Leach v. People ex rel. Patterson

12 N.E. 726, 122 Ill. 420

• Court: Illinois Supreme Court
• Decided: June 20, 1887
• Status: Published

Opinions

Mr. Chief Justice Sheldon

delivered the opinion of the 'Court:

This was an application made by the collector of taxes for Wayne county, in this State, for judgment for delinquent taxes against certain real estate of the appellant in that county. The taxes delinquent were levied to pay interest on $200,000 of bonds, purporting to be bonds issued by Wayne county in 1869, and in January, 1870,—$100,000 as a donation to, and $100,000 for the stock of, the Illinois Southeastern Railroad Company, whose railroad runs through said county.

By'an act of the General Assembly, approved February 28, 1867, entitled “An act to change the time of electing certain ■officers in a county therein named, ” it was enacted “that the board of supervisors in Wayne county shall consist of five persons, to be elected in the following manner, to-wit: The townships of Four Mile, Hickory Hill and Arrington shall ■constitute the first electoral district of said county, and shall be entitled to one member of said board; the townships of Big Mound, Laniard, Jasper and Barnhill shall constitute the second electoral district in said county, and be entitled to two members of said board; the townships of Leech, Massillon, Mount Erie and Elm River shall constitute the third electoral district in said county, and be entitled to one member of said board; the remainder of said Wayne county shall constitute the fourth electoral district, and shall be entitled to one member of said board.” The second section provides that the members of the board shall be elected in each district on -the first Tuesday in April, 1867, and each four years thereafter. The third section provides for the organization of the board so composed, and that when organized it shall perform all duties enjoined upon, and shall have all the powers and privileges of, . the board of supervisors, acting under the general township organization laws of this State, and .that any three of the board shall constitute a quorum for the transaction of any business.

The objection taken to the tax is, that the bonds are not valid, their alleged invalidity consisting in their having been issued under authority of this board of supervisors thus constituted. It is contended that the statute aforesaid is unconstitutional.

The county of Wayne was organized under township organization in 1860, under the general law for township organization, with fifteen towns, the general law being in pursuance of section 6, article 7, of the constitution of 1848, as follows: “The General Assembly shall provide, by a general law, for a township organization, under which any county may organize whenever a majority of the voters of such county, at any general election, shall so determine; and whenever any county shall adopt a township organization, so much of this constitution as provides for the management of the fiscal concerns of the said county by the county court, may be dispensed with, and the affairs of said county may be transacted in such manner as the General Assembly may provide.”

February 26,1867, the legislature passed an act chartering the Illinois Southeastern Railroad Company, (2 Private Laws of 1867, p. 750,) and one among its provisions was: That the county board, or board of supervisors, where the county had adopted township organization, of any county through which the road might pass, was authorized, under a vote of the people of the county, to donate to the railroad company, towards building the railroad, any sum not exceeding $100,000, and might order the clerk of the county board, or board of supervisors of the county, to issue bonds of the county to the amount donated. By an amendatory act, approved and in force February 24, 1869, counties through which said railroad should pass were authorized to subscribe to the capital stock of the railroad, and to issue bonds therefor, upon a vote being had in favor thereof. All subscriptions to the capital stock of or donations to the railroad company, theretofore made by any county, were, by this act, legalized.

On February 25, 1868, an election was had upon a call of this board of supervisors, composed of five persons, on two propositions submitted by them,—one to donate $100,000, the other to subscribe to the stock of the railroad company $100,000. The vote was in favor of both propositions.

