Schaeffer v. Bonham

Mr. Chief Justice Walker delivered the opinion of the Court: This was a bill filed to enjoin the Auditor from levying a tax, and the county clerk from extending it on the collector’s books, on the property in a township in Wayne county, to pay the interest on certain bonds issued in the name of the township to aid in the construction of a railroad. The bill alleges that the law authorizing the election, and the amendatory law authorizing the bonds to be issued, are unconstitutional and void; and that the election was not held in conformity to the law conferring the power to hold it, and no power was thereby conferred to issue the bonds. The court below granted the relief, holding the bonds were void, and that the collection of the tax be perpetually enjoined. The parties stipulated as to the facts on which the questions arise, which agreement is as follows: “That on the first Tuesday of April, 3867, an election was held in said Wayne county, under and in accordance with the provisions of the act of the legislature recited in complainants’ bill, entitled ‘An act to change the time of electing certain officers in a county therein named,’ passed February 28, 1867. “ That at said election there were elected, in the district denominated the second supervisors’ district, composed of the townships of Big Mound, Lamard, Jasper, and Barnhill, two supervisors, viz: J. B. Borah and Miles H. Harris. “ That at the time of said election, said Borah resided in said town of Jasper, and said Harris in Barnhill, and that neither of them ever had, or has since, resided in said town of Lamard. "That all proceedings in said town of Lamard in relation to calling or holding an election, as specified in complainants’ bill, or making subscriptions or donations, or in issuing bonds to said railroad company, were done and performed by said Borah and Harris, claiming to act as such district supervisors, and not by any officer elected by, or residing in, said town of Lamard, except the town clerk. " That bonds for $10,000, purporting to be the bonds of said town of Lamard, were issued as set forth in complainants’ bill; but said bonds were signed by said Borah and Harris, or one of them, and the town clerk of Lamard township, and by no other or pretended officer. “ That said bonds are now in the hands of innocent holders without any further knowledge of irregularities or error therein than is shown by said acts of the legislature, and the records of said town and county.” Upon this statement of facts and the allegations' of the pleadings the parties hereto submit to the court for its decision the following questions: “Was the said act of February 28, 1867, void by reason of its being in violation of sec. 6, art. 7, and sec. 23, art. 3, of the constitution of 1848? “If such act should be held to be unconstitutional, would the acts of said Borah and Harris be valid as supervisors defacto? “ Could the legislature authorize any other person or persons than the town supervisor and clerk to execute the bonds? “Had the legislature any authority to authorize the issuing of bonds without a legal vote of the people of the township? “ Was the act of 1869, giving authority to towns to issue bonds, constitutional, being an amendatory act?” Wayne county was, previous to the 28th day of February, 1867, organized and acting under the general township organization law of the State, and was laid off into fifteen townships, each having a supervisor, constituting the board of supervisors of the county. On the 28th day of February, 1867, Sess. acts, p. 102, an act of the General Assembly was approved, by which the government of the county was changed. The act provided among other things that the county board should consist of five supervisors, and the county was divided into four districts. The first embraced three townships which are named, and was entitled to elect one supervisor. The second was composed of four, and entitled to two supervisors. The third, of four, and entitled to one supervisor; and the balance of the county composed the fourth, with one supervisor. The supervisors were to be elected at the time fixed by the general law, but to hold their office for four years. The act also imposed on justices of the peace the duties required of supervisors under the general law, but they were to be selected by the town clerk, town assessor and collector each year. The act related alone to Wayne county, but it was declared to be a public law. At the same session, and on the 26th day of February, an act was adopted chartering the Illinois Southeastern ¡Railroad Company, which afterwards organized as a corporate body. The 9th section of the charter authorized any township acting under township organization, through or near which the road should run, to donate to the company not exceeding $30,000. But it was provided that it should not be done until voted by the legal voters of the town, at an election to be held for the purpose. The 10th section provides for the manner of calling the election to vote for and against donation, giving notice, etc., and if the election resulted in favor of donation, the town clerk was required to certify the fact to the county clerk, and he was required to levy and extend a tax on the property in the township sufficient to raise the sum donated, and when collected to pay it over to the treasurer of the company. And it is provided that “ the election therein provided for shall be held, canvassed and returned as other regular town elections.” The town clerk of the town of Laniard, which was in district number two, called an election to determine whether the township would donate $10,000 to the road. The election resulted in favor of donation. This election was held on the 10th day of November, 1868, but no steps were taken under it until a subsequent period. The bonds were issued for the amount previously voted to be donated on the first day of April, 1870. The bonds were subsequently registered with the Auditor of Public Accounts, who had for a number of years levied a tax to meet the interest on the bonds, which had been extended on the taxable property of the township, and collected and applied to the payment of the interest on these bonds. But when the Auditor levied a tax for the same purpose in 1879, complainants, as citizens and tax-payers of the town, filed this bill to prevent the county clerk from extending this tax against the taxable property of the township, and prevent its collection. The whole question turns upon whether those who issued the bonds had power. The bonds were signed by the two persons acting as supervisors of the second district, but neither of them resided in Laniard township. The bonds were countersigned by the clerk of that township, and were delivered to the railroad company, and, as is agreed, they have passed to innocent holders. Although several questions are presented we deem it unimportant to discuss them all. If it were conceded that the law placing Wayne county under a special township organization was constitutional, and if it should be conceded that the election for a donation for $10,000 to be given to the railway company was regular, still the question remains whether the General Assembly could treat that election as authority or consent by the voters to issue bonds running from five to twenty years at ten per cent, and appoint or authorize persons to issue and deliver the bonds. Or, if the election was left out of view, whether the legislature had the constitutional power to authorize these two supervisors and the town clerk to create a binding debt on the township, by issuing and delivering these