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rallroad company, imports a compliance , 2, 1870, was restricted by the constitution to with the provisions of the former act; for a completion of such subscription or donathe act of 1857 declares that the subscrip tion as had been lawfully voted before tions authorized by it should be made in that date; if not upon the precise terms and every respect subject to the provisions and conditions attached thereto by the vote of restrictions of the act of 1819. If, therefore, the people, upon such terms as did not inthe case depended alone on the acts of 1857 crease the burden." Concord y. Robinson, and 1819, in connection with the recitals in 121 U. S. 165, 169, 7 Sup. Ct. 937. the bonds, the conclusion would be that the At the time-May 26, 1869—the county court county of Perry rightfully subscribed to the ordered an election to ascertain the popular stock of the Belleville & Southern Illinois will as to the proposed subscription, to be Railroad Company to the extent of $100,000 paid by bonds of the county, the act of April (for which amount the subscription was 16, 1869, entitled "An act to fund and provides made and the bonds issued), and that the for paying the railroad debts of counties, county was estopped by the representations townships, cities, and “towns," was in full* made in the recitals of the bonds, as be force. That act was referred to in the intween it and bona fide holders thereof, from dorsement made on each bond by the auditor relying upon any irregularities in the exer of state, as well as in the official communicacise of its power to subscribe that did not tion of the county judge of Perry county, Involve the substance of the power itself. transmitting them for registration.

But we are not at liberty to look alone to plied to every county, township, incorporated the acts of 1857 and 1849 and the recitals | city, or town that bad created a debt in aid in the bonds. Although the election relating of the construction of railways that were to to the subscription of the stock was held be completed within 10 years after its pasJuly 3, 1869, the county court did not make sage, as well as those which should create a Its order for the issue of bonds until after debt of the character named under any law the section of the constitution of Illinois of of the state. It contained the following, 1870 forbidding municipal subscriptions to among other provisions: the stock of railroad corporations went into "Sec. 7. And it shall not be lawful to regisoperation, which, as held in Schall v. Bow- ter any bonds under the provisions of this man, 62 Ill. 321; Louisville v. Savings* Bank, act, or to receive any of the benefits or advan104 U, S. 469; and Concord y. Robinson, 121 tages to be derived from this act, until after U. S. 165, 169, 7 Sup. Ct. 937,-was on the 2d the railroad in aid of the construction of day of July, 1870. That provision was in which the debt was incurred shall have been these words: “No county, city, township, completed near to or in such county, townor other municipality shall ever become sub- ship, city, or town, and cars shall have run scriber to the capital stock of any railroad thereon; and none of the benefits, advanor private corporation, or make donation to tages, or provisions of this act shall apply to or loan its credit in aid of such corporation: any debt unless the subscription or donation provided, however, that the adoption of this creating such debt was first submitted to an article shall not be construed as affecting election of the legal voters of said county, the right of any such municipality to make township, city, or town, under the provisions such subscriptions where the same have of the laws of this state, and a majority of been authorized, under existing laws, by a the legal voters living in said county, townvote of the people of such municipalities ship, city, or town were in favor of such prior to such adoption." Touching this con aid, subscription, or donation; and any counstitutional provision, we have heretofore ty, township, city, or town shall have the held that since July 2, 1870, “no municipal right, upon making any subscription or do corporation of Illinois has possessed authori- nation to any railroad company, to prescribe ty to subscribe to the stock of a railroad or the conditions upon which bonds, subscripprivate corporation, or to make donations to tions or donations shall be made, and such or loan its credit to them, except that a sub bonds, subscriptions or donations shall not scription or donation lawfully voted by the be valid and binding until such conditions people before the adoption of that section precedent shall have been complied with. could be completed upon the terms and con- | And the presiding judge of the county court, ditions approved by the electors. There is or the supervisor of the township, or chief no saving of the right of such corporation to executive officer of the city or town, that loan their credit to railroad corporations, shall have issued bonds to any railway or where such loan of credit was not embraced railways, in mediately upon the completion in a vote previously taken under existing of the same near to, into, or through such laws, and which was favorable to a sul county, township, city, or town as may have scription of stock or a donation.” “The been agreed upon, and the cars running thereconstitution took away all power to impose on, shall certify under cath that all the preupon the township any greater burdens than liminary conditions in this act required to be the people had by vote lawfully assumed done, to authorize the registration of suche under existing statutes." "They (purchasers bonds and to entitle them to the benefits of of the township bonds) were bound to know this act, have been complied with, and shall* that the power of the township, after July transmit the same to the state auditor, with

