Mr. Chief Justice Walker
delivered the opinion of the Court:
This was a petition for a writ of mandamus to compel Jackson county to issue its bonds to relator, to pay a subscription of $200,000 to its capital stock claimed to have been made by the county.
Relator claims that the subscription was in all things regu-' lar; that the company had complied with all the terms and conditions imposed by the subscription, and had tendered $200,000 of paid up stock of the company.
Respondent claims that the elections at which the vote resulted in favor of subscription were so irregular, and so far failed to comply with the law, that no power was thereby conferred on the county authorities to make the subscription or to issue the bonds.
Relator further claims that if the elections failed to confer such power, still the authorities were empowered by the act amending its charter, adopted on the 16th of February, 1869, which cured all irregularities and defects in the first election, held June 9, 1868, for $100,000, and operated to confer ample power on the county court to issue that amount of bonds. But in opposition to this position, it is urged that this enactment is unconstitutional and void.
When the elections were held on each proposition to subscribe, and when the vote was canvassed and the results of these elections reached and announced, and when the subscription was made, the affairs of the county were under the control of the county court,—but since that time township organization has been adopted, and hence this proceeding is against the board of supervisors.
The county court entered an order calling an election pn the 9th day of June, 1868,.to determine, by a vote, whether the county should subscribe for $100,000 of the capital stock of. relator’s company. The order for and the notice of this election imposed^ the conditions, that the bonds were to run twenty years at the option of the county; to bear eight per cent interest per annum, from the time they should be issued; no part of the bonds to be delivered until the road should be completed to the city of Murphysboro, and then one-half only, and the other half when the road should be completed from Cairo to St. Louis and cars run thereon. At this election there was the requisite majority of the votes in favor of the subscription, as was declared by the county court, on a canvass of the same. This election was called and held under the act of 1849 authorizing counties and cities to make subscriptions to railroad companies.
On the 12th day of June, 1869, an election was called by the county court, to be held on the 24th of July of that year, to determine whether the county authorities should subscribe an additional §100,000 for stock of the company and issue that amount of bonds to pay therefor. The conditions were the same as in the order calling the first election, with a proviso that no liability should be incurred by the county to issue the bonds or to pay interest on the subscription, until the full performance by the company of all the conditions precedent as therein prescribed. The election was held, and resulted in a large majority in favor of subscription.
Subsequently, on the 10th day of August, 1871, the county court, after reciting that the elections had been called, held under notices, and the result of each entered of record, ordered that a subscription be made under each for $100,000 of stock of the company. The company seems to have been notified thereof, and to have accepted the subscriptions. It also appears that a railroad was completed, at least from Cairo to near East St. Louis, and cars were run thereon, prior to the 1st of June, 1875, but it was what is known as a “ narrow gauge ” road.
Our present constitution having been adopted after these elections were called, held, and. the vote canvassed and the result announced, but before the subscription was made, the question is presented whether, if the elections were so far irregular as not to confer power on the county court to make the subscriptions, that body could, by finding facts and making the subscriptions, estop the county from urging that no power was conferred by the elections. A separate article of that instrument prohibits counties, cities, etc., from ever becoming subscribers to the capital stock of any railroad or private corporation, or to make any donations to or lend its credit in aid of such corporations. But the article contains a proviso, that its adoption shall not be construed as affecting the right of any such municipality to make such subscription, when thé same has been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption.
In the case of Jackson County v. Brush, 77 Ill. 59, where a question was raised in reference to the bonds on this subscription, it was said, that no subscription had been made by the county on the books of the company, or elsewhere, prior to the adoption of this constitutional inhibition. Hor had any been authorized to be made, so far as an order of the county court could accomplish it, until that body assumed to make it on the 10th day of August, 1871. It was also said, that unless it could be shown to be within the saving clause of that article, it would be held clearly invalid; that the burthen of proof rested on the company to show, affirmatively, the proposed subscription had been authorized under existing laws, by a vote of the people of the municipality to be affected, prior to the adoption of the present constitution.
