1. When necessary to determine conflicting rights, courts of
justice will take cognizance of the fractions of a day.
2. The section of the Constitution of Illinois entitled
"Municipal subscriptions to railroads or private corporations"
(
infra, p.
104 U. S.
471), which took effect July 2, 1370, did not invalidate
township bonds, which, pursuant to a vote cast at an election of
the voters of the township lawfully held on that day, before
closing the polls of the general election, were issued to pay a
previously voted donation, that was to be raised by special
tax.
3.
Harter v. Kernochan, 103 U.
S. 562, cited and approved.
This was an action brought by the Portsmouth Savings Bank
against the township of Louisville, Clay County, Illinois, upon
coupons detached from bonds issued Jan. 5, 1871, by the supervisor
and town clerk to the Springfield and Illinois Southeastern Railway
Company, which was formed in February, 1870, by the consolidation
of the Illinois Southeastern Railway Company with the Pana,
Springfield, and Northwestern Railroad Company. The bonds, fifteen
in number, bear date April 1, 1870, and each recites that it
"is one of a series of bonds issued by said township to aid in
the construction of the Illinois Southeastern Railway, in pursuance
of the authority conferred by an act of the General Assembly of the
State of Illinois, entitled 'An Act to incorporate the Illinois
Southeastern Railway Company,' approved Feb. 25, 1867, and an act
amendatory thereof, approved Feb. 24, 1869, and an election of the
legal voters of the aforesaid township, held on the tenth day of
November, 1868, under the provisions of said act."
The inhabitants, legal voters of the township, pursuant to
notice, duly and lawfully issued, met July 2, 1870, at 9 A.M., for
the purpose of deciding by vote
"whether a special tax be levied for the payment of the sum of
$15,000, donated by said town to the Illinois Southeastern Railway
Company, or that bonds be issued for the payment of said
donation."
Fifty-two votes were cast for bonds and two for a special
tax.
Page 104 U. S. 470
The supervisor filed, Jan. 9, 1871, the requisite sworn
certificate of that date with the state auditor, who thereupon
registered in his office the bonds, each being for $1,000. The
bonds were delivered to the company after the first coupon had been
cut from each and destroyed. The plaintiff was a
bona fide
holder for value of them without notice of anything impairing their
validity other than what appears upon the face of them, or in the
Constitution and laws of Illinois. The remaining facts are stated
in the opinion of the court. Judgment was rendered for the
plaintiff, and the township sued out this writ of error.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The bonds in question contain the same recitals as those of
Harter Township in the same county, the validity of which was
determined in
Harter v. Kernochan, 103 U.
S. 562. The same questions which arose on the validity,
construction, and scope of the enactments under which they were
issued, and delivered to the consolidated company, are now
presented for determination. We perceive no reason for withdrawing
or qualifying the conclusions we then announced.
There is, however, one question of some importance which did not
then arise. It appeared in that case that the election held under
the act of Feb. 25, 1867, on Nov. 10, 1868 -- at which the township
voted a donation to be raised by special tax, payable in three
equal annual installments -- was supplemented by another, held,
under the authority of the amendatory act, on the twentieth day of
May, 1870, at which Harter Township directed bonds to be issued in
payment of its donation previously voted. In the present case,
while the election at which the township of Louisville voted a
similar donation, to be raised by like special tax, was also held
on the 10th of November, 1868, the one at which the township voted
to issue bonds in payment of such donation was not held until the
2d of July, 1870. On the day last named the people of Illinois
voted in favor of the adoption of a new constitution. The second of
the additional sections, which is
Page 104 U. S. 471
entitled "Municipal subscriptions to railroads or private
corporations," was separately submitted, and is in these words:
"No county, city, town, township, or other municipality shall
ever become a subscriber to the capital stock of any railroad or
private corporation, or make donation to or loan its credit in aid
of any such corporation,
provided, however, that the
adoption of this article shall not be construed as affecting the
right of any such municipality to make such subscriptions where the
same have been authorized, under existing laws, by a vote of the
people of such municipalities prior to such adoption."