It is insisted that this act in relation to the board of supervisors in Wayne county is a special act, and so in violation of section 6, of article Y, of the constitution of 1848, that “the General Assembly shall provide, by a general law, for a township organization, ” etc. Township organization respects towns, and the conduct of the affairs of'towns, not of counties. For management of the latter’s affairs there is separate provision from that of township organization. The section itself recognizes the distinction. It provides that whenever any county shall adopt township organization, so much of the constitution as provides for the management of the fiscal concerns of the county by the county court may be dispensed with, and the affairs of the county may be transacted in such manner as the General Assembly shall provide,—that is, that the General Assembly may, not shall, dispense with the county court for the management of the county’s fiscal concerns, and the affairs of the county may be transacted in such manner as the General Assembly shall provide,—as they shall provide, unrestricteclly,—not as they shall provide by general law. We do not perceive why, consistently with this section, the legislature might not have declined to dispense with the county court for the management of the fiscal affairs of Wayne county, and have suffered that court to remain as it was, in that respect; or why there might not have been a different body for the transaction of the affairs of Wayne county from such as existed in other counties, or a body differently constituted. By the constitution of 1848 there, was no prohibition of the enactment of special or local laws. This act of February 28,1867, respects only the composition of the board of supervisors of Wayne county, for the management of the affairs of Wayne ■county. It does not touch the matter of township organization for the transaction of the affairs of towns, and does not, as we conceive, contravene the constitutional provision in respect of a general law for township organization.

There is a particular, however, wherein this law must be regarded as liable to a constitutional objection. The constitution of 1848 contained the provision: “And no private or local law which may be passed by the General Assembly shall embrace inore than one subject, and that shall be expressed in the title.” (Art. 3, sec. 23.) The title here is, “An act to change the time of electing certain officers in a county therein named.” The main subject of the act in question was, the change of the composition of the board of supervisors in Wayne county,—to diminish the number of the members of the board n,s provided by the general Township Organization law, and to change the mode of their election, from towns singly, to groups •of towns. This subject was not expressed in the title, nor was it in any way germain to the purpose which was expressed in the title. To change the time of electing certain officers signified that particular merely,—the change of the time of election,—and did not at all embrace the main object of the law. The title was deceptive and misleading, giving no intimation . of the more important purposes of the act. Without disregard of this constitutional requirement, we do not see that we can do otherwise than to hold this act to be violative thereof, and therefore void. See The People v. Mellen, 32 Ill. 181; The People v. Inst. Prot. Deaconesses, 71 id. 229; Middleport v. Ætna Life Ins. Co. 82 id. 562; Welch v. Post, 99 id. 471.

The act then being held to be not valid, does it follow, as ■contended by appellant, that the acts of the official body elected under the law, in compliance with its provisions, are null and void? This body was the de facto hoard of supervisors of "Wayne county, with color of legal title, and it is the well settled principle that the acts of such officers are valid when they ■concern the public, or the rights of third persons who have an interest in the act done. But it is said that this principle applies only where there is a de jure office for a de facto officer to fill,—citing the recent case of Norton v. Shelby County, 118 U. S. 425, as so holding; and it is insisted there was no de jure board of supervisors of Wayne county. Wherever township ■organization prevails, there is, in every county, a board of ■supervisors for the transaction of the affairs of the county. The act in question merely changed the number of the members of the board from fifteen to five, and the mode of election from towns singly, to two or more towns unitedly, and the term of ■office. Nothing was added to or taken from the powers or duties of the board. After the passage of the act there still remained the board of supervisors of Wayne county, the official body for the management of the county’s affairs, and the persons elected as members, under the act, went on, under the sanction of the statute, and exercised the powers and duties of the board of supervisors of Wayne county without question. There was no rival board, but it was the sole acting hoard of •supervisors in Wayne county. Were not the public justified in relying upon it as the board of supervisors of Wayne county ?

In Norton v. Shelby County, supra, the opinion in the case of State v. Carroll, 38 Conn. 449, is referred to as containing an admirable statement of the law upon the subject of the validity of the acts of de facto officers. In the Connecticut case it was said: “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the officer were exercised: First, without a known appointment or, election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. * * * Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise,—such ineligibility, want of power or defect being unknown to the public. Fourth, under color of an election or appointment, by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.”