In the case of the Town of Middleport v. Ætna Life Ins. Co. 82 Ill. 562, it was held, that since the adoption of the"constitution, it is plain any donation attempted to be made by a municipality in aid of a railroad, or private corporation, is forbidden absolutely. That the obligations assumed under then existing laws can not, since the adoption of that instrument, be enlarged or materially changed, either by the action of the people of the municipality, or its corporate authorities. All power is taken away, and the utmost that can be done is to make and complete the subscription or donation previously voted under then existing laws, upon the same terms and conditions voted. Subscriptions or donations on other terms would obviously require new consent on the part of the people of the municipality, which can not be had for want of power. That the burthen rests upon the party alleging the validity of the bonds issued since the adoption of the constitution, to show affirmatively that they were authorized by a vote of the people of the municipality, under existing laws, prior to the adoption of that instrument.
Applying the rule announced in these cases, it follows that any action of the county court had after the adoption of the constitution, could not affect the rights of the parties. If the vote was not legally had, by the omission of any material requirement of the law, the finding of the court that the law had been complied with could in nowise bind the county, as we have seen that since the constitutional inhibition, it devolves upon the party claiming, to affirmatively show that the law has been observed in conferring the power, in making the subscription, and in issuing the bonds. If the election was not properly held, then power was not conferred upon the county court to make the subscription or to issue the bonds.
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Mr. Chief Justice Walker
delivered the opinion of the Court:
This was a petition for a writ of mandamus to compel Jackson county to issue its bonds to relator, to pay a subscription of $200,000 to its capital stock claimed to have been made by the county.
Relator claims that the subscription was in all things regu-' lar; that the company had complied with all the terms and conditions imposed by the subscription, and had tendered $200,000 of paid up stock of the company.
Respondent claims that the elections at which the vote resulted in favor of subscription were so irregular, and so far failed to comply with the law, that no power was thereby conferred on the county authorities to make the subscription or to issue the bonds.
Relator further claims that if the elections failed to confer such power, still the authorities were empowered by the act amending its charter, adopted on the 16th of February, 1869, which cured all irregularities and defects in the first election, held June 9, 1868, for $100,000, and operated to confer ample power on the county court to issue that amount of bonds. But in opposition to this position, it is urged that this enactment is unconstitutional and void.
When the elections were held on each proposition to subscribe, and when the vote was canvassed and the results of these elections reached and announced, and when the subscription was made, the affairs of the county were under the control of the county court,—but since that time township organization has been adopted, and hence this proceeding is against the board of supervisors.
The county court entered an order calling an election pn the 9th day of June, 1868,.to determine, by a vote, whether the county should subscribe for $100,000 of the capital stock of. relator’s company. The order for and the notice of this election imposed^ the conditions, that the bonds were to run twenty years at the option of the county; to bear eight per cent interest per annum, from the time they should be issued; no part of the bonds to be delivered until the road should be completed to the city of Murphysboro, and then one-half only, and the other half when the road should be completed from Cairo to St. Louis and cars run thereon. At this election there was the requisite majority of the votes in favor of the subscription, as was declared by the county court, on a canvass of the same. This election was called and held under the act of 1849 authorizing counties and cities to make subscriptions to railroad companies.
On the 12th day of June, 1869, an election was called by the county court, to be held on the 24th of July of that year, to determine whether the county authorities should subscribe an additional §100,000 for stock of the company and issue that amount of bonds to pay therefor. The conditions were the same as in the order calling the first election, with a proviso that no liability should be incurred by the county to issue the bonds or to pay interest on the subscription, until the full performance by the company of all the conditions precedent as therein prescribed. The election was held, and resulted in a large majority in favor of subscription.
Subsequently, on the 10th day of August, 1871, the county court, after reciting that the elections had been called, held under notices, and the result of each entered of record, ordered that a subscription be made under each for $100,000 of stock of the company. The company seems to have been notified thereof, and to have accepted the subscriptions. It also appears that a railroad was completed, at least from Cairo to near East St. Louis, and cars were run thereon, prior to the 1st of June, 1875, but it was what is known as a “ narrow gauge ” road.
Our present constitution having been adopted after these elections were called, held, and. the vote canvassed and the result announced, but before the subscription was made, the question is presented whether, if the elections were so far irregular as not to confer power on the county court to make the subscriptions, that body could, by finding facts and making the subscriptions, estop the county from urging that no power was conferred by the elections. A separate article of that instrument prohibits counties, cities, etc., from ever becoming subscribers to the capital stock of any railroad or private corporation, or to make any donations to or lend its credit in aid of such corporations. But the article contains a proviso, that its adoption shall not be construed as affecting the right of any such municipality to make such subscription, when thé same has been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption.
