The charter of a railroad company in Illinois allowed counties,
&c., to subscribe to the stock of the corporation and issue
bonds in payment, if a majority of voters, at an election called by
the county court, should favor the subscription. The voters of a
county, which had adopted a township organization, voted in favor
of subscribing to the stock at an election called by its board of
supervisors. A subsequent statute relating to the company provides
that
"All elections held for the purpose of voting said stock, and
the manner in which said stock was voted, are hereby legalized in
all respects, and the stock to be subscribed in the manner the same
was voted."
On the authority of this act and the election, the board of
supervisors issued bonds of the county. At this time, a county
court existed in the county. Before the bonds fell due, a statute
was passed authorizing municipal corporations &c. to fund their
bonds, which, in brief, declared that in cases where a county
&c. had issued bonds for subscription to railroad companies
&c., "which are now binding or subsisting legal obligations,"
and "which are properly authorized by law," the county &c.
might, on surrender of such bonds, issue new ones with the
provision that the issue should first be authorized by a vote of
the majority of the legal voters of the county &c. Conformably
to this provision, and pursuant to such a vote, the board of
supervisors issued, in exchange for the old bonds, funding bonds
having a longer period to run and bearing a lower rate of interest.
In a suit against the county by a holder of funding bonds which he
had received in exchange for surrendered bonds,
Held:
1. That the vote of the people at the last election recognized
the original bonds as binding and subsisting obligations, and that
the county is therefore estopped from setting up that they were
invalid because voted for at an election called by the board of
supervisors, instead of by the county court.
2. That where, at an election held according to law, the people
of a county authorized their proper representatives to treat
certain outstanding county obligations as properly authorized by
law for the purpose of settling with the holders, and the
settlement has been made, the validity of the obligations can no
longer be contested.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The Constitution of Illinois, which went into effect April 1,
1848, contained the following:
Page 103 U. S. 746
"ART. VII, SEC. 6. The General Assembly shall provide by a
general law for 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 the said county may be transacted in such manner as the General
Assembly may provide."
Accordingly, in February, 1849, a law was passed authorizing the
township organization of counties and directing that, when such an
organization was adopted, the affairs of the county should be
conducted by a board of supervisors. Counties not under township
organization were managed by county courts.
The Grayville and Mattoon Railroad Company was incorporated Feb.
6, 1857, and on the 1st of March, 1867, its charter was amended so
as to allow counties to subscribe to the stock and issue bonds in
payment if a majority of the voters of the county, at an election
called by the county court, should vote in favor of such a
subscription. The County of Jasper, through which the road of the
company ran, was under township organization, and its board of
supervisors called upon the voters of the county to vote at an
election to be held on the 7th of April, 1868, whether a
subscription of $100,000 should be made to the stock of the company
by the county, payable in bonds of the county, to be issued as the
work progressed, one-sixth of which were to fall due annually from
the time they were put out. The election was held, and resulted in
a majority in favor of the subscription. At a meeting of the board
of supervisors Jan. 23, 1863, the chairman was authorized to
subscribe the stock as soon as it might legally be done. An Act of
the general assembly of the state approved March 27, 1869 (Acts of
1869, vol. iii. p. 360), relating to this company and to votes
which had been taken for subscriptions to its stock, contained the
following as sec. 3:
"That all elections held for the purpose of voting said stock
and the manner in which said stock was voted are hereby legalized
in all respects, and the stock to be subscribed in the manner the
same was voted. "
Page 103 U. S. 747
On the authority of these several acts and this election, the
board of supervisors issued one hundred bonds of $1,000 each, in
the following form:
"Know all men by these presents that the County of Jasper, State
of Illinois, acknowledges itself to be indebted in the sum of one
thousand dollars lawful money of the United States of America,
which said sum of money the said county promises to pay the
Grayville and Mattoon Railroad Company or bearer, at the office of
the county treasurer of said county, on the first day of ___ in the
year of our Lord one thousand eight hundred and ___ with interest
at the rate of ten percentum per annum, which interest shall be
payable on the first day of each year at the office of the
treasurer of said county on the presentation and delivery of the
coupons severally hereto annexed."
"This bond is issued under and by virtue of a law of the State
of Illinois entitled 'An Act to incorporate the Grayville and
Mattoon Railroad Company, passed February 6, 1857,' and amendatory
acts thereto in force March 1st, 1867, and March 27, 1869, in
compliance with a vote of the electors of said county at an
election held April 7, 1868, in accordance with said acts."
"This bond is one of a series limited to one hundred thousand
dollars, one-sixth of the amount made payable annually, at ten
percentum per annum, issued for stock in the Grayville and Mattoon
Railroad Company by the County of Jasper, and placed in trust for
delivery only by the trustee herein named, to-wit, ___ of the
County of Jasper, which shall not become obligatory unless the
certificate indorsed hereon be signed by said trustee."
"The faith of the County of Jasper is hereby pledged for the
payment of the principal sum and interest aforesaid."