& statement of the date, amount, number, ma county court, by its order of December 5, turity, and rate of interest of such bonds, and 1870, directing the issue and delivery of the to what company and under what law issued; bonds, and the county officers who executed and thereupon the said bonds shall be sub- them, violated their duty as prescribed by ject to registration by the state auditor, as the statute. hereinbefore provided.” Pub. Laws Ill. 1869, But it is argued that the bonds having been pp. 317, 319.

executed and issued by those whose duty it Now, it is found as a fact that the people was to execute and issue them whenever that voted for the subscription on the condition, could be rightfully done, the county is esspecified in the election notices, that no sub- topped to plead their invalidity, as between scription should be made nor bonds issued it and a bona fide purchaser for value. This until the company's machine shops were lo argument would have force if the material cated at Duquoin. The act of 1869 not only circumstances bringing the bonds within the authorized the electors to prescribe such a authority given by law were recited in them. condition, but declared that no bonds, sub- In such a case, according to the settled docscriptions, or donations that were voted on trines of this court, the county would be esprescribed conditions shall have been "valid topped to deny the truth of the recital, as and binding until such conditions precedent against bona fide holders for value. But this should have been complied with." That the court, in Buchanan v. Litchfield, 102 U. S. location of the company's machine shops at 278, 292, upon full consideration, held that the Duquoin was a condition precedent to the mere fact that the bonds were issued, withmaking of a subscription or the issuing of out any recital of the circumstances bringing bonds in payment thereof, is placed beyond them within the power granted, was not in question, not only by the special finding of itself conclusive proof, in favor of a bona facts, but by the orders of the county court, fide holder, that the circumstances existed which were made part of the record for the which authorized them to be issued. purpose of presenting the exceptions taken to In the bonds here in question there are no those orders as evidence in the case.

recitals precluding inquiry as to the performThe order of the county court, made May ance of the conditions upon which the people, 24, 1869, submitting to popular vote, at an after the passage of the act of April 16, 1869, election to be held July 3, 1869, the question voted in favor of a subscription to be paid of subscription, provided:

by bonds of the county. Those recitals only “And be it further ordered that no bonds be imply that the bonds were issued under the issued or stock be subscribed by said court authority and in accordance with the acts of to the Belleville & Southern Illinois Railroad | 1857 and 1849. Those who took them must Company unless twelve hundred and thirty be held to have known that the constitution legal voters of said county shall have voted in of 1870 withdrew from municipal corporafavor of the same at said election, nor until tions authority to subscribe to the stock of, said company shall have built said road, and or to lend their credit to, railroad corporaput the same in operation from Belleville to tions, except for the purpose of completing Duquoin, through the town of Pinckneyville, subscriptions authorized under previous laws with depot and depot buildings at said town, by a vote of the people. And they must also nor unless said road shall be in operation be held to have known that by the act of from Belleville to Duquoin on or before the 1st 1869 no subscription voted on conditions day of January, A. D. 1871, and shall locate precedent could be rightfully made, nor bonds their machine shops at said Duquoin. And rightfully issued, until such conditions were be it further ordered that said bonds shall be performed. If, notwithstanding the express in the sums of not less than one hundred nor declaration in the act of 1869 as to the in. more than one thousand dollars, payable at validity of bonds issued without the performany time within twenty years from their date, ance of conditions precedent imposed by popat the option of the said county*court, bear ular vote, the county court, prior to the coning interest at the rate of 7 per cent. per an stitution of 1870, without the sanction of a num, and issued under the provisions of the popular vote, could have waived the condition act of the legislature of Illinois of November as to the location of the machine shops at 6, 1819, and act of April 16, A. D. 1869, enti- Duquoin, there is no evidence, on its records tled 'An act to fund and provide for the pay or otherwise, that it did so. And it is clear ing of the railroad debts of counties, town that they could not, after the 2d of July, ships, cities, and towns.''

1870, materially change the conditions imLooking, then, at the act of April 16, 1869, posed by the electors. It is equally clear and the constitution of Illinois, there is no that the recitals by the county officers in the escape from the conclusion that the condition bonds themselves do not import any such precedent, imposed by popular vote, that no change, nor a compliance with the provisions bonds should be issued until or unless the of the act of 1869 in respect to the performcompany located its machine shops at Du- ance of the conditions voted. quoin, was ic full force when the election The plaintiff in error is mistaken when it was ordered and held, as well as when the insists that its position as to the conclusive constitutional limitation upon municipal sub- effect of the recitals in the bonds is sustain. scriptions was prescribed, and that both the ed by the decision in Insurance Co. v.