In the case of Jackson County v. Brush, 77 Ill. 59, where a question was raised in reference to the bonds on this subscription, it was said, that no subscription had been made by the county on the books of the company, or elsewhere, prior to the adoption of this constitutional inhibition. Hor had any been authorized to be made, so far as an order of the county court could accomplish it, until that body assumed to make it on the 10th day of August, 1871. It was also said, that unless it could be shown to be within the saving clause of that article, it would be held clearly invalid; that the burthen of proof rested on the company to show, affirmatively, the proposed subscription had been authorized under existing laws, by a vote of the people of the municipality to be affected, prior to the adoption of the present constitution.
In the case of the Town of Middleport v. Ætna Life Ins. Co. 82 Ill. 562, it was held, that since the adoption of the"constitution, it is plain any donation attempted to be made by a municipality in aid of a railroad, or private corporation, is forbidden absolutely. That the obligations assumed under then existing laws can not, since the adoption of that instrument, be enlarged or materially changed, either by the action of the people of the municipality, or its corporate authorities. All power is taken away, and the utmost that can be done is to make and complete the subscription or donation previously voted under then existing laws, upon the same terms and conditions voted. Subscriptions or donations on other terms would obviously require new consent on the part of the people of the municipality, which can not be had for want of power. That the burthen rests upon the party alleging the validity of the bonds issued since the adoption of the constitution, to show affirmatively that they were authorized by a vote of the people of the municipality, under existing laws, prior to the adoption of that instrument.
Applying the rule announced in these cases, it follows that any action of the county court had after the adoption of the constitution, could not affect the rights of the parties. If the vote was not legally had, by the omission of any material requirement of the law, the finding of the court that the law had been complied with could in nowise bind the county, as we have seen that since the constitutional inhibition, it devolves upon the party claiming, to affirmatively show that the law has been observed in conferring the power, in making the subscription, and in issuing the bonds. If the election was not properly held, then power was not conferred upon the county court to make the subscription or to issue the bonds. And if that body possessed no such power, it could not, by finding facts, and assuming to act, estop the county from denying the power, or relieve the railroad company from proving that all material requirements of the law had been observed essential to the exercise "of the power.
The prohibition is general and positive in all cases but those saved by the proviso; and it is .a well recognized rule, that a person claiming a right saved by a proviso or exception in a statute, must show that the right claimed is clearly within the proviso or exception. Until thus established, the presumption is that it is embraced in the enacting clause. These orders of the 10th of August, 1871, therefore, having been made after this article of the constitution went into effect, in finding that the elections had been duly held in pursuance of law, did not prove that fact, as the county court had no power to thus bind the county, and consequently the county is not estopped from denying the want of a compliance with the law in holding the elections, nor does that finding relieve relator from proving the fact.
Has relator shown, by other evidence, that proper and legal notices of these elections were given? We think not. Cully testified that he was sheriff at the time, and that the notices for the various precincts of the county came to his hands more than thirty days before the election held in June, 1868, and that he posted a portion, and divided the balance between his two deputies to be posted. These deputies were not called as witnesses to prove they posted the notices given to them, but a number of witnesses were called who testified they saw notices in various precincts of the county before the election, but are not definite, in regard to some precincts, as to the number’, or the length of time they saw them before the election. We are unable to find any evidence that notices were posted or seen in a portion of the precincts; and the evidence as to the election subsequently held in 1869, is equally loose, indefinite, and unsatisfactory in its character. The burthen was upon relator to prove that the notices were given. It being a special election and the exercise of a special power, a compliance with the authority must be shown, and can not be inferred.
With regard to elections held under the general election laws, the presumption is the reverse, as there the time of holding the election is fixed by law, and it operates as a notice, and notice will be presumed, and if disproved, such an election would nevertheless be in all respects valid and binding.
