1. An act of the General Assembly of the State of Illinois
approved March 28, 1869, authorized the Board of Supervisors of
Moultrie County to subscribe to the stock of the Decatur, Sullivan
& Mattoon Railroad Company to an amount not exceeding $80,000
and to issue bonds therefor when the road should be opened for
traffic between the City of Decatur and the Town of Sullivan. In
December, 1869, the board of supervisors ordered that a
subscription to the stock of that company in the sum of $80,000 be
made by the county and that in payment therefor, bonds payable to
said company should be issued and delivered to it when the road
should be so open for traffic. No subscription was actually made on
the books of the company, but its president and clerk entered of
record the resolution of the board of supervisors, and the company,
by a contract made April 15, 1870, appropriated the bonds that
would be received in payment of that subscription. The bonds were
delivered to the company and the road was so open to traffic early
in 1873. By the constitution of the state, which took effect July
2, 1870, counties were prohibited from subscribing to the capital
stock of any railroad or private corporation, or from making
donations to or loaning their credit in aid of such corporations.
Held that whether the action of the board in December,
1860, be in substance and legal effect a subscription, or only an
undertaking to subscribe which was accepted by the company, a valid
contract existed between the county and the company which, when the
new constitution took effect, authorized the subsequent delivery of
the bonds.
2. The board of supervisors, acting under the authority of the
act in question, could bind the county by a resolution which, in
favor of private persons interested therein, might, if so intended,
operate as a contract, and the obligation thereby assumed would
continue in force after July 2, 1870, although the power to enter
into such a contract was after that date withdrawn.
3. The holder of the bonds purchased them before their maturity,
and without notice of any defense. They recite that they are issued
by the county in pursuance of the subscription of the capital stock
of said company, made by the board of supervisors of the county,
December, 1860, in conformity to the provisions of an act of the
general assembly above mentioned. The purchaser was thus assured
that the subscription was made when they had authority to make it,
and it would be tolerating a fraud to permit the county, when
called upon for payment, to set up that it was not made until after
July 2, 1870, when their authority had expired.
Page 92 U. S. 632
4. The Constitution of a state cannot impair the obligation of a
contract, but the Constitution of Illinois declares that the
contracts of bodies corporate shall continue to be as valid as if
it had not been adopted. The power to subscribe carried with it
authority to issue bonds for the sum subscribed, and, the
subscription being valid, the bonds are equally so.
The facts are stated in the opinion of the Court.
MR. JUSTICE STRONG delivered the opinion of the Court.
This case differs very materially from
Town of Concord v.
Portsmouth Savings Bank, supra, p.
92 U. S. 625. We
there held that the bonds were void because the legislative
authority to issue them as a donation to the railroad company had
been annulled by the Constitution of the state before the donation
was made. In the present case, the authority exercised was given to
the county by the Act of March 26, 1869, incorporating the railroad
company. The tenth section of the act was as follows:
"The Board of Supervisors of Moultrie County are hereby
authorized to subscribe to the capital stock of said company, to an
amount not exceeding $80,000, and to issue the bonds of the county
therefor, bearing interest at a rate not exceeding ten percent per
annum, said bonds to be issued in such denominations and to mature
at such times as the board of supervisors may determine,
provided that the same shall not be issued until the said
road shall be opened for traffic between the City of Decatur and
the Town of Sullivan aforesaid."
No approving popular vote was required.
