Walker, J.
At an election held in Tazewell county on the 24th day of September, 1853, for and against the county subscribing for twenty-five thousand dollars to the capital stock of relators’ road, the majority required by law was favorable to such subscription. A part of the question submitted was whether an issue of bonds of the county in payment of the subscription, to draw seven per cent, interest per annum, payable semi-annually at the American Exchange Bank in New York should be made. At the September meeting, 1858, of the board of supervisors of Tazewell county, application was made to them, to subscribe for the stock, which they refused to do, and the shares of stock were tendered by the relators and refused, and the board also refused to issue the bonds of the county. And to compel a subscription and to issue county bonds in payment of the same, this application is made.
The return to the petition sets up numerous reasons why the subscription should not be made. We shall only notice a portion of them, as in the view we take of the case, it is not necessary to discuss the others. It is objected that the county had no right to issue bonds or other obligations, payable at any other place than at the county treasury. This court held in the case of Prettyman v. The Board of Supervi of Tazewell County, 19 Ill. R. 406, that it was only by virtue of the act of February, 1857, authorizing the County Courts of each county which had subscribed to the Tónica and Petersburg road, to make the interest of their bonds payable at any place they might choose. That act only applied to subscriptions to that particular road, and can have no application to any other. And it was there held, that the County Court had no power to issue bonds payable in the city of New York, for want of express authority by legislative enactment. States, counties and corporations, created for public convenience only, are not required to seek their creditors to discharge their indebtedness, but when payment is desired, the demand should be made at their treasury. That is the only place, at which payment can be legally insisted upon, and it is the only place, where the treasurer can legally have the public funds with which he is entrusted. To authorize the auditor to draw his warrants on the treasurer, payable in a sister State or in a foreign country, necessarily imposes an obligation on the treasurer, to provide funds at that place, to meet them. And his duties requiring him at the treasury, would require the employment of agents, the transmission of the funds at a risk of loss, and at a considerable expense, in charges, insurance and discounts, which are not incident to its payment at the treasury. And the same reasons apply with equal force, to cities, counties and public corporations, of a similar character. The legislature has conferred no such general power on such bodies, and in its absence, they have no power to make their indebtedness payable at any other place,' than at their treasury.
The next question we propose to consider is, whether.legislative enactments, authorizing counties and cities to subscribe for such stock, are compulsory, when the citizens have by vote determined in favor of a subscription. . That many acts authorized to be performed by such bodies are discretionary, and others are peremptory, will be readily conceded. That the mere grant of authority to such bodies, cannot be construed into a requirement of its performance, without discretion, is obvious. A large portion of their powers, are unquestionably of a discretionary character. But. when the law has imposed a duty and required its performance, there can be no discretion exercised, unless it be as to the time or mode of its performance, when neither are pointed out by the act enjoining the duty. To attempt the exercise of all the powers conferred upon those bodies, by the legislature, would seriously involve, if it did not bankrupt, every city, county and incorporated town in the State. Yet when the duty to act is enjoined, whether in express terms or by implication, there can be no choice but to perform the duty required. . Counties and cities are incorporations, created for public convenience, and to transact the public business of the communities embraced in their limits. They are dependent upon the legislature for their very creation, and from it, they derive all their authority to act. And it is therefore necessary to examine the various legislative enactments, to determine whether the power conferred upon counties to subscribe for stock in railroad companies is imperative or is only discretionary.
The first section of the act of November, 1849, (Scates’ Comp. 950,) provides, “ That whenever the citizens of any city or county in this State, are desirous that said city or county should subscribe for stock in any railroad company already organized or incorporated, or hereafter to be organized or incorporated under any law of this State, such city or county may, and are hereby, authorized to purchase or subscribe for shares of the capital stock in any such company, in any sum not exceeding one hundred thousand dollars for each of said cities or counties; and the stock so subscribed for or purchased, shall be under the control of the County Court of the county, or Common Council of the city making such subscription or purchase, in all respects as stock owned by individuals.” The second section, authorizes cities and counties to borrow money, or to issue their bonds in payment for such stock. The third section, authorizes the railroad company to which such subscription may have been made, to receive city or county bonds at par, in discharge of such subscriptions, and to dispose of them. The fourth section, provides, that no subscription or purchase shall be made or bond issued by any county or city under the provisions of the act, whereby any debt of such city or county shall be created, to pay such subscription, unless sanctioned by a majority of the votes of the county, at an election to be held to ascertain the fact, and points out the mode of submitting the question to a vote of the city or county. And by the last clause of this section it is provided, that “ No bonds shall be issued under the provisions of this act by any county or city, excepting for the amounts required to be paid at the time of subscription, and for amounts of and at the time when assessments upon all stockholders of said company shall be regularly assessed and made payable.”