Bruce, 105 U. S. 328. The bonds there in in the bonds does not contain any refer suit recited that they were issued by virtue ence to the act of April 16, 1869, or certify, of the charter, approved April 15, 1869, of any compliance with the provisions of that the particular company to which they were act; and the certificate of registry merely delivered, as well as by virtue of the act certifies that the bond has been registered of April 16, 1869. The court held that the in the auditor's office pursuant to the prolatter act did not make it obligatory to im visions of the act of April 16, 1869. The pose conditions upon the issuing of bonds, but statute does not require that the auditor only gave the right to prescribe conditions; shall determine or certify that the bonds have that the recitals fairly imported that noth been regularly or legally issued." In Cairo v. ing remained to be done in order to make Zane, 149 U. S. 122, 141, 142, 13 Sup. Ct. the bonds binding obligations upon the 803, this court, while holding, upon the autown, in the hands of bona fide purchasers. thority of German Bank v. Franklin Co., "Under these circumstances," the court said, that the certificate of registry was not con"the town, by every principle of justice, is clusive that the bonds were issued in full estopped, as against a bona fide holder, to compliance with the terms and conditions plead conditions, the existence of which of a subscription of stock, adjudged that the were withheld from the public either to certificate of registry in the office of the facilitate the* negotiation of the bonds in state auditor could be relied upon as showthe markets of the country, or because it ing that what the city of Cairo did, in that had full confidence that the railroad com case, amounted to a subscription of stock, pany would meet the prescribed conditions. which the statute gave it a right to make, It should not now be heard to make a de rather than to a donation, which it could fense inconsistent with the recitals upon its not legally make. It is to be observed, albonds, or upon the ground that the condi

so, that the bonds there in suit recited that tions imposed, of which the purchasers bad they were issued pursuant as well to an no notice, have not been performed."

ordinance of the city council of Cairo as to The fact that the bonds in suit in Insur a vote of the citizens of that city, and in ance Co. v. Bruce recited that they were is accordance with the laws of the state. The sued in virtue of the act of April 16, 1869,- recital that they were issued in accordance implying thereby that they were issued con with the laws of the state brought that case formably in all respects to the provisions of within the rule announced in Insurance Co. that act,-was alluded to by this court in v. Bruce, rather than within that announced German Bank v. Franklin Co., 128 U. S. | in German Bank v. Franklin Co. 526, 542, 9 Sup. Ct. 159, where one of the We cannot assume that the location of the questions was whether a county in Illinois, company's machine shops at Duquoin was issuing bonds which, upon their face, made deemed by the voters to be a matter of no no reference whatever to the act of April consequence. It may well be that the elec16, 1869, was estopped to show that they tion turned upon the question of the locawere issued in disregard of certain condi tion of those shops in the county, at a namtions precedent imposed by popular vote. ed place. The court, referring to the grounds of the It results from what has been said that, decision in Insurance Co. v. Bruce, said: as the recitals in the bonds issued to the “The view taken was that as the town of Belleville & Southern Illinois Railroad Com. Bruce had power, under the seventh section pany neither expressly nor by necessary imof the act of April 16, 1869, to make an plication imported a compliance with the unconditional subscription, and to issue and condition precedent imposed by popular vote deliver its bonds in advance of the construc in reference to the location of the compation of the road, and as the bonds recited ny's shops at Duquoin, it was open to the that they were issued by virtue of the act county to show that that condition was not of April 16, 1869, it was too late to claim performed when the bonds were issued by that they had been issued in violation of the order of the county court, and had never special conditions. In the case now before been performed. That being shown, the us, as before said, there is no reference in case is not brought within the reservation the bonds to the act of April 16, 1869, and or saving made by the state constitution in no statement in the bonds that they were favor of subscriptions authorized by popu. issued by virtue of that act." And what lar vote prior to July 2, 1870. In this view was said in German Bank v. Franklin Co. the judgment, holding the bonds issued to in relation to the registration of the bonds the Belleville & Southern Illinois Railroad is applicable to the present case: “The reg. Company to be invalid, was right. istration of the bonds by the state auditor Second. The bonds issued to the Chester has nothing to do with any of the terms or & Tamaroa Coal & Railroad Company. conditions on which the stock was voted or The Chester & Tamaroa Coal & Railroad subscribed. Neither the registration nor Company was incorporated by an act apthe certificate of registry covers or certifies proved March 4, 1869, with authority to conany fact as to compliance with the condi. struct, complete, and operate a railroad tions prescribed in the vote on which alone from Chester, in Randolph county, Ill., eastthe bonds were to be issued. The recital erly, on the most eligible route, by the way

of Pinckneyville, to Tamaroa, in Perry majority of the legal voters of said county of county.

