Johnson v. County of Stark

24 Ill. 75

• Court: Illinois Supreme Court
• Decided: April 15, 1860
• Status: Published

Opinion

Walker, J.

It is urged, in affirmance of the judgment below, that the General Assembly had no constitutional warrant for the enactment of 1849, authorizing counties and cities to become shareholders in railroad companies. If this position be true, it then follows that plaintiff has no right to recover on this coupon, and the judgment of the court below must be affirmed. We shall therefore proceed to the consideration of this question. Our attention is called first to the 38th section of article three, of our constitution, as prohibiting the exercise of this legislative power. In the case of Prettyman v. Tazewell County, 19 Ill. R. 406, this provision of that instrument was considered, and held by this court not to militate against this enactment, and that the law was not in conflict with it. We have not as yet perceived any reason to change the conclusion then announced.

It is again urged, that this act is in violation of the 8th section of article 13, which is this: “ That no freeman shall be imprisoned, or disseized of his freehold or privileges, or outlawed. or exiled, or in any manner deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.” This great principle of Magna Charta was incorporated into our bill of rights, to better secure the citizen against the exercise of arbitrary power by any of the departments of government. It was feared that in the limitation of the powers of government, in the other part of the constitution, the rights of the citizen might not have been secured, by express provision, against the exercise of power so unjust and oppressive as this section expressly prohibits. The security afforded by this section is deemed essential to the well being of society, and embraces principles that lay at the very foundation of all constitutional government. This act does not profess to disseize the citizen directly of his property, but by incurring this debt, its payment by taxation follows as a consequence. The question then arises, whether the tax thus imposed and collected, would deprive the citizen of his property contrary to the law of the land. It, when levied, would necessarily be imposed on all the property within the limits of the county belonging to individuals, and would be of a uniform rate upon its valuation. That mode alone being recognized by the constitution in the imposition of such taxes. Were an effort made to deprive the citizen of his property or freehold by a tax imposed alone on him, to which the property of other individuals in the same local division was not made subject, it would no doubt violate this section of the constitution, but this act professes no such object, nor can it by any means be held to have such an operation. We are not aware that this provision of the bill of rights, which it is believed has been incorporated into the constitution of each of the several States of the Union, has ever been held' to limit or in any way restrict the general taxing power exercised under and in conformity to the constitutional limitations on that subject.

It is also supposed that the enactment under consideration is repugnant to the 11th section of the same article of that instrument. This article provides that the property of the citizen shall not be taken or applied to public use, without the consent of his representatives in the General Assembly, nor without just compensation being made to him. This eminently just and important provision was designed to secure the citizen in representation, as a condition to the imposition of the burthens of government, and also to secure him a full compensation, in value, for his property, when it might, by enactment of the General Assembly in which he was represented, be taken and appropriated to public use. This provision has made the right to appropriate private property to public use, to depend upon a right to be represented in the General Assembly which should enact the law making such appropriation. Hence this provision has required that it shall not be taken or applied without the consent of his representatives, or without compensation. It was intended to secure, and does secure, the citizen against the appropriation of his property to public use, except it be under and in accordance with legislative enactment. If done in any other mode, it would be without constitutional warrant. But it is believed that this provision has no reference to the taxing power enjoyed by the government. That power depends upon, and is governed by other principles, and is regulated by other provisions of that instrument. This provision was designed to regulate the exercise of the right of eminent domain by the government, and to regulate the mode in which the exigencies of government might be relieved, when it should become necessary to appropriate any species of property owned by an individual, for that purpose. But it in no wise relates to, or affects the general taxing power of the government, and therefore does not prohibit the adoption of this enactment of the legislature.

We come now to the consideration of the fifth section of the ninth article, upon which the weight of the argument in this case, against the constitutionality of this act, was based. It is this : “ The corporate authorities of counties, townships, school districts, cities, towns and villages, may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property, within the jurisdiction of the body imposing the same. And the General Assembly shall require that all the property within the limits of municipal corporations, belonging to individuals, shall be taxed for the payment of debts contracted under authority of law.” As before observed, it is urged that the act under consideration is supposed to be unconstitutional, by defendants in error, because a tax on the property of individuals in the county, to meet this indebtedness, follows its creation as a necessary consequence. This constitutional provision is too clear and explicit, in conferring upon the General Assembly power to authorize the county to levy and collect such a tax, for corporate purposes, to admit of any question. It then becomes necessary to ascertain, whether the aiding in the construction of a railroad running through its limits, is such a county purpose as authorizes the legislature to confer upon it that power.

That the public at large, the individual shareholders of the company, and the citizens of the county, all have an interest in the construction of such a road, is too plain to admit of any doubt. By its completion, the public have increased facilities for travel and transportation, the shareholders the prospect of profit on their investment, and the citizens of the county have afforded to them increased facilities for trade and commerce, enhanced value to property within their local division, with the more speedy development of their agricultural and other resources. The citizens of the county, while they enjoy advantages common to the public at large, have other and more important benefits resulting from its construction. In the completion of these improvements, the whole community is either immediately or remotely interested, those near the line on which it passes, in a larger, and those more remotely situated, in a less degree. But all participate in its benefits.