By an amendatory act of March 1, 1854, (Scates’ Comp. 953,) the last clause of the fourth section of the act of 1849, was so modified, as to authorize the city council, or the county judges, of any city or county, having subscribed for stock in railroad companies, to issue and deliver the whole, or any portion of the bonds of such city or county, payable on such subscription, at any time when in their opinion the interest of the city or county might be promoted thereby, whether calls had been made or not, on other subscribers.
The first section gives the power to cities and counties to ■ make such subscriptions when desired by their citizens, and it contains no other limitation, except as to amount. To authorize their legally constituted agents to make a subscription, it was under this sectiononly necessary that it should be desired by their citizens, and 'within the limited amount. This section contains no language that can by any rule of interpretation, be held to impose it as a duty, to make such a subscription. It only confers the authority, and provides that they may subscribe for, or purchase stock, under its limitations and restrictions.
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Walker, J.
At an election held in Tazewell county on the 24th day of September, 1853, for and against the county subscribing for twenty-five thousand dollars to the capital stock of relators’ road, the majority required by law was favorable to such subscription. A part of the question submitted was whether an issue of bonds of the county in payment of the subscription, to draw seven per cent, interest per annum, payable semi-annually at the American Exchange Bank in New York should be made. At the September meeting, 1858, of the board of supervisors of Tazewell county, application was made to them, to subscribe for the stock, which they refused to do, and the shares of stock were tendered by the relators and refused, and the board also refused to issue the bonds of the county. And to compel a subscription and to issue county bonds in payment of the same, this application is made.
The return to the petition sets up numerous reasons why the subscription should not be made. We shall only notice a portion of them, as in the view we take of the case, it is not necessary to discuss the others. It is objected that the county had no right to issue bonds or other obligations, payable at any other place than at the county treasury. This court held in the case of Prettyman v. The Board of Supervi of Tazewell County, 19 Ill. R. 406, that it was only by virtue of the act of February, 1857, authorizing the County Courts of each county which had subscribed to the Tónica and Petersburg road, to make the interest of their bonds payable at any place they might choose. That act only applied to subscriptions to that particular road, and can have no application to any other. And it was there held, that the County Court had no power to issue bonds payable in the city of New York, for want of express authority by legislative enactment. States, counties and corporations, created for public convenience only, are not required to seek their creditors to discharge their indebtedness, but when payment is desired, the demand should be made at their treasury. That is the only place, at which payment can be legally insisted upon, and it is the only place, where the treasurer can legally have the public funds with which he is entrusted. To authorize the auditor to draw his warrants on the treasurer, payable in a sister State or in a foreign country, necessarily imposes an obligation on the treasurer, to provide funds at that place, to meet them. And his duties requiring him at the treasury, would require the employment of agents, the transmission of the funds at a risk of loss, and at a considerable expense, in charges, insurance and discounts, which are not incident to its payment at the treasury. And the same reasons apply with equal force, to cities, counties and public corporations, of a similar character. The legislature has conferred no such general power on such bodies, and in its absence, they have no power to make their indebtedness payable at any other place,' than at their treasury.
The next question we propose to consider is, whether.legislative enactments, authorizing counties and cities to subscribe for such stock, are compulsory, when the citizens have by vote determined in favor of a subscription. . That many acts authorized to be performed by such bodies are discretionary, and others are peremptory, will be readily conceded. That the mere grant of authority to such bodies, cannot be construed into a requirement of its performance, without discretion, is obvious. A large portion of their powers, are unquestionably of a discretionary character. But. when the law has imposed a duty and required its performance, there can be no discretion exercised, unless it be as to the time or mode of its performance, when neither are pointed out by the act enjoining the duty. To attempt the exercise of all the powers conferred upon those bodies, by the legislature, would seriously involve, if it did not bankrupt, every city, county and incorporated town in the State. Yet when the duty to act is enjoined, whether in express terms or by implication, there can be no choice but to perform the duty required. . Counties and cities are incorporations, created for public convenience, and to transact the public business of the communities embraced in their limits. They are dependent upon the legislature for their very creation, and from it, they derive all their authority to act. And it is therefore necessary to examine the various legislative enactments, to determine whether the power conferred upon counties to subscribe for stock in railroad companies is imperative or is only discretionary.