In
Town of Concord v. Portsmouth Savings Bank,
92 U. S. 625, we
held that donations by counties or other municipalities in Illinois
to railroad companies could not lawfully be made after July 2,
1870, though authorized by a statute enacted and a popular vote
cast before the adoption of the Constitution. This ruling was made
in ignorance of the fact, to which our attention was not at the
time called, that the Supreme Court of Illinois had, in an
unreported case, decided that the intention of the framers of the
Constitution was not to prohibit donations authorized under
preexisting laws by a vote of the people prior to the adoption of
that instrument, but to place subscriptions and donations on the
same footing. Consequently, in
Fairfield v. County of
Gallatin, 100 U. S. 47, the
ruling was modified, and the construction placed upon the organic
law of Illinois by its highest court accepted and enforced. It may
therefore be regarded as the settled law of Illinois that its
constitution recognized as binding donations, as well as
subscriptions, by a township in aid of a railroad corporation,
which were authorized, under existing laws, by a vote of the people
prior to the adoption of that instrument.
We have seen that the people of Louisville Township did, prior
to the adoption of the Constitution of 1870, vote in aid of this
railroad enterprise a donation to be raised by special tax, for a
limited period. That donation was, beyond question, unaffected by
the constitutional provision prohibiting municipal aid to railroads
or private corporations. When that instrument was adopted the
township had ample authority, conferred by the vote of the people,
to raise by special tax a specific amount to be donated for the
purpose indicated.
Page 104 U. S. 472
But the argument, on behalf of the plaintiff in error, proceeds
upon these grounds: that this is not a suit to enforce the levy of
a special tax in payment of the donation voted Nov. 10, 1868, but a
suit on the bonds voted on the second day of July, 1870; that by
the settled course of decisions in the Supreme Court of Illinois
the township officers could not legally issue bonds in payment of a
donation, previously voted to be raised by special tax, without the
consent of the people expressed at an election duly called and held
for the purpose of determining that question; that no election
could confer authority to issue bonds unless held before the
section of the constitution which we have mentioned took effect;
that the section having been adopted by popular vote on the 2d of
July, 1870, was in operation from the first moment of that day, and
that consequently the township election held on the same day was,
in view of the constitutional inhibition, unavailing to confer
authority to substitute a donation of interest-bearing bonds
maturing many years after date, for a donation to be satisfied by a
special annual tax for three years. In other words, that a popular
vote authorizing an issue of bonds, in order to escape that
inhibition, must have been cast prior to the day on which the
Constitution was adopted.
Passing by, as unnecessary for determination, the propositions
embodied in the first branch of this argument, and conceding them
for the purposes of this case to be correct, we proceed to inquire
as to the time when the Constitution of 1870, including that
section, became the fundamental law of the state, and what effect
it had on the township election held on the 2d of July of that
year.
At what precise hour on that day the constitution was adopted by
popular vote cannot be stated. But we know that it could not have
occurred before sunset, since the schedule, providing for the
submission of the constitution to the popular vote, expressly
required the polls to be kept open for the reception of ballots
until that hour. Nor are we able to ascertain, from the record, the
exact moment when the township voted in favor of the issue of these
bonds. The town meeting to determine whether they should be issued,
in lieu of a special tax, was to be held at nine o'clock in the
forenoon; it was so
Page 104 U. S. 473
held, and only fifty-four votes were cast, of which fifty-two
were in favor of the issue. The presumption may therefore be fairly
indulged that the township had, in fact, voted for issuing bonds
before the close of the general election, on the same day at which
the people of the state voted on the adoption of the particular
sections of the constitution, separately submitted, which relates
to municipal subscriptions to railroads and private
corporations.
The schedule provided that if a majority of the votes polled
were for the constitution, so much of it as was not separately
submitted should be the supreme law of the state on and after Aug.
8, 1870. The Supreme Court of Illinois, in
Schall v.