It is not to be doubted that this section gave to the county
complete authority to make a subscription to the capital stock of
the company. The power was fettered by no conditions or
limitations, except as to the amount which might be subscribed; but
the payment of the subscription was directed to be postponed until
the railroad should be opened. And of course, as a greater power
includes every constituent part of it, the legislative act
empowered the board of supervisors to agree to subscribe
Page 92 U. S. 633
preparatory to an actual subscription. The power thus granted
was never revoked, unless it was by the new constitution of the
state, which did not take effect prior to July 2, 1870. Whatever
was done in pursuance of the power before that time, if anything
was, could not be affected by the constitution, subsequently
adopted. Subscriptions, or contracts to subscribe, made in
pursuance of it before it was abrogated, remained binding; for a
constitution can no more impair the obligation of a contract than
ordinary legislation can. It must be conceded, that, had no
subscription been made, or engagement to subscribe entered into,
before the new constitution took effect, none could have been made
after. But the special finding of facts shows that one was made in
1869. On the 16th of December of that year, the board of
supervisors met and informally resolved to subscribe $80,000 to the
capital stock of the railroad company; and the resolutions were
referred to a lawyer, to be put in form before being recorded on
the records of the board. They were accordingly prepared from
minutes furnished by the chairman of the board, and entered by the
clerk upon the records, as of the date of the December meeting of
the board, and duly attested. This must have been done prior to the
first Tuesday in March, 1870. The record, as it appears under date
of Dec. 14, 1869, is as follows:
"And it is further ordered by the Board of Supervisors of
Moultrie County, that, under and by virtue of the authority
conferred upon said board by an Act approved March 26, A.D. 1869,
entitled 'An Act to incorporate the Decatur, Sullivan & Mattoon
Railroad Company,' the County of Moultrie subscribed to the capital
stock of the Decatur, Sullivan & Mattoon Railroad Company the
sum of $80,000 to aid in the construction of a railroad by said
company, in pursuance of their charter."
"And be it further ordered by the board of supervisors aforesaid
that, when said railroad shall be 'open for traffic' between the
City of Decatur and the Town of Sullivan aforesaid, there be issued
$80,000 of the bonds of said county, in denominations of not less
than $500, payable to said company, drawing interest, to be paid
annually, at the rate of eight percent per annum; the principal to
be due and payable ten years after date, or sooner, at the option
of the county, and that said bonds be delivered to said railroad
company in full payment of the subscription of said county so made
as aforesaid. "
Page 92 U. S. 634
It is true, there was no further order of this board to enter
the resolutions of record, but it was the clerk's duty to make the
entry. The substance of them had been adopted. They required no
further action except to put them in form. No further action
appears to have been contemplated. They remain of record still, and
the board has never taken any action to correct the record. On the
contrary, it has been recognized by subsequent action. At the
December meeting of 1872, a special committee was appointed to
examine the records of subscriptions of railroad donations, and
report. The committee did report on the 25th of December, 1872,
that the subscription of $80,000, under the Act of the general
assembly of March 26, 1869, to aid in the construction of the
Decatur, Sullivan & Mattoon Railroad, was in accordance with
law. Under this action of the board, and the report of the
committee, the bonds were delivered. It is impossible, therefore,
to doubt that the resolutions adopted in December, 1869, as
recorded, must be treated as the action of the board at that time.
And if so they amounted to a subscription to the stock of the
company, and created an obligation for the payment of the
subscription in county bonds. It is true no subscription was made
on the books of the railroad company until July, 1871, when one was
made by Mr. Titus, chairman of the board, without any express
authority, and then made for the purpose of enabling him to vote at
an election. But a subscription on the books of the company was
unnecessary, for that which amounted to a subscription had been
made in December, 1869. The authorized body of a municipal
corporation may bind it by an ordinance, which, in favor of private
persons interested therein, may, if so intended, operate as a
contract, or they may bind it by a resolution, or by vote clothe
its officers with power to act for it. The former was the clear
intention in this case. The board clothed no officer with power to
act for it. The resolution to subscribe was its own act; its
immediate subscription.
Western Saving Fund Society v. City of
Philadelphia, 31 Penn.St. 174;
Sacramento v. Kirk, 7
Cal. 419;
Logansport v. Blakemore, 17 Ind. 318. In
Justices of Clarke County Court v. Paris, Winchester &
Kentucky River Turnpike Company, 11 B.Mon. 143, it was ruled
that an order of the county
Page 92 U. S. 635
court, by which it was said the court subscribed, on behalf of
Clarke County, for fifty shares of stock in the turnpike company,
if concurred in by a competent majority of the magistrates, was
itself a subscription, and bound the county. There was no
subscription on the books of the company, but the court of appeals
said,
"We cannot, therefore, regard this order as a mere offer or
pledge to subscribe the fifty shares in this particular road, but
as actually taking, and, in substance and legal effect subscribing
for, that number of shares."
So in
Nugent v. Supervisors of
Putnam County, 19 Wall. 241, it was said, that to
constitute a subscription by a county to stock in a railroad
company, it is not necessary that there be an act of manual
subscribing on the books of the company. These cases lead directly
to the conclusion that the action of the board of supervisors in
December, 1869, was in substance and in legal effect a
subscription.
