the illegal transaction by receiving the subscription, and thereby were rendered incapable of compelling the issue of the bonds. These views were expressed in the case of The People ex rel. v. The Board of Supervisors of Logan County, ante, p. 374. That case governs this, and the judgment of the court below must be affirmed. Judgment affirmed'.