Bowman, 62 Ill. 321, declared that although the result of the
election could not have been officially ascertained and declared
before the expiration of some weeks thereafter, the provision
relating to municipal aid to railroad corporations
"was so framed that it could, appropriately and effectually,
become a part of the organic law, without the disturbance of any of
its elements, and was a declaration of the people on the second day
of July, 1870, that from and after that day, no matter what may
become of the new constitution no county, city, town, township, or
other municipality shall ever become subscriber to the capital
stock of any railroad or private corporation, or make donations to,
or loan its credit in aid of, such corporation."
Further, in the same case it was said:
"We are unable to find anything in the constitution itself, or
in the schedule thereto, militating against the view we have taken,
that this separate article of the Constitution of 1870 went into
full effect on the day of its adoption by a vote of the people;
that is, on the second day of July, 1870. There is no provision of
the constitution requiring a different construction."
The subscription, the validity of which was there involved, we
remark in passing was made in pursuance of a municipal election
held on the third day of August, 1870.
The next case was
Richards v. Donagho, 66
id.
73. It related to a proposed municipal subscription in pursuance of
an election called July 12, 1870, and held Aug. 2, 1870. The court
adhered to the decision in
Schall v. Bowman. The remaining
case to which our attention has been called is
Wright v.
Bishop,
Page 104 U. S. 474
88
id. 302. There the vote for an issue of bonds was
given at an election held on the second day of August, 1870. The
court, referring to the preceding cases, said:
"This, we have held, was too late. The clause in the
constitution containing the prohibition against municipal
subscriptions or donations in aid of railroad companies and other
private corporations, took effect on the second day of July, 1870,
and all such subscriptions or donations, not authorized by a vote
of the municipality, prior to that time, are void."
It is thus seen that he cases related to an election held in the
month of August, 1870. Neither of them involved the validity of a
subscription or a donation made in pursuance of an election held on
the 2d of July, 1870, and consequently that learned tribunal has
not indicated its opinion as to whether the constitutional
inhibition forbade a municipal subscription or donation, in
pursuance of an election held on the very day of the adoption of
the Constitution. It is true that the court, in
Wright v.
Bishop, after saying that the provisions in question "took
effect on the 2d of July, 1870," remarked that "all such
subscriptions or donations, not authorized by a vote of the
municipality, prior to that time, are void." But that language must
be interpreted with reference to the facts of the particular case
presented for judicial determination. It is not clear that the
phrase, "prior to that time," was intended to refer to the day on
which the constitutional provision took effect, as distinguished
from the precise moment of its adoption by the popular vote. The
case involved no such question.
We are justified in so interpreting the decision in
Wright
v. Bishop by what was said in
Grosvenor v. Magill, 37
id. 239, the doctrines of which have not, so far as we are
able to find, been modified by any subsequent ruling of that court.
The question involved was whether the law regards fractions of a
day. The court, speaking by Mr. Justice Lawrence, said:
"It is true that for many purposes the law knows no division of
a day, but whenever it becomes important to the ends of justice, or
in order to decide upon conflicting interests, the law will look
into fractions of a day, as readily as into the fractions of any
other unit of time. 2 Bl.Com. 140, notes. The rule is purely
Page 104 U. S. 475
one of convenience, which must give way whenever the rights of
parties require it. There is no indivisible unity about a day which
forbids us, in legal proceedings, to consider its component hours,
any more than about a month, which restrains us from regarding its
constituent days. The law is not made of such unreasonable and
arbitrary rules."
The views expressed in the last case are consistent with sound
reason and public policy. They accord with our own judgment, and
are in line with the settled course of decisions in other
courts.
In
Arnold v. United
states, 9 Cranch 104, it was declared to be the
general rule that where computation is to be made from an act done,
the day on which the act is to be done should be included. Hence,
an act of Congress, imposing additional duties to be levied and
collected upon all goods imported from and after its passage, was
adjudged to be in force on the day of its approval by the
President. And, upon the principle that the law will not take
cognizance of fractions of a day, it has been said in some cases
that a statute is operative from the first moment of the day on
which it takes effect. But to these general rules there are
established exceptions, as an examination of adjudged cases and
elementary treatises will show.
