| Ill. | Nov 14, 1885
delivered the opinion of the Court:
The suit is one of importance, and its prosecution and defence, if conducted to a final hearing,.must be attended with heavy expenses in attorneys’ fees and in court costs. It is therefore more than a matter of form to the tax-payers of the town that it shall only be commenced and prosecuted at their expense by lawful authority. If the suit was commenced without authority, the action of the court in dismissing it was proper. Frye v. Calhoun County, 14 Ill. 132" date_filed="1852-12-15" court="Ill." case_name="Administrators & Heirs of Frye v. County of Calhoun">14 Ill. 132.
Under our system of township organization there is no officer or board representing the -corporate authority of the town. The electors, only, represent it, and they, in doing so, must and do necessarily act, through town meetings or town elections.. (Williams v. Town of Roberts, 88 Ill. 22.) There, can therefore be no implied authority in the supervisor or the town auditors to represent the town in its corporate capacity. If, in a given case, they or either are authorized to do so, it is by virtue of some statute, and that statute is the measure of their authority.
By section 2, article 4, chapter 139, of the Eevised Statutes of 1874, every town has corporate capacity to sue and be sued; and by section 3 of the same article, the electors present at the annual town meeting have power to direct the raising of money by taxation for the prosecution or defence of suits by or against the town, or in which it is interested; and also to provide for the institution, defence or disposition of suits at law or in equity, in all controversies between the town and any other town, or any individual or corporation, in which the town is interested. The only power, in this respect, given -to the supervisor, will be found in section 3, article 11, of the same chapter,-and is this: “He shall prosecute, in the name of his town, or otherwise, as' may be necessary, for all penalties or forfeitures given by law to such town or for its use, and for which no other officer is specially directed to prosecute, except as may be otherwise directed by the town meeting. ” It is not claimed, nor could it be, reasonably, by counsel, that this section meets the case. • Nor does counsel claim the existence of any other section conferring the specific .power upon the supervisor, or upon the town auditors, essential to the commencement and prosecution of this suit. No provision of the statute authorizes the town auditors, individually or collectively, to cause such suits to be commenced or prosecuted. As a board their functions are limited to examining and auditing the accounts of the supervisor, overseer of the poor and- overseer of the highways of such town, and all charges and claims against their town, and the compensation of town officers, etc. Rev. Stat. sec. 4, art. 13, ut supra.
Cooper v. Town of Delavan, 61 Ill. 96" date_filed="1871-09-15" court="Ill." case_name="Cooper v. Town of Delavan">61 Ill. 96, was decided under a provision of the statute, whtich was not retained in the revision of 1874, to the effect that whenever any suit or proceedings shall be commenced against the town, it shall be the duty of the supervisor to attend to the defence thereof, and to lay before the electors of the town, at the first town meeting, a full statement of such suit or proceedings for their direction as to the defence thereof. Even if that provision had been retained,' it would be no authority for the commencement of a suit like the present. Had the legislature .so intended; it would have been just as easy as it was to say what was therein said, to have added, “the supervisor shall have power to cause suits to be commenced and prosecuted. ” And because they said the one and omitted the other, we are to assume, necessarily, that they intended the one and not the other. It is purely a legislative question whether one officer rather than another, or whether any particular person besides the town electors, shall be empowered to cause suits in behalf of the town to be commenced and prosecuted; and the able and ingenious argument of counsel in behalf of vesting that power in the supervisor should therefore be addressed to the legislature rather than to the court. It is quite probable that in the extreme cases he puts, of the threatened destruction or invasion of the property of the town, any taxpayer who would thereby be affected in the burden of taxation might, on the authority of Colton et al. v. Hanchett et al. 13 Ill. 615" date_filed="1852-06-15" court="Ill." case_name="Colton v. Hanchett">13 Ill. 615, and subsequent cases decided on like principle, have an injunction to stay the threatened destruction or invasion. But that is impertinent to the case before us. We are powerless to legislate on this question,—we .must enforce the statutes the General Assembly have seen fit to enact. We can not supplement other remedies and other methods- of protecting and enforcing the rights of the town.
Counsel make the point that the court erred in dismissing the case, even conceding that the suit was commenced without lawful authority, because the motion "was only made by one of the defendants,—that the order of dismissal should have been only as to the party making the motion. This is not tenable. The court would, of its volition, without any motion, have dismissed the suit at any time when its attention was called to the fact that it was being prosecuted without lawful authority.
The judgment is affirmed.
Judgment affirmed.