The statute under which the first election was held required thirty days’ notice to be given; and a notice for the required time is, in the various precincts, indispensable to confer power on the county authorities to subscribe "for stock or to issue bonds. This is settled by numerous decisions of this court. See Force v. Town of Batavia, 61 Ill. 99; Marshall v. Silliman, 61 id. 218; Wiley v. Silliman, 62 id. 170; Harding v. Rock Island and St. Louis R. R. Co. 65 id. 90; The People v. Town of Santa Anna, 67 id. 57. These cases hold that the power to incur such indebtedness by a municipality is solely dependent upon a strict compliance with the law authorizing it to. be contracted. When the power is conferred by a vote of the electors, the notice, to be effective, must be for the time required by the statute. The notice in such cases lies at the foundation of the delegation of the power to create the debt. If no notice is given, or for too short a period, the vote will confer no power, no matter how large the vote, even if unanimous. Nor will the county be estopped, by the completion of the road on the terms of the attempted subscription, from denying the legality of the election. See The People v. Town of Santa Anna, supra. And it is for the reason that the power to authorize the creation of indebtedness is conferred by the electors of the municipality in accordance with the statute; and the company are bound; on receiving the subscription, to see that the electors have conferred the power in the statutory mode, and failing to do so, the officers of the company act at their peril, and take the subscription charged with notice of the want of power. It follows, that there is no necessity for the people, or the municipal authorities, to give notice that the want of power will be relied on, when the bonds are called for in payment of the subscription. Nor can the company be heard to urge that they have performed labor and incurred liabilities on the faith of a subscription made without legal authority. The power to create indebtedness or subscribe for railroad stock not being an incidental power of municipal bodies, persons proposing to loan money to them or receive subscriptions for railroad stock must see that they possess the special power, and that the law is properly pursued.
It is also insisted, that any and all defects in giving notice and holding the first election was cured by the act amending relator’s charter. (Private Laws 1869, vol. 3, p. 257.) The second section of that act contains a proviso, “that all elections heretofore held in any county, city or town in reference to subscriptions to said railroad, are hereby declared legal and binding, and the county court of any county, and the corporate authorities of any city or town in which elections have been already held, and a majority of the votes cast were for subscription, shall have authority to issue bonds for such an amount as was voted for, notwithstanding any insufficiency or informality in such election or in the notice thereof.”
Without stopping to inquire whether the General Assembly can, by a proviso, confer rights and powers, we will determine whether this proviso, conceding it to be a proper mode of conferring power, is or not in contravention of our present constitution.
In the cases of Marshall v. Silliman, and Wiley v. Silliman, supra, as also other cases in our reports, it is held that the constitution having prohibited the General Assembly from imposing indebtedness or taxes on municipalities, it only has power to authorize such bodies to do so, and that it is not competent to render a void election held for the purpose of creating a debt, valid. If the election fails to confer the power to create a debt, by reason of a failure to comply with the law, for the legislature to render it valid would be to confer a new power directly by its enactment alone and without the assent of the voters of the municipality; and if the authorities were required to act, the debt would be created by the General Assembly, and not by the municipality, with its consent.
If it were conceded that the General Assembly, in 1869, had the power to authorize the county court to make this subscription, by curing the defects in the election of June, 1868, the power was not exercised before the adoption of the constitution in 1870; and if the General Assembly did confer the power, the separate article of the fundamental law repealed the curative act before the county court took any steps under its provisions. The language of the article is general in prohibiting counties, after its adoption, from making such a subscription. Were it not for the proviso, it is absolutely certain that the provision contained in this article would prohibit the county court from subscribing. Then, is that right preserved by the proviso? It only saves the power where the subscription was authorized under existing laws and by a vote of the people of the municipality. ¡Now, if it had been intended to save the power when conferred by statute alone, the words “by a vote of the people of such municipalities prior to such adoption” would have been omitted; but their insertion seems to have-been intended to withdraw the power when it depended alone on legislative grant, and it has done so most effectually. Power previously conferred by statute on officers of such municipalities without the vote of the electors, and not then exercised, is not named, and consequently is not embraced in, but is excluded from the proviso.
As necessary and proper notices were not proved to have been given for this election, it conferred no power on the county court, and is as though no election had been held. Had the county court made this order for subscription and for issuing these bonds, by and under the curative act, before the adoption of this provision of the constitution, possibly a different question would have been presented; but this provision abrogated all unexercised power attempted to be conferred by the curative act of 1869. If the power was well conferred, to have been effective it should have been exercised before it was withdrawn by the constitution.
The county court took no steps and did no act, in the exercise of the power attempted to be conferred by the act of 1869, after its passage and before the constitution went into effect. ¡Mor did that act make the subscription, or profess tq, do so, nor did the General Assembly have such power. It only attempted to confer the power on the county court, leaving it optionary with that body to exercise the power if it should so choose. They did not exercise the power before it was withdrawn. So the act by its own vigor did not operate as a subscription.
On a careful examination of the entire record we fail to discover any error in the judgment of the court.below, and it is affirmed.
Judgment affirmed.
Mr. Justice Mulkey took no part in the consideration of this case.