Mr. Justice Story has discussed this question with fullness in
In the Matter of Joseph Richardson, 2 Story 571. By an act
approved March 3, 1843, the statute establishing a uniform system
of bankruptcy throughout the United states, approved Aug. 19, 1841,
was repealed. But it contained a proviso that the act should not
affect any cause or proceeding in bankruptcy commenced before its
passage, or any pains, penalties, or forfeitures incurred under
said act, but that "every such proceeding might be continued to its
final consummation," in like manner as if that act had not passed.
A petition in bankruptcy was filed by Richardson on the 3d of
March, 1843, and the question arose whether it was cut off by the
repealing act approved on the same day.
It appeared that the petition was filed about noon, while the
repealing act was not, in fact, approved by the President until
late in the evening of the same day, several hours after the
Page 104 U. S. 476
filing of the petition. It was ruled, upon the case presented,
that the act of Congress should be held to have taken effect only
from the act of approval by the President, and not by relation from
the commencement of the day on which such approval was given. After
a review of the English decisions, the court said:
"So that we see that there is no ground of authority, and
certainly there is no reason to assert that any such general rule
prevails, as that the law does not allow of fractions of a day. On
the contrary, common sense and common justice equally sustain the
propriety of allowing fractions of a day, whenever it will promote
the purposes of substantial justice."
In
Lapeyre v. United
states, 17 Wall. 191, it was said that an act of
Congress, unless it is otherwise declared by law, becomes operative
from the first moment of the day of its passage; and further that
"fractions of the day are not recognized," and "an inquiry
involving that subject is inadmissible." In reference to that case
we remark, that the question presented for determination was not as
to fractions of a day, but whether a proclamation of the President,
bearing date June 24, 1865, took effect on that day or on the 27th
of June, 1865, when it was first promulgated by publication in the
newspapers. That case did not require a determination of the
question of law now before us. The language quoted from the opinion
must therefore be taken as a declaration of the general rule which
obtains when the evidence does not show the necessity of regarding
fractions of a day.
In
United states v. North, 97 U. S.
164, the Court, while declaring, upon the authority of
Lapeyre v. United states, that the President's
proclamation of June 13, 1865, removing all restrictions upon
internal, domestic, and coastwise intercourse and trade, took
effect as of the beginning of June 13, 1865, and covered all the
transactions of that day to which it was applicable, said: "We do
not think this is a case in which fractions of a day should be
taken into account." This language of the Chief Justice clearly
implies that there were cases in which the court would regard
fractions of a day. Besides, there was no question in that case,
nor any proof made, as to the particular hour of the day when the
proclamation of the President was issued.
Page 104 U. S. 477
At the same term,
Burgess v. Salmon, 97 U. S.
381, was decided. An act of Congress increased the tax
on tobacco from twenty to twenty-four cents per pound, but
contained a proviso that the increased tax should not apply to
tobacco "on which the tax under existing laws shall have been paid
when this [that] act takes effect." It was approved on the
afternoon of March 3, 1875, while the tobacco of Salmon was
stamped, sold, and removed for consumption or use from the place of
manufacture in the forenoon of the same day. It was ruled that the
court could inquire as to the time of the day when the President
approved the act, and that
"the time of such approval points out the earliest possible
moment at which it could become a law, or, in the words of the act
of March 3, 1875, at which it could take effect."
It was, consequently, adjudged that the tobacco was not subject
to the increased tax imposed by a statute which was not in fact
approved, and did not take effect, until after the removal, on the
same day, of the tobacco. In that case, the parties agreed as to
the respective hours of the day when the tobacco was in fact
stamped and removed, and when the act was approved by the
President. But such an agreement could not have authorized an
inquiry into fractions of a day, unless such inquiry were
permissible by the established rules of law.