The first section of the act of November, 1849, (Scates’ Comp. 950,) provides, “ That whenever the citizens of any city or county in this State, are desirous that said city or county should subscribe for stock in any railroad company already organized or incorporated, or hereafter to be organized or incorporated under any law of this State, such city or county may, and are hereby, authorized to purchase or subscribe for shares of the capital stock in any such company, in any sum not exceeding one hundred thousand dollars for each of said cities or counties; and the stock so subscribed for or purchased, shall be under the control of the County Court of the county, or Common Council of the city making such subscription or purchase, in all respects as stock owned by individuals.” The second section, authorizes cities and counties to borrow money, or to issue their bonds in payment for such stock. The third section, authorizes the railroad company to which such subscription may have been made, to receive city or county bonds at par, in discharge of such subscriptions, and to dispose of them. The fourth section, provides, that no subscription or purchase shall be made or bond issued by any county or city under the provisions of the act, whereby any debt of such city or county shall be created, to pay such subscription, unless sanctioned by a majority of the votes of the county, at an election to be held to ascertain the fact, and points out the mode of submitting the question to a vote of the city or county. And by the last clause of this section it is provided, that “ No bonds shall be issued under the provisions of this act by any county or city, excepting for the amounts required to be paid at the time of subscription, and for amounts of and at the time when assessments upon all stockholders of said company shall be regularly assessed and made payable.”
By an amendatory act of March 1, 1854, (Scates’ Comp. 953,) the last clause of the fourth section of the act of 1849, was so modified, as to authorize the city council, or the county judges, of any city or county, having subscribed for stock in railroad companies, to issue and deliver the whole, or any portion of the bonds of such city or county, payable on such subscription, at any time when in their opinion the interest of the city or county might be promoted thereby, whether calls had been made or not, on other subscribers.
The first section gives the power to cities and counties to ■ make such subscriptions when desired by their citizens, and it contains no other limitation, except as to amount. To authorize their legally constituted agents to make a subscription, it was under this sectiononly necessary that it should be desired by their citizens, and 'within the limited amount. This section contains no language that can by any rule of interpretation, be held to impose it as a duty, to make such a subscription. It only confers the authority, and provides that they may subscribe for, or purchase stock, under its limitations and restrictions. Neither the context, or the language employed in the first section, makes a subscription imperative, but it is only permissive. And the second and third sections, do not alter or change the provisions of the first. The power conferred by that section, is purely discretionary in the county judges or city council, unless its requirements are changed by the fourth section. •
That section, after providing for the manner of submitting the question of subscription to a vote of the city or county, and prescribing the mode of conducting the election and canvassing the vote thus taken, contains this provision, “ And if a majority of the votes of said county or city, assuming the standard aforesaid, shall be in favor of the same, such authorized subscription or purchase, or any part thereof, shall be made by said judges or Common Council.” The words “ such authorized subscriptions,” necessarily refers to the authority conferred by a majority of the voters, ascertained by the election, provided in this section. The vote resulting in favor of such subscription or purchase, is necessary to authorize the county judges or city council to act, and is a limitation on the discretionary power conferred by the first section; as without such vote, they could not subscribe, whatever might be the desire of the citizens of the county or city. But this provision, only requires them to make the “ authorized subscription or purchase, or any part thereof.” This language is not susceptible of the construction, that when the vote is taken, that they are compelled to subscribe the whole amount proposed by the vote, as it provides that the same or any part thereof, shall be made.' The language clearly requires, that they shall subscribe the amount voted upon, or any part of it, and a subscription of any amount, that they may deem for the best interests of the county or city, will fully answer this requirement. A subscription of one share, would be a part of the sum authorized to be subscribed, and it is within the discretion of the county judges or the city council, whether they will subscribe beyond that amount. If the legislature had intended to make it compulsory upon them to subscribe the whole amount, they would have adopted different language from that employed. There is an evident propriety in giving the financial agents of a county or city, a large discretion