1. The charter of the Kankakee and Illinois River Railroad
Company does not limit the operation and effect of the general laws
of Illinois, which confer power upon counties to subscribe for
stock in railroad companies and issue bonds in payment
therefor.
2. The County of Kankakee, in that state, having been organized
under the Act of April 1, 1851, to provide for township
organization, it was the duty of its board of supervisors to
discharge the duties enjoined by the general laws upon the county
courts in those counties which did not adopt that organization.
3. The bonds issued by that board to pay for the subscription to
the stock of that company are valid obligations of the county.
The case is stated in the opinion of the Court.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
The judgment sought to be reviewed by this writ of error was
rendered upon coupons attached to municipal bonds purporting to be
issued by the plaintiff in error. The cause was tried by the court
without the intervention of a jury, and the facts appear in a bill
of exceptions. Each bond of the issue contains a recital that
it
"is issued under and pursuant to orders of the Board of
Supervisors of Kankakee County, Illinois, for subscription to the
capital stock of the Kankakee and Illinois River Railroad Company,
as authorized by virtue of the laws of the State of Illinois
authorizing cities and counties to subscribe capital stock to aid
and
Page 106 U. S. 669
construct railroads; also in accordance with the provisions of
an act of said State of Illinois entitled 'An act to fund and
provide for paying the railroad debt of counties, townships,
cities, and towns,' in force April 16, A.D. 1869."
The bonds were sealed with the county seal, signed by the
chairman of the board of supervisors, and countersigned by the
clerk of the county court, under the order of the board of
supervisors of the county September 20, 1870.
The defendant in error is a
bona fide holder for value,
having purchased before due in the open market, and without notice
of any defense.
The defense made, however, and overruled in the court below, is
matter of law, and alleges that the bonds are void, in whosesoever
hands, first because the county had no power under the law to issue
them at all, and second because they were issued by the board of
supervisors of the county, who were not representatives of the
county empowered to bind it.
Section 16 of the charter of the Kankakee and Illinois River
Railroad Company, in force April 15, 1869, contained a provision
that
"To further aid in the construction of said railroad, townships,
corporate towns, and cities on or along the line of said railroad
may subscribe to the capital stock of said company in sums not
exceeding one hundred thousand dollars, respectively"
if such subscription shall have been authorized by a majority of
the legal voters at an election called and held for that purpose.
In that event, bonds of such township, corporate town, or city
should be issued in payment thereof to the railroad company. Sec.
17 of the same act declares that
"Nothing herein contained shall prevent counties and cities from
taking and voting for subscriptions in the stock of said company,
under the general laws of the state."
The general laws of the state referred to include "An act
supplemental to an act entitled
An act to provide for a general
system of railroad incorporations,'" which took effect November 8,
1849. Laws 1849, 2d Sess., p. 33. That statute authorizes every
county in the state to subscribe for stock in any railroad company,
already or thereafter to be organized or incorporated, to the
extent of $100,000, and, for the payment of
Page 106 U. S.
670
the same, expressly empowers the judges of the county court
to borrow money at a rate of interest not exceeding ten percent per
annum and to pledge the faith of the county for the annual payment
of the interest and the ultimate redemption of the principal, or if
the judges of the county court should deem it most advisable, they
are authorized to pay for such subscription in bonds of the county,
bearing interest not exceeding the rate aforesaid, and the railroad
company are also authorized, by a separate section of the act, to
receive such bonds in payment of such subscriptions.
The contention now is, on the part of the plaintiff in error,
that the language quoted from the seventeenth section of the
charter of the Kankakee and Illinois River Railroad Company is a
reservation merely of the power given by the general laws of the
state to counties to subscribe for stock, and as the power to issue
bonds in payment therefor is a distinct power, it is not included
in the reservation, and therefore ceased to exist on the passage of
the act, so far as the present transaction is concerned.
But the obvious meaning of the clause relied on to accomplish
that result is merely that the general laws of the state
authorizing counties to subscribe for stock in that railroad
company shall remain unaffected by the charter, which conferred
similar power on townships, corporate towns, and cities on the line
of the road, and not in any manner to limit the operation and
application of those general laws upon the subject. The very
purpose of the proviso seems to us to have been to exclude the very
conclusion now sought to be drawn from it. Indeed, if the argument
be good for anything at all, it results that, under the operation
of this reservation, the naked power to subscribe for stock remains
in the counties, without any authority, and therefore without any
obligation, to pay for it, for if the power to issue bonds is taken
away, so also is the power to pledge the faith of the county for
the annual payment of the interest and the ultimate redemption of
the principal -- a pledge which means, of course, that payment
shall be made out of the revenues of the county derived from
taxation.
As such a construction of law confesses its own absurdity, it is
not necessary to make any formal refutation of it.
It is further contended on the part of the plaintiff in
error
Page 106 U. S. 671
that if at the date of these bonds, Kankakee County had
corporate power to execute and issue them, it could only be done by
the county court, according to the terms of the statute conferring
that power. Such in fact is the language of the general law of
1849, from which the power is derived. But the County of Kankakee,
it is admitted, was organized under the act to provide for township
organization of April 1, 1851. Laws 1851, p. 35. Under that mode of
organization the corporate powers of counties, otherwise exercised
by the judges of the county court, are devolved upon a board of
supervisors, such as, in the present instance, executed and issued
the bonds in question. Article 15, sec. 4, of that act declares
that
"The powers of a county as a body politic can only be exercised
by the board of supervisors thereof, or in pursuance of a
resolution by them adopted."
And art. 16, sec. 4, provides that
"The board of supervisors of each county in this state shall
have power at their annual meetings, or at any other meeting, . . .
to perform all other duties not inconsistent with this act which
may be required of or enjoined on them by any law of this state to
the county courts."
In
Green v. Wardwell, 17 Ill. 278, it was said that the
board of supervisors were the legal successors to the county
commissioners' court, as had been previously decided in
People
v. Thurber, 13 Ill. 554. In
Prettyman v. Supervisors of
Tazewell County, 19 Ill. 406, the very point here raised was
decided, and it was held that under the act of 1851, it was the
duty of the board of supervisors to act instead of the county court
in calling an election to vote on the question, in making the
subscription for the stock, and in issuing county bonds in payment
therefor. The Act of April 1, 1861, "to reduce the act to provide
for township organization and the several acts amendatory thereof
into one act, and to amend the same" (Session Laws of Illinois,
1861, pp. 216-237), removes all doubt on the subject. It confers
(art. 14 sec. 6, cl. 8) upon the board of supervisors authority
"to perform all other duties, not inconsistent with this act,
which may be required of or enjoined on them by any law of this
state,
or which are enjoined upon county courts, when holding
terms for the transaction of county business in those counties not
adopting township organization."
This act was in
Page 106 U. S. 672
force when the bonds sued upon in this case were issued, and
they are governed by it. The case of
Gaddis v. Richland
County, 92 Ill. 119, relied upon by counsel for plaintiff in
error in this point, is not inconsistent with this result in the
present case, because that decision is based on the words of the
charter of the railroad company conferring the authority to
subscribe to its capital stock, which, in the opinion of the court,
expressly limited the exercise of the power to the county court.
The same comment may be made upon the case of
Supervisors of
Schuyler Co. v. People ex Rel. Rock Island & Alton Railroad
Co., 25 Ill. 181.
We find no error in the record, and the judgment of the circuit
court is accordingly
Affirmed.