In the affairs of life, public and private interests are so closely blended, that it is difficult to draw the line separating, in all cases, the one from the other. Numerous cases may be given, fully illustrating each, but the establishment of any rule by which each may be distinguished from the other, is, perhaps, impracticable. All will perceive that the building of courthouses, jails, poor-houses, the opening and keeping in repair of common highways, and the erection and maintenance of bridges, by which they are rendered useful to the people, are “ county purposes,” for which the people of the county may be taxed. And that the erection of hotels, mercantile, manufacturing, trading and banking houses, although of great importance to the prosperity of the community, are not such purposes as were contemplated by the framers of the constitution. These are properly regarded as matters of individual enterprise, and cannot, in any reasonable or just sense, be regarded as public or county purposes.

Then, is the construction of a railroad, through a county, within the meaning of this section of the constitution, such a county purpose ? Common highway s, turnpike roads, toll bridges, and improvements of that character, and for which local taxes may be imposed, have been so held by judicial determination, and so regarded in numerous cases where the power has never been questioned. Then, if a common highway, a turnpike road, or a toll bridge, be a county purpose, which authorizes municipal corporations to become shareholders, to aid in their construetion, no reason is perceived why a railroad is not such a county purpose. It has for its object the same purposes that are attained by the others. But this is not a question of first impression in the courts of this country. It has been presented and judicially determined in numerous cases, in all of which it is believed to have been held to be a corporate purpose, authorizing the levy of a local tax, for the payment of the subscription. Nichol v. Mayor and Aldermen of Nashville, 9 Humph. 252; Louisville and Nashville Railroad Company v. The County Court, Davidson et al., 1 Snede R. 637 ; Goddin v. Crump et al., 8 Leigh, 120; Talbot v. Dent, 9 B. Mon. 526 ; Thomas v. Leland, 21 Wend. 65; Slack v. Maysville and Lexington Railroad Company, 13 B. Mon. 1; Commonwealth v. Mc Williams, 1 Jones, (Penn.) 61; The People v. Mayor of Brooklyn, 4 Comstock, 419.

This doctrine is fully recognized in the case of Shaw v. Dennis, (5 Gilm. 405,) by this court. And these authorities of our sister States proceed further, and hold, that to render -such an improvement a corporate purpose, it need not be confined to or penetrate the limits of the county or city making the subscription. The question, whether such improvements are county purposes, is not presented for decision by this record, and we therefore refrain from the expression of any opinion.

It is also urged, that when the agents of the county executed one bond for the entire subscription, that they had thereby exhausted their authority to bind the county, and that their subsequent acts were unauthorized and void. The evidence shows that when that bond was issued, it was only done for the reason, that there was not on hand the necessary blanks to issue them in any other mode. It was at that time agreed between the parties, as soon as blanks could be procured, that the bond, previously issued should be returned, and others issued in sums of one thousand dollars each, which was afterwards done, and the bond to which this coupon was annexed is one of those thus issued. In the view we take of this question, it can matter but little whether or not the authority at first conferred by the county upon these agents, authorized them to take up that bond and issue others for the amount, as the county, by repeated subsequent acts, has fully ratified and confirmed these latter bonds.

That bond was returned and delivered to the agents of the county, and it has never been tendered back or returned to the railroad company to whom it was issued, nor to the plaintiff in this suit. By holding, it, they acknowledge the legality of the issue of these bonds. Again, they have, at two elections, cast the vote for directors of this road, which the stock received for these bonds entitled the county to give. They also, by order of their board of supervisors, have paid two annual installments of interest falling due upon these bonds, and took up and destroyed the coupons therefor. When the president of the board of supervisors was "one of those agents of the county, to issue the bonds, it is impossible to believe that the board of supervisors were not fully apprized of the mode in which they were issued, and intentionally regarded them as legally issued and binding, when they performed these several acts. These acts, unexplained, are as satisfactory evidence of a design to ratify the issue of these bonds, as if it had been done by an order of the board of supervisors.

It is also alleged, that informalities have occurred, in giving the notice and in conducting the election, to determine whether the county would, or not, authorize a subscription to this road, and for that reason, the bonds and this coupon are void. In the case of Prettyman v. Tazewell County, 19 Ill. R. 406, it was held, that if such irregularities had occurred, it was necessary, for the purpose of preventing the officers from proceeding, to make the subscription, and to issue the bonds, that steps must be promptly taken by an appropriate remedy to contest the election, and restrain them from proceeding. And that we would not inquire, after any considerable delay, whether fraudulent means had been resorted to for the purpose of procuring a favorable result to the election for subscription. It would be manifestly against every principle of justice to permit the taxpayers and citizens of a county, through their officers, to procure money, labor or materials, upon bonds of the county, issued on an affirmative vote of the citizens at an election held in a case authorized by the law, to escape all liability because of some slight informality in conducting the election, which was, or at least might have been, readily known to every citizen of the county before the bonds were issued. Counties have no right to procure all the benefits of an act which they are authorized to perform, recognized and acted upon by them as legal, and then escape liability, any more than have private individuals. They must respond to their legal engagements to the same extent as individuals.