in the management of its pecuniary affairs. In the change of circumstances to which railroad enterprises are constantly subjected, to the varying condition of £he finances of the country, the success of rival enterprises, and the want of means to secure success in the construction of railroads, must have dictated the policy adopted by the legislature in leaving it a matter of discretion in the county judges or city council, to subscribe all or any part of the amount authorized. If, immediately after a vote was taken, and resulted in authorizing a subscription, and before the power to subscribe had been exercised, it were to become manifest that the road or any part of it, never could be completed, and the officers to promote private interest, or from a misguided zeal, or over confidence in what might afterwards be accomplished, were determined to push the enterprise, and waste the means of the corporation, the city or county surely ought still to have the means of avoiding the loss, by a power to refuse to make the contemplated subscription. Or, suppose the company, after the vote is had, resulting in favor of subscription, should abandon that portion of the road in which the voters had an interest, and insist upon the issue of the bonds, to be applied on a remote portion, by the completion of which, they could receive no benefit, can it be contended, that there should be no discretion in the financial agents of such municipal corporations to subscribe or not, as the interest of those bodies might require ? It cannot be possible, that after a vote has resulted in favor of subscription, and before it has been made, that no change in the affairs or prospects of the road could occur, which would not release them from the duty of making such subscription. The legislature must have intended to invest the county judges and Common Council, with the discretionary power of imposing conditions to the county or city subscription, so far as it might be necessary to protect their interest, and secure the faithful application of the amount subscribed. If however, the law is- peremptory, and does compel the subscription for the full amount, and leaves the agents of these bodies without any discretion, when the vote has resulted in favor of subscription, any conditions they might impose would have no binding effect, nor would any imposed by the voters be binding. The legislature has given them the control over the stock when issued, and the discretionary power to issue the bonds, whenever the interest of the county or city may in their judgment, require it. Considerations of policy, could not have induced the legislature to withhold a discretion in making such subscriptions, as these powers delegated, are as important as that of making the subscription of the whole or any part of the sum, authorized by a vote. And that the legislature intended to withhold such a discretion we are unable to believe, and until that body shall employ different language from that used in the fourth section of this act, we cannot so hold.
Until the county or city has subscribed, there is no privity between the road, and county or city. It is the contract of subscription which compels the subscriber, for stock, to pay his money, and the company to issue to him, shares of their stock. Until the county subscribes for shares of their stock, the company hold no obligation on the county and cannot by tendering shares of stock, compel them to subscribe or to issue bonds, nor have they any power to compel the road to issue to them shares of their stock. Until the subscription is made it is entirely at the option of the road, whether they will permit such subscription. Before the subscription is made, no obligation exists between the parties. Nor can the vote be treated as an agreement between the county and the road, beyond what the law has peremptorily required to be performed. When the vote was taken and resulted in favor of subscription, it only . amounted to a delegation of power to the supervisors, to .make the contract of subscription, as the law then authorized them to do. The company was no party to this vote, and has .no more right to insist upon the execution of the power thus > delegated, than it would have in case an individual were to • authorize an agent to subscribe for stock in the road and who • should refuse to exercise the power for his principal.
In the case of Fulton County v. The Wabash and Mississippi Railroad Co., 21 Ill R. 338, this court held, that the law did not -authorize the submission of a proposition for subscription of a : gross sum, to two roads, in the same submission, in such a manner that the voter had no option, to vote for the one, and against the other. This submission was made in that manner. It .proposed to subscribe one hundred thousand dollars, one-fourth ■to this, and three-fourths to another road, and the voter, however much in favor of submission to one, and opposed to the other, was compelled to vote either for or against the entire subscription. That case is decisive of this, and we deem it unnecessary to again discuss the question in this case.
We are for these reasons of the opinion, that the relators have failed to show a case by their petition, which entitles them to the relief prayed, and that the demurrer to the return should be sustained to the petition. The writ of mandamus is refused.
Mandamus refused.