"In testimony whereof, the County of Jasper by its chairman of
the board of supervisors of said county and the clerk of the county
court as
ex-officio clerk of said board of supervisors
have subscribed this bond this ___ day of _____ A.D. 187_."
"
County Clerk"
"
Chairman of the Board of Supervisors"
"I hereby certify that this bond is one of a series of bonds
held by me as trustee of the County of Jasper to be delivered to
the Grayville and Mattoon Railroad Company as per order of the
board as stated therein."
"
Trustee"
Page 103 U. S. 748
The bonds fell due, some in 1877 and others in each year
thereafter, until and including the year 1883. It nowhere appears
when the bonds were put in the hands of the trustee, but none of
them bore date prior to Oct. 19, 1876.
At all the times when these several things were done there was
in the County of Jasper a county court as well as a board of
supervisors.
On the 14th of April, 1875, the General Assembly passed an act,
the material part of which is as follows:
"SEC. 1. That in all cases where any county, city, town,
township, school district, or other municipal corporation have
issued bonds or other evidences of indebtedness for money on
account of any subscription to the capital stock of any railroad
company, or on account of or in aid of any public buildings or
other public improvement, or for any other purposes which are now
binding or subsisting legal obligations against any county, city,
town, township, school district, or other municipal corporations,
and remain outstanding and which are properly authorized by law,
the proper authorities of any such county, city, town, township,
school district, or other municipal corporation may upon the
surrender of any such bonds or other evidences of indebtedness, or
any number thereof, issue in place or in lieu thereof to the
holders or owners of the same new bonds, &c. . . . And such new
bonds or other evidences of indebtedness so issued shall show on
their face that they are issued under this act,
provided
that the issue of such new bonds in lieu of such indebtedness shall
first be authorized by a vote of a majority of the legal voters of
such county, city, town, township, school district, or other
municipal corporation, voting either at some annual or special
election of such municipal corporation,
and provided
further that such bonds or other evidences of indebtedness
shall not be issued so as to increase the aggregate indebtedness of
such municipal corporation beyond five percentum on the value of
the taxable property therein, to be ascertained by the last
assessment for State and county taxes prior to the issuing of such
bonds or other evidences of indebtedness."
Acts of 1875, p. 68.
Under the authority of this act, the board of supervisors called
an election of the voters of the county, to be held on the third
day of April, 1877, for the purpose of voting for or against
funding the
"bonds issued to the Grayville and Mattoon Railroad Company for
the sum of $100,000, drawing ten percent
Page 103 U. S. 749
interest; said hundred bonds to be due in twenty years, and
payable at the option of the county in ten years; said bonds to
draw interest not to exceed seven percent per annum, said interest
to be payable semiannually at the treasurer's office in Jasper
County."
At this election a majority of the voters were found to be in
favor of the measure. Afterwards funding bonds were issued in
exchange for old bonds in the following form:
"For value received, the County of Jasper, in the State of
Illinois, promises to pay the bearer one thousand dollars on the
first day of May, A.D. 1897, with interest from date, payable on
the first days of May and November in each year (on surrender of
the annexed coupons), at the rate of seven percent per annum, until
the principal sum shall be paid."
"Principal and interest payable at the county treasurer's
office, in the town of Newton, in said county. The County of Jasper
reserves the right to pay this bond on or at any time after May
1st, 1887, upon giving at said place of payment, and also by an
advertisement in some New York City daily newspaper at least six
(6) months' notice of such intention, and interest shall cease from
the day on which this bond is by such notice made payable."
"This bond is one of a series of bonds numbered from 1 to 100,
inclusive, amounting in all to one hundred thousand dollars, issued
by said County of Jasper, for the purpose of funding legally
incurred indebtedness of the county and under and in accordance
with an Act of the General Assembly of the State of Illinois,
approved April 14th, 1875, entitled"
"An Act to amend an act entitled 'An Act to enable counties,
cities, townships, school districts, and other municipal
corporations to take up and cancel outstanding bonds and other
evidences of indebtedness, and fund the same,'"
"approved and in force March 26, 1872, all provisions of which
act have been duly complied with."
"In testimony whereof, we, the undersigned, officers of Jasper
County, being duly authorized to execute this obligation on its
behalf, have hereunto set out signatures and affixed the county
seal this ___ day of May, A.D. 1877."
"
County Clerk"
"
Chairman"
"[SEAL]"
After these bonds were put out the indebtedness of the county
exceeded somewhat five percent of the value of the taxable
Page 103 U. S. 750
property as ascertained by the last preceding assessment. The
plaintiff below, and defendant in error here, being the owner of
coupons cut from some of the funding bonds falling due in May and
November, 1878 and 1879, which were unpaid, brought this suit to
recover them. He was the holder and in possession of a part or the
whole of the original bonds when the funding took place, and took
the funding bonds in exchange for such of the original bonds as he
then held.
Upon this state of facts the court below gave judgment against
the county. The case is now here by writ of error, and the single
question is presented, whether the county made out a valid defense
to the coupons sued on.
