| Ill. | Jan 15, 1862
The election, to determine whether the county would become a subscriber to the two roads, was ordered by both the board of supervisors and the County Court. These orders were made more than thirty days before the time fixed for the election, and under them, notice was given and the election held, resulting in a majority in favor of subscription. Afterwards the board of supervisors directed, by an order entered of record, that the bonds should issue, and that J. M. Ferris should, as county judge, sign and execute the same. This he did, in pursuance to the order. It is now insisted, that inasmuch as the hoard of supervisors alone had the power to order the election, and to issue and deliver the bonds, that when issued by the County Court they were illegal and void. That as the board of supervisors were exercising a delegated authority, they were bound to pursue it strictly, and were powerless to appoint an agent to exercise that power. This is manifestly the rule, and if in this case it has been violated, the bonds are necessarily void.
All collective bodies, from the very nature of things, are to some extent compelled to employ agents, to record their resolutions, and to preserve the manifestations of their intentions. When they enter into contracts, or execute instruments of any description, where they are composed of large numbers, as a matter of convenience, if not from absolute necessity, they are compelled to designate a single individual to act on behalf of the body. The numerous signatures, if all were to sign an instrument, would occasion inconvenience and delay in executing an agreement. . The body therefore must, generally by an order entered upon its records,' designate some person to act on its behalf. He may be a member of their own body, or a person unconnected with the organization. This case illustrates the inconvenience of requiring each member of the board to sign the several bonds and coupons.
The board had ordered the election, canvassed the vote, decided that a majority had determined upon subscription, and had resolved, that the county would take the stock and issue the bonds. In all this they were exercising a power delegated by the General Assembly, and this power they could not have delegated to any other person or tribunal. Its exercise was confided to them alone, and they only could execute it legally. But after performing all these acts did they delegate any power, by their entering of record, that the bonds should issue to pay the county subscription, and requiring them to be signed by the county judge ? ‘ This they might by resolution have required of their presiding officer, any member of the board, or of their clerk.
The law has failed to prescribe the mode of executing these bonds, or to designate any person who shall sign them. And in the absence of such a requirement, they, we think, had the unquestionable right, by order of the board duly passed, to authorize any person they might choose, to sign the instruments, to manifest their intention of completing the act. This was not properly an exercise of power, but was simply a mode of manifesting the fact that the power had been exercised by the board. We are, for these reasons, of the opinion that this objection is not well taken.
It is also insisted, that this question, whether the county would subscribe to these roads, was improperly submitted to a vote of the county. As submitted, the electors were required to vote for or against the subscription, or a gross sum, to be taken in equal parts in two different roads. We have held, on an application to restrain a county from issuing bonds, that it is illegal to submit two separate propositions in such a manner as that each may not be voted upon separately. Fulton County v. Miss. & Wabash R.R., 21 Ill. 373. It was also held, on an application for a mandamus, to compel the issuing of bonds, to pay for a subscription thus voted, that the relief could not be granted. The People ex rel. v. The County of Tazewell, 22 Ill. 147" date_filed="1859-04-15" court="Ill." case_name="People v. County of Tazewell">22 Ill. 147. It is true, in this latter case, that was only one of several grounds, upon which the application was refused, but the doctrine announced was recognized.
The case under consideration presents the question, whether bonds issued under such a vote, and in the hands of innocent holders, are void, or are only voidable, and may be ratified by subsequent acts of the county, acting through its constituted authorities. And if capable of being ratified, whether any act has been done, having that effect. If an election were held without warrant of law, or if it were ordered by a person or tribunal having no authority, there could be no doubt that the whole proceeding would be absolutely void. Such an election, and every subsequent step, would he unauthorized arid void, and therefore incapable of ratification by the county authorities. But an election held under the authority of an order by the propér authorities, and in the main conforming to the requirements of the statute, but wanting in some particular not essential to the power to hold an election, and acquiesced in by the people, and approved by their agents, the county authorities, would render bonds thus issued binding, when in the hands of innocent holders.
The objection to submitting two separate propositions, to subscribe for stock, in such a manner as the voter has no choice, but to vote for or against both propositions, may operate as a fraud upon the voters of the county. And when the issue of the bonds is resisted, they cannot be executed and delivered. In this case the election was ordered by the proper tribunal, it was held at the time and in the manner required by law, and for aught that appears, was in all things, except the submission of the proposition to take stock to the amount of the gross sum in the two roads, strictly legal. The people acquiesced in the election, the ■ board of supervisors issued and delivered the bonds, and afterwards paid some installments of interest. Now in this case there was no want of authority to order the election, but simply an erroneous mode of submitting the questions. And we have no hesitation in saying, that it was such a deviation from the correct mode as may be rendered valid by subsequent acts, so as to protect the rights of third parties, which may have been subsequently acquired. Had the proceedings been instituted by any citizen of the county, to restrain the issue of these bonds, the relief would have been granted. But when they have been issued, and purchased in market, and have passed into the hands of bona fide holders, good faith, justice, and every principle of fairness, require that these bonds should not be held invalid, for any but the most weighty reasons.
In the case of Johnson v. Stark County, 24 Ill. 15, this court held, that if the irregularity was only such as to avoid the liability, upon the grounds of a non-compliance with the law in holding the election, it must be insisted upon before the rights of third persons have intervened. That when such are the grounds of objection, the want of action by the tax-payer to restrain their being issued, and a ratification by the county authorities, either in express terms or by acts of recognition of their validity, waives the right to object against the interests of third persons. In this case, the citizens of the county acquiesced in the issue and sale of the bonds, and the supervisors levied and collected taxes, with which several installments of interest were paid, before any resistance was made to the legality of the bonds. These acts clearly evince a recognition of their validity on the part of the county.
This case does not, as it seemed to be supposed, fall within the principle announced in the case of Schuyler County v. The People, 25 Ill. 185, as in that case, there was no authority to order the election by the body assuming the act. But this irregularity only being such as would prevent the bonds from being issued, and not sufficient to render them void, when thrown into the market, we must hold that these bonds are valid, and binding upon the county. And that the court below erred in rendering judgment in favor of the defendants, which is reversed, and the cause remanded.
Judgment reversed.