And if this conclusion could not be reached, it would make but
little difference to the present case, for it could not be doubted
that the action of the board was at least an undertaking to
subscribe, and this was assented to or accepted by the railroad
company. The resolutions were entered of record by the clerk and
president of the railroad company; and the company made an
appropriation of the bonds to be received in payment for the
subscription, by a contract made on the 15th of April, 1870. In
either aspect of the case, therefore, there was an authorized
contract existing between the county and the railroad company when
the new constitution came into operation. No matter whether the
contract was a subscription or an agreement to subscribe, it was
not annulled or impaired by the prohibitions of the constitution.
The delivery of the bonds was no more than performance of the
contract. For these reasons, it is in vain to appeal to the
decisions made in
Aspinwall v. County of
Davies, 22 How. 364, and
Town of Concord v.
Portsmouth Savings Bank, supra, p.
92 U. S. 625. In
neither of those cases was there any contract made before the
authority to make one was annulled. We do not assert that the
constitutional provision did not abrogate the authority of the
board of supervisors to make a subscription for railroad stock. On
the contrary, we think it did. But we hold that contracts made
under the
Page 92 U. S. 636
power while it was in existence were valid contracts, and that
the obligations assumed by them continued after the power to enter
into such contracts was withdrawn. The operation of the
constitution was only prospective. Indeed, it is expressly ordained
in its schedule that
"all rights, actions, prosecutions, claims, and contracts of the
state, individuals, or bodies corporate, shall continue to be as
valid as if this constitution had not been adopted."
It is hardly necessary to say that, under the act of the general
assembly, the authority to make a subscription was coupled with an
authority and a duty to issue county bonds for the sum subscribed.
No action of the board was needed after the subscription was
made.
This disposes of the only material question in the case. There
is, however, another consideration that is worthy of notice. The
findings of the court are, that the plaintiff below is a purchaser
of the bonds for a valuable consideration, having purchased them
before their maturity, and without notice of any defense. They were
executed by the president of the board of supervisors and the
county clerk. They recite that they are issued by the County of
Moultrie,
"in pursuance of the subscription of the sum of $80,000 to the
capital stock of the Decatur, Sullivan & Mattoon Railroad
Company, made by the Board of Supervisors of said County of
Moultrie, in December, A.D. 1869, in conformity to the provisions
of an Act of the General Assembly of the State of Illinois,
approved March 26, A.D. 1869."
Now if it be supposed that the purchaser of bonds with such
recitals was bound to look further and inquire what was the
authority for the issue, where was he to look? Had he looked to the
Act of the general assembly of March 26, 1869, he would have found
plenary authority for a stock subscription, and for the issue of
bonds in payment thereof. If he was bound to know that the
constitutional provision terminated that authority after July 2,
1870, he knew that any subscription made before that time continued
binding, notwithstanding the constitution, and that bonds issued in
payment of it were, therefore, lawful. If, then, he had inquired
whether a subscription had been made before July 2, 1870, at the
only place where inquiry should have been made -- namely, at the
records of the
Page 92 U. S. 637
board -- he would have found an order to subscribe, equivalent
to a subscription made, in December, 1869, corresponding with the
assertions of the recitals, and declared by them to have been a
subscription. He could have made inquiry nowhere else with any
prospect of learning the truth. Every step he could have taken
assured him that the recitals were true. How, then, can the county
be permitted to set up against a
bona fide holder of the
bonds that the authority to make a subscription with all its
legitimate consequences had expired before the subscription was
made, in the face of the recitals and of the county records?
Whether it had expired was a matter of fact, not of law; and it was
peculiarly, if not exclusively, within the knowledge of the board
of supervisors. After having assured a purchaser that their
subscription was made in December, 1869, when they had power to
make it, it would be tolerating a fraud to permit the county to set
up, when called upon for payment, that it was not made until after
July 2, 1870, when their authority expired.
It is unnecessary to say more. Some matters which we have not
noticed were assigned as errors, but they were not mentioned in the
argument, and, in our opinion, they exhibit no error in the court
below.
Judgment affirmed.
MR. JUSTICE MILLER, MR. JUSTICE DAVIS, and MR. JUSTICE FIELD,
dissented.