In our opinion the county is estopped from setting up the
alleged invalidity of the original bonds as a defense in this
action. It is true the funding law only authorized the funding of
"binding and subsisting legal obligations," "properly authorized by
law," but no new bonds could be issued in lieu of old ones except
on a vote of the people. All outstanding bonds were not to be taken
up in this way, but only such as were recognized by the people,
acting together in their political capacity at an election for that
purpose, as binding and subsisting legal obligations. After such a
recognition the corporate authorities could make the exchanges, but
not before.
The law under which the original bonds were put out was
sufficient. No complaint is made of any illegality in its
provisions. The only objection is that there was a mistake in
carrying it into execution. The election was called by the wrong
corporate agency. The county court should have brought the people
together and not the board of supervisors. This, if there had been
nothing more, would, under the rulings of the highest court of the
state, made long before the vote was taken, render the bonds
invalid.
Supervisors of Schuyler Co. v. People, 25 Ill.
181. It was for this reason, undoubtedly, that the board of
supervisors, at their meeting after the election, authorized the
subscription to be made and the bonds delivered in payment
as
soon as it might lawfully be done, and that the act to
legalize the election was passed in 1869. We have not had our
attention called to any case in which the courts of the state had
decided, before this funding took place, that under
Page 103 U. S. 751
the Constitution of 1848, an act which simply legalized an
invalid or irregular election for a subscription, and left the
corporate authorities free to make the subscription at their
option, would not cure any defect there may have been in the
election, and empower the proper authorities to bind the county by
anything that might be done under it and within its scope. It had
been decided more than once that the legislature could not compel a
municipal corporation to incur a debt without the consent of the
corporate authorities.
Harward v. St. Clair Drainage Co.,
51 Ill. 130;
Hessler v. Drainage Commissioners, 53
id. 105;
Marshall v. Silliman, 61
id.
218. But under the Constitution of 1848 a vote of the people was
not essential to the validity of a municipal subscription to the
stock of a railroad company. The legislature could authorize the
corporate authorities, whoever they might be, to act in such a
matter without the express direction of the people. What it could
not do was to make it mandatory on them to subscribe without a
vote. This we understand to have been the extent of the decisions,
and in this way it was that, if with the legalization of the vote
there was coupled a command on the corporate authorities to
subscribe, or a confirmation of a subscription already made, the
curative statutes were held to be inoperative. It had never been
held that language, such as was employed in this curative act, was
compulsory, or that it did more than legalize the election, leaving
it for the board of supervisors to determine whether they would
subscribe or not. That was an open question in the state courts
until the case of
Gaddis v. Richland County, 92
id. 119, not decided until June, 1879, two years and more
after the bonds now in question were out.
When, therefore, the people were called on to vote whether the
old bonds should be funded, the facts they had to consider were
these: a valid law authorizing the subscription and an issue of the
bonds had been passed. The people, at an election which had been
irregularly called, had voted to make the subscription and issue
bonds bearing ten percent interest, and all payable within six
years. An act had been passed to legalize the election, and under
it the subscription which had been voted was made, and bonds such
as were contemplated had been issued and were then outstanding in
the hands of various parties.
Page 103 U. S. 752
Whether these bonds were valid was, so far as any direct
decisions were concerned, an open question, and certainly not free
from doubt. Under these circumstances the question was directly put
to the people of the county, in a manner authorized by law, whether
they would recognize these bonds as "binding and subsisting legal
obligations," and issue in lieu of them other bonds having twenty
years to run and bearing seven percent interest instead of ten; and
they by their vote said they would. There is no complaint of any
illegality in this election, or of fraud or imposition. So far as
the record shows, the proposition to fund went from the county
authorities to the bondholders, and not from the bondholders to the
county. The facts were as well known to one party as the other. If
the people intended to rely on their defenses to the old bonds,
then was the time for them to speak and by their vote say they
would not recognize them as binding obligations. By voting the
other way they in effect accepted them as legal and subsisting for
the purposes of the proposed extension of time at reduced interest,
and said to the holders if their proposition was accepted, no
question of illegality would be raised. Their offer having been
accepted, they are now estopped from insisting upon an irregularity
which they have by their votes voluntarily waived, with a full
knowledge of the facts. The case is clearly, as we think, within
the principle acted on by the Supreme Court of the state in
President and Trustees of the Town of Keithsburg v. Frick,
34 Ill. 405. As was very properly said below by the learned circuit
judge, "there must be an end of these contests and defenses some
time or other." There must be a time when the people in their
political capacity are concluded by their contracts as much as
individuals, and we think that where the people of a county, at an
election held according to law, authorize their corporate or
political representatives to treat certain outstanding county
obligations as "properly authorized by law" for the purpose of
negotiating a settlement with the holders, and the settlement which
was contemplated has been made, all contests as to the validity of
the obligations must be considered as ended.
This disposes of all questions as to the excessive issue of
bonds. For all the purposes of this case the original bonds
Page 103 U. S. 753
must be taken as binding. The issue of the funding bonds did not
increase the aggregate of the indebtedness of the corporation, but
only changed its form.
Judgment affirmed.