The cases in the state courts bearing upon this question, and
taking substantially the same view, are numerous. We refer to only
two of them. In
Kennedy v. Palmer, 6 Gray (Mass.) 316, the
question was as to the jurisdiction of a justice of the peace of a
particular county to hear and determine an action, commenced May 7,
1865, on which day the governor of the state approved an act, by
which the exclusive jurisdiction of all such actions, "not already
pending," was vested in a police court thereby established, the act
providing that it should take effect from and after its passage.
The evidence did not show either the hour of the day when the
action was commenced, nor the hour when the governor approved the
act. The court adjudged that the justice had jurisdiction until the
precise point of time when the act was approved, and thus became a
law, and that since it did not appear that the suit was instituted
after the approval of the act, it must be treated
Page 104 U. S. 478
as one pending at the passage of the act, and therefore as
unaffected by its provisions.
The other case is
People v. Clark, 1 Cal. 406. The
facts of that case were these: Clark was elected county judge at an
election regularly appointed and held. On that day, the legislature
passed an act repealing the one by virtue of which the election was
held, and conferring upon the governor the power of appointment.
The repealing act was approved the same day, but at what hour of
the day did not appear. Some days thereafter the relator was, by
the governor, appointed county judge. The court sustained the
validity of the election, remarking that
"the time of the approval of the executive is a fact which can
be ascertained and proven, and in all cases, where the rights of
parties are in any manner to be affected by the time of the
approval, an investigation of the question, when he event -- the
passage of the act -- occurred, should be had."
There are decisions in the English courts to the same effect. In
Roe d. Wrangham v. Hersey, 3 Wils. 274, the court
characterized, as a mere fiction of law, the general proposition
that there were no fractions of a day; that
"by fiction of law, the whole time of the assizes and the whole
session of Parliament may be, and sometimes are, considered as one
day; yet the matter of fact shall overturn the fiction in order to
do justice between the parties."
Fictio cedit veritati; fictio juris non est ubi
veritas. In
Combe v. Pitt, 3 Burr. 1423, 1434, Lord
Mansfield expressed similar views. He said:
"But though the law does not, in general, allow of the fraction
of a day, yet it admits it in cases where it is necessary to
distinguish. And I do not see why the very hour of the day may not
be so too, when it is necessary and can be done, for it is not like
a mathematical point, which cannot be divided."
In view of the authorities, it cannot be doubted that the courts
may, when substantial justice requires it, ascertain the precise
hour when a statute took effect by the approval of the executive.
But it may be argued that the rule does not apply where the inquiry
is as to the time when constitutional provisions became operative
by popular vote; that a popular vote, given at an election covering
many hours of the same day, should be deemed one indivisible act,
effectual, by relation,
Page 104 U. S. 479
from the moment the electors entered upon the performance of
that act, to-wit, from the opening of the polls. But we are of
opinion that no such distinction can be maintained. In determining
when a statute took effect no account is taken of the time it
received the sanction of the two branches of the legislative
department, which sanction is as essential to the validity of the
statute as the approval of the executive. We look to the final act
of approval by the executive to find when the statute took effect,
and, when necessary, inquire as to the hour of the day when that
approval was, in fact, given. So in ascertaining when a
constitutional provision was adopted, we perceive no sound reason
why the courts may not, in proper cases, inquire as to the hour
when such approval became effectual, to-wit, as to the time when,
by the closing of the polls, the people had adopted such provision.
In this case all difficulty is removed by the fact, made certain by
the schedule to the constitution requiring the polls to be kept
open until a certain hour of the day of election. That fact should
not be disregarded or ignored in ascertaining when the
constitutional provision was adopted, especially since it expressly
saved the obligations and rights of the municipalities which had,
before its adoption, under the authority of pre-existing laws,
voted subscriptions or donations.
We are of opinion that within the fair meaning of the state
constitution, the township election of the 2d of July, 1870, was
held prior to the adoption of the section forbidding municipal
subscriptions or donations in aid of railroad corporations, and
under the authority of valid enactments in force when such election
was held. The bonds the coupons of which are in suit were
consequently unaffected by the prohibitions of the state
constitution. All other material objections to their validity have
been considered and overruled in
Harter v. Kernochan.
Judgment affirmed.