88 Ill. 11 | Ill. | 1878
delivered the opinion of the Court:
This court has repeatedly announced the doctrine, that where a municipality is empowered to subscribe to the capital stock of a railroad company, and issue its bonds in payment of the subscription, but it is also required that there shall first be an affirmative vote of a majority of the electors of the municipality to that effect, no power exists to make the subscription and issue the bonds until after such vote shall have been obtained, at an election held for that- purpose, called by the authority prescribed by the law, and upon such notice of the time and place of holding the election as the law shall direct; and that whoever deals in municipal bonds is chargeable with knowledge whether these precedent conditions to the existence of the power of making the subscription and issuing the bonds have been complied with. Marshall County v. Cook, 38 Ill. 48; People ex rel. etc. v. Supervisors of Logan County, 63 id. 384; Harding v. Rockford, Rock Island and St. Louis R. R. Co. 65 id. 90; Middleport v. Ætna Life Ins. Co. 82 id. 562.
The first section of the act of March 6, 1867, (Private Laws of 1867, vol. 1, p. 866,) under the provisions of which it is claimed the bond in controversy was issued, requires there shall first be an affirmative vote of a majority of the electors of the town, authorizing the subscription; that the election shall be called upon the application of twenty legal voters and tax-payers of the town; and that notice of the election shall be posted for at least twenty days. The pleas show that the application for the election was signed by only twelve legal voters and tax-payers of the town, and that the notice of the election was posted only ten days. Under the ruling referred to, therefore, it must follow, the election was a nullity,.and no power existed in the supervisor of the town to make the subscription and issue the bonds.
But it is contended, that, conceding this to be true, the subscription and issue of the bonds were made valid by a curative act of the legislature, in force April 17, 1869. (Private Laws of 1869, vol. 3, p. 302.) The second section of that act does assume to have that effect. It refers to the subscription by name, and declares that it shall be valid and binding; and, therefore, if it was within legislative competency thus to bind the town, that settles the objection to the bond.
County boards, such as boards of supervisors, county commissioners, etc., and the nmnicipal authorities of incorporated cities, towns and villages, may, when empowered so to do by proper legislation, subscribe for the capital stock of railroad corporations without first submitting the question to the electors of the municipality. They are elected as repesentatives of the electors, and, theoretically, in appropriate cases, their acts are the acts of those they represent. Hence it has been held, where a vote of the electors has been required as a precedent condition to the making of a subscription for stock in a railroad company, and the law prescribing the mode of calling and holding the election has not been observed, inasmuch as the legislature might have empowered the municipal authorities to make the subscription without first submitting the question to the electors, it may, by a subsequent enactment, declare the non-compliance with the law in the holding of the election of no consequence, and validate the subscription—in other words, validate the subscription without reference to the election. This, however, it will be observed, is upon the theory that power to make the subscription does not, in any degree, necessarily depend upon a vote of the electors of the municipality upon that question, but solély upon the will of the legislature.
But, 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, and it is not pretended they may, or did, in the present instance, bind the town in any other way. The doctrine has been announced and adhered to by this court for a number of years, and is engrafted upon our present constitution, that the legislature can not compel a municipal corporation to incur a debt or issue its bonds for a local corporate purpose without its consent. Hessler v. Drainage Com’rs, 53 Ill. 110; Lovingston v. Wider, id. 302. The municipality may be invested with power by the legislature to that end, and incur such debt through its corporate authority; but the legislature is not authorized to create such debt for it, or to compel its corporate authority to do so.
Here, then, the only pretense that the corporate authority of the town (the electors) acted, in making this subscription and issuing the bonds, is the pretended election. But it was not called in conformity with law, and the notice of the election was not given as the law required. Of this, it is to be presumed, the electors were cognizant, and, being advised of its illegality, it is fair to presume that many opposed to the proposition pretended to be submitted did not participate in the election, knowing that they could not possibly be affected by it. The election being illegal and void, it is impossible to say that, in any view, the result can be regarded as the assent of the corporate authority of the town to the proposition submitted. The corporate authority of the town (the electors) must and can only act when called together in obedience to law, and when not thus called together it is obvious any action by them can, at best, amount to no more than the action of a mass meeting. The supervisor and town clerk, neither separately nor associately, are the corporate authority of the town. They are simply town officers, with limited duties to perform in respect of town affairs, whom the law has appointed to discharge a ministerial duty, in obedience to the direction of the town authority. They possessed no power, either as town officers or under the statute, except under the direction of the corporate authority of the town, to do any act in regard to making the subscription or issuing the bonds.
The act of April 17, 1869, then, rests solely on the power of the legislature to create a debt against the town without the consent of its corporate authority. That consent had not been given anterior to the passage of the act—it was not required, nor has it been given posterior to its passage—and hence, upon the authority of the cases referred to, it was invalid, because beyond legislative competency. This question was fully considered and discussed in Marshall v. Silliman, 61 Ill. 218, and Wiley et al. v. Silliman, 62 id. 170, and what we have said goes but little beyond a re-statement of the propositions there carefully elaborated. It is true, in those cases the subscription condemned had not been authorized by the corporate authority of the town, although an election for that purpose was claimed to have been held, because no law authorized an election for that purpose; but the difference between a pretended election, held to be a nullity because not authorized by any law, and one held to be a nullity because not called and held in obedience to an existing law, can surely be of no significance to the present question. The result is, in neither case was there any action of the corporate authority of the town (the electors) on the question, which the law will recognize, and in both cases the‘legality of the subscription and issue of the bonds must rest solely upon the act which assumes to validate them. See Barnes v. Town of Lacon, 84 Ill. 461.
In our opinion, the case presents a question, not of the mere defective execution of a power in issuing bonds, but of an absence of power in those assuming to be the representatives of the town to act in the matter; and, thus holding, the judgment below meets with our approval, and must be affirmed.
We are aware that a rule, differing in material respects from that followed by this court in regard to the extent to which bona fide holders of municipal bonds shall be protected by the recitals of those invested with the ministerial duty of issuing such bonds, is held by the Supreme Court of the United States. But, much as we respect the ability and learning of the members of that court by whom that rule is maintained, we have never been convinced that it is preferable to that we have adhered to. The agent can not, in our opinion, by his act alone, invest himself with power to bind his principal; and his individual act, unknown to and. unsanctioned by his principal, can not be held to estop his principal to deny his power to act. As we have seen, a toAvn must act through its electors, either to ratify an act already done or to authorize a future act, where its acquiescence or consent is material; and there having been, here, no such act, there can be no estoppel.
Judgment affirmed.