hi or does it. make any difference that the enterprise in which they have engaged has proved to be ill advised, if it was within the scope of their authority. In this case, the whole matter was submitted to the determination of the citizens, to be affected by it. They were left perfectly free to choose for themselves whether they would lend the aid of the county to the enterprise. They haye not even the right to complain that they had no choice in the imposition of the burthen. By issuing these bonds to the company, the county became.one of the largest owners of, or shareholders in the road, and, in common with the other shareholders, undertook its control and management, by directors and officers of their own choice. And there can be no pretense of right to impose the loss growing out óf the want of success in the enterprise, upon a bona fide holder of the identical bonds given by the county to become' a part owner of this road. He can, by no process of reasoning, be held liable for the acts of the county, or their agents, in which he had no participation. If the directors of the road, in whose election the county had its voice, have, in executing their trust, exceeded their authority, or acted in a reckless disregard of the interest of the stockholders, or wasted or misapplied the means of the company, the county, as a shareholder, or any citizen of the county, being a tax payer, had the right to restrain them from thus proceeding. They have failed to take any such steps, so far as this record shows, and they, like the other stockholders, must be bound by the acts of their directors.

It was held by this court, in the case of The People ex rel. v. Tazewell County, 22 Ill. R. 147, that counties and municipal corporations, unless specially authorized by legislative enactment, have no power to make their indebtedness payable at any other place than at their treasury. That proceeding was an application for a writj of mandamus, to compel the board of supervisors to issue bonds and coupons, payable in the city of New York. The application was based upon a demand of such bonds and coupons; and as there had been no demand of such securities payable at the county treasury, the question now under consideration was not then before the court, and was not determined. The board of supervisors could not be in default until they had refused to issue bonds and coupons, authorized by law, upon a proper demand. No such demand was made in that case, and therefore the court could not compel them to proceed to issue such securities. This case presents the question, whether instruments, evidencing their indebtedness payable specifically at any other place, are void, or whether they may be upheld as payable at their treasury. This coupon on its face purports to be payable at the city of New, York. The doctrine is well recognized, that in exercising a power, all acts performed in excess of, or beyond the power delegated, must be rejected as unwarranted; and if, after their rejection, there has been enough done to show a proper execution of the power, the act will be sustained, irrespective of the acts beyond the power delegated. But, on the contrary, if the acts performed beyond the authority conferred, are so inseparably connected with the acts properly performed, that by their rejection, the power remains unexecuted, then the whole transaction must be rejected as void. When tested by this rule, it will be perceived that this coupon may be sustained as valid, and payable at the treasury of the county. The law authorized the county to issue it, and requires no place of payment to be named. And where none is specified, it, by operation of law, is payable at the treasury. If this coupon had not contained the language, “ at the city of New York,” it would have been a legal instrument, strictly conforming to all the requirements of the law authorizing counties. to issue evidences of indebtedness. If, then, this unauthorized portion of the coupon were rejected, it would be in conformity to the law, and for the purpose of upholding it, the law will reject that portion, as surplusage. This doctrine was announced by the very able district judge of United States District Court for Wisconsin, in the case of Mygatt v. The City of Greenbay, which was precisely similar to this case.

It is also urged, that the plaintiff has no legal title to this instrument, which will authorize a recovery. The bond to which it was annexed was duly assigned to plaintiff; but there is no indorsement on the coupon. It seems to be the well-settled doctrine, that state, county, city and other bonds, and public securities of this character, are negotiable by delivery only, without indorsement, in the same manner as bank bills, especially when they are payable to bearer. Redfield on Railways, 595, and authorities cited. It is true, that this coupon names no person as payee, nor is it specifically payable to bearer. But the - promise is, “ to pay sixty dollars on this coupon.” The promise is to pay the sum named on the instrument, and it can only be demanded by the person holding it, and precisely as if it was payable in terms to bearer. There is no room to doubt that the specified amount, by the terms of the agreement, is payable to, and may be demanded by the holder after its maturity. Its legal effect is, that the money is to be paid on the coupon, and to the holder presenting it for that purpose. It then follows, that the holder may sue for, and recover the money in his own name.

j The only remaining question presented by this record is, whether (this coupon was admissible in evidence under the common money counts. We are not aware of any well considered case which has held, that a note not under seal, payable to bearer, is inadmissible under these counts. Nor is there any rule of pleading, or of evidence, which rejects such an instrument. If it, when issued, was delivered to plaintiff, it affords evidence that he has lent money to the maker, for which it was given, on if he purchased it of any other person, that he paid money for the use of the maker, on his debt, for which, the law implies a promise to pay him the amount specified in the instrument when it falls due. In either event, this coupon was admissible under the appropriate money count, and should have been admitted. The court below therefore erred in rejecting it as evidence, and the judgment must be reversed and the cause remanded.

Judgment reversed.