It appears to us that the case at bar is one which comes within the category last named. There was such a legal official body known to the law as the board of supervisors of Wayne county, the powers and duties of which official body were in the present case exercised by persons, under color of an election, as members thereof, in pursuance of a public, unconstitutional law. The real cause of complaint is, that the office legally existing was illegally filled. The eases are numerous which hold that the acts of a public officer elected or appointed under an unconstitutional law are valid as respects the public and third persons, a number of which are cited in the case of State v. Carroll, and referred to in Norton v. Shelby County. In The People ex rel. v. Bangs, 24 Ill. 184, a law providing for the election of a judge was held unconstitutional and the election under it void, yet it was said the judge so elected had color of office, no doubt, and acting as he did, under color of office, that his acts were as valid, of course, as if the law had been constitutional. In Trumbo v. The People, 15 Ill. 561, a school district was held not to be legally established. So far as that alleged district was concerned, there was no such legal school district, .and there was no de jure office of school director of that alleged school district; yet upon a proceeding to collect a tax levied by persons assuming to be and acting as school directors of the district, the tax was sustained, it being held that the school directors were officers de facto by color of an election, and that their acts, when they concerned the public and third persons, were as valid as though they were officers de jwre,—that in such a collateral proceeding the legality of the formation of the school district could not be inquired into, and that it could only be done by information in the nature of a quo warranto.

If the local law providing for the election of five members of the board of supervisors of Wayne county be unconstitutional, then the general law in regard to the board of supervisors remained in force. Under the general law, the town supervisors were members of the board of supervisors by virtue of their office as town supervisors, and under the general law they held their offices until others were elected or appointed in their places, and qualified. The case then would be, that there were two elected sets of members of the board of supervisors of Wayne county,—one of fifteen members, elected under the general law, the other of five members, elected under the local law. There was, all the while, the legally established office or official body of the board of supervisors of Wayne county. And so far as respects the present question, there would not seem to be any substantial distinction between this case and that of The People v. Bangs, where there were two elected judges, the one who was rightfully elected, and the one elected under the unconstitutional law, and it was held that the acts of the latter were valid . as those of a defacto officer. And the same as to the other cases cited and referred to as above mentioned, where there were two officers in respect of the same office, one lawfully elected, the other appointed or elected under an unconstitutional law, and it was held, the latter was a defacto officer and his acts were valid.

It is said that the general law requires a majority of the-members to constitute a quorum for the transaction of business,, which, in Wayne county, under that law, would be eight, and that five members, under the local law, would not be a sufficient, number to form a quorum for the transaction of business. But. the question in hand is, whether the members elected under the: local law are to be regarded as defacto officers. If so, then the-board which they constituted would be a defacto board, and a majority of its members would constitute a defacto quorum. After the passage of this local law, the town supervisors of' Wayne county, who, under the general law, by virtue of their office, were members of the board of supervisors, and continued such until others were elected in their places, declined all action as such members, and yielded to the persons elected as members under the local law, as the rightful board of supervisors of' Wayne county. The latter, under their election, in pursuance-of the act of the General Assembly, entered upon the duties of' their office, and went on and exercised the powers and duties of the board of supervisors of Wayne county for years, without, question of their right to do so. They had the sole management and transaction of the affairs of the county, and did all the official legislative business of the county which there was done. There was no other official body ready and willing to ■ do it. They were recognized and acquiesced in by all the public as the board of supervisors of Wayne county, and to hold their acts to be invalid would be most disastrous to the public interest, and that of individuals who were justified in relying-upon such acts as the .acts of the board of supervisors of the-county. There are present, here, all the elements which, from considerations of public policy and for the avoiding of public inconvenience, have been recognized as going to make up the-character of defacto officers, whose acts should be held valid,— as officers, by virtue of an election as such, under an act of" ¡the legislature; reputation of being public officers and public-belief of their being such; public recognition thereof, and. public acquiescence therein; and action as such unquestioned, during a series of years, with no other body ready and willing; to act as the board of supervisors.

We are therefore of opinion that this act of February 28, 1867, in relation to the board of supervisors of Wayne county, even if it be unconstitutional, was sufficient to give color of title that the official board, elected and acting under the law, were officers defacto, and that their acts should be held valid, so far as the public and third persons are concerned.

The judgment will be affirmed. J °

T , . ~ 7 Judgment affirmed.