bonds. The solution of these questions, as we regard the case, must control its decision. We shall, therefore, discuss no others. It will be observed that the charter authorizing townships to vote donations did not contemplate, and consequently did not provide for issuing township bonds. It only intended the donation to be paid by the levy of a tax, and the payment of the money, when thus collected, to the railroad company. It was not intended that an interest bearing debt should be imposed on the town. But on the 24th of February, 1869, the charter was amended, and the 5th section of the act authorizes and empowers townships in Wayne and Clay counties that had voted donations to the road, without submitting the question to a vote, to issue bonds with interest coupons for ten per cent interest per annum, payable in five years, or at any time not exceeding twenty years, at the option of the townships,— the bonds to be signed by the supervisors thereof, or by the supervisor or supervisors of the district wherein such township is located, and to be countersigned by the township clerk. But it is said the General Assembly had power to authorize any person they might name to issue bonds legally voted, and the law points to the persons claiming to be supervisors as certainly as if they had been named in the act, and therefore their acts in issuing the bonds are valid, as it was not an official act of a supervisor. If this should be conceded, still the question recurs whether the General Assembly possessed the power to authorize bonds to issue and to create a debt running from five to twenty years, without a vote of the electors of the township, or by some valid and binding assent of the town. The electors did not vote to create a debt, but to raise, by taxation on their property, a sum of money to be given to the railroad as a donation. We can not know—had the question been presented to create such a debt, bearing such a rate of interest, running for such a period of time—that the proposition Avould have been favored by a single voter. Issuing bonds in the manner prescribed by this section, is a vastly different thing, both in form and substance, from the levy of a tax and paying the whole amount at one levy. The payment of the bonds, with interest, would, on the shortest time named, render the sum fifty per cent greater, and at the longest period two hundred per cent greater, than in the manner the donation was voted by the people. This amendnient of the charter makes a radical change in the proposition —one so great as to be wholly different. The people did not Aote to incur a debt, but to raise by taxes and to donate $10,000 to the company. The amendment authorizes and empowers one or two men, Avithout the consent of the voters or tax-payers, to create a debt that can not be paid, including interest, with less than $15,000, and it may be $30,000, owing to the length of time the bonds shall run. This creates a debt and. imposes burthens on the tax-payers to which they never consented. The case of Middleport v. Ætna Life Insurance Co. 82 Ill. 562, is conclusive of this question. The material facts in that case and this are substantially the same, and we are unable to make any distinction between the íavo cases, and that must govern. In the case of Gaddis v. Richland County, 92 Ill. 119, it Avas held, as well as in other cases there referred to, that the General Assembly has, since the adoption of section 5, article 9 of our constitution of 1848, no power to impose debts on municipal corporations; and to sustain these bonds, would be to impose a debt on this tOAVnship without the consent of its voters or its corporate authorities. The persons claiming to act as supervisors were not even residents or voters in that township, but resided in other townships. The General Assembly could as well have authorized a citizen of another county to create the debt. We are, therefore, on these authorities, as well as on reason, of opinion these bonds were issued without legal authority, and were and are void. Nor can it be held that the tax-payers, or the township as a corporation, are estopped to allege such want of authority by payment of taxes to meet interest accruing on these bonds since they were issued. The act of issuing them was unauthorized and void. There was an entire want of power to issue them, and, therefore, payment of taxes can not amount to an estoppel of a void act. Had they been issued by authority, and the power defectively executed, then such acts would operate as an estoppel, but not when there is an entire want of power. Had the township voted to incur a debt, and the bonds had been issued by a person named by the General Assembly, different from the corporate authorities, then payment of interest and acquiescence for such a length of time might have operated as an estoppel. In such a case, the vote to create the debt, if authorized by law and had in pursuance of the law, would have been the essential act to create the debt, and the mere signing and delivering the evidence of the debt would have been valid if done by a person specified by the General Assembly, whether named before or after the vote was had. But such is not the case here. No debt was voted, and the legislature was powerless to authorize any but the corporate authorities to create a debt; and in the case of Marshall v. Silliman, 61 Ill. 218, it was held, that, the supervisor and town clerk were not, in the meaning of the constitution, the corporate authorities of a township, and they could not, as corporate authorities, by statute, create a corporate debt without a legal vote therefor. The question was there presented, whether these officers were the corporate authority of the township. In that case there was an effort by the legislature to cure a void election, and to empower the supervisor and town clerk to make the subscription, and it was contended, on the strength of the decision of the case of the Town of Keithsburg v. Frick, 34 Ill. 420, that the General Assembly had the power to authorize these officers of the township as its corporate authority to make the subscription, without a vote of the people. It was said: “The supervisor and town clerk who issued these bonds do not represent a township as a board of trustees represent an incorporated town, or the common council a city. The supervisor and town clerk are but a part of the corporate authorities. They have no power of taxation, nor power, of themselves, to bind the town in any way. * * * Though elected by the people, they were not elected for the purpose of creating a debt or imposing a tax, and the legislature could not clothe these two officers, without the consent of the people, with a discretionary power of taxation or creating a debt, because they are not, of themselves, the corporate authorities, in the sense of the constitution.” That case is conclusive of this question. We have seen the people had not voted to create a debt or to issue bonds, and the General Assembly had no power to authorize these officers to create a debt, if for no other reason, because they were not corporate authorities. So, no power was conferred to create this debt by a vote of the people, nor by the amendatory act, and the bonds must be held void, (see Williams v. The Town of Roberts, 88 Ill. 11,) and hence are not binding in the hands of an innocent holder, as he was dealing in municipal securities, and he was bound to see that those issuing them had authority. The bonds being void, the court below did right in enjoining the collection of the tax for the payment of interest thereon, and the decree must be affirmed. Decree affirmed.