Perry (assuming the standard required by law The history of the bonds issued to this and the said order of the court, taking as a company is fully disclosed in the orders of basis the number of votes cast at the last gen. the county court of Perry county.

eral election for county officers) having voted On the 18th day of January, 1870, that in favor of subscribing said stock: Now, body, at a special term on that day begun, therefore, it is ordered by the court, in purordered an election to be held at the usual suance of said order of court and the election places of voting in the several precincts of held thereunder, and the statutes in such the county of Perry, on the 19th day of Feb case made and provided, that the county of ruary, A. D. 1870, by the judges of election Perry, in the state of Illinois, do subscribe appointed at the September term, 1869, of the one hundred thousand dollars to the capital court, to ascertain if the county court would stock of the Chester & Tamaroa Coal & Railsubscribe one hundred thousand dollars to road Company, to be paid in bonds issued in the capital stock of the Chester & Tamaroa accordance with said order of court under Coal & Railroad Company. The order pro which said election was held, and to be regvided that no stock be subscribed “unless istered and paid as provided by an act of the nine hundred and eighty-four (984) legal general assembly of the state of Illinois in voters of said county shall have voted for force April 16, 1869, entitled 'An act to fund the same at said election"; "that the sub and provide for paying the railroad debts of scription should be paid in county bonds, in counties, townships, cities, and towns'; and sums of not less than one hundred dollars it is further ordered by said court that the nor more than one thousand dollars each, judges of this court subscribe said stock on payable at any time within twenty years the books of said company, and that the from date, at the option of the county court, same be attested by the clerk of this court, bearing interest at the rate of seven per under the seal of this court." cent. per annum," "said bonds to be reg On the 8th of June, 1870, the county court, istered and paid as provided in an 'Act en in regular term, made an order showing the titled an act to fund and provide for pay delivery to it on that day of a* certificate of ing railroad debts of counties, townships, stock issued by the Chester & Tamaroa Coal cities, and towns,' in force April 16, 1869; & Railroad Company, which certificate was but no bonds shall be registered or paid ex ordered to be recorded and filed; that the cept in the following manner and upon the county had subscribed and was entitled to following conditions, to wit, $50,000 of said the benefits of 1,000 shares of $100 each, of bonds shall be issued to said railroad and the capital stock of the company, “to be paid coal company when they shall have com in Perry county bonds, as provided by the pleted said road and cars for passengers terms of subscription made by the county and freight, shall have run thereon to Pinck court on the books of the company, and the neyville, in said Perry county, and depot election held on the 19th day of February, and depot buildings shall have been estab 1870, authorizing said court to make said lished or built within the corporate limits subscription, and transferable on conditions of said town of Pinckneyville, provided the as provided in the by-laws." work on*said road shall commence at Tam At a special term of the county court, held aroa, and depot and depot buildings shall November 10, 1871, the county court made an have been established or built within the order reciting all previous orders, and statcorporate limits of said town of Tamaroa; ing that the company had completed their and be it further ordered that the residue, railroad from Tamaroa to Pinckneyville, had $50,000, shall be issued when said road shall run cars for freight and passengers thereon, be completed through the county, and thence had built depot buildings in Tamaroa and to the terminus of said road, and cars shall Pinckneyville, and had complied with and have been run thereon, and all necessary fulfilled all the conditions of the order of the depot and depot buildings have been es court made at its January special term, 1870, tablished or built as above required and to entitle it to have and receive from the specified. The ballots in favor of subscrib county of Perry the first issue of said bonds. ing the stock shall contain the words For That order concluded as follows: subscription' and those against the subscrip “Now, therefore, be it ordered by the court tion, 'Against subscription.'”

that Charles E. R. Winthrop, judge of the At the regular term of the county court, county court, and J. Carroll Harriss, clerk of held March 8, 1870, an order was made said court, sign and deliver to said company, which referred to the previous one for an or their authorized agent or attorney, fifty election, and proceeded: “And whereas, in bonds of said county, for the sum of one pursuance of said order and published notices thousand dollars each; that the said bonds thereof, as required by law, said election was be of date of the 1st day of July, 1871, and held in said county on the 19th day of Febru draw interest from their date, payable semiary, A. D. 1870; and whereas it appears from annually at the American Exchange National the returns of said election, on file in the Bank, in the city of New York, and that all county clerk's office of said county, and the coupons on said bonds maturing on and precertificate of the board of canvassers, that a vious to the said 1st day of July, 1871, bs

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cut off by the said Charles E. R. Winthrop, that the proposition to subscribe $100,000 to Judge, and J. Carroll Harriss, clerk, of said the capital stock of the company received court, before delivering the same to said com only 986 votes in its favor, whereas at the pany; and that the said judge of the county last general election in the county 2,024 votes court be authorized to certify under oath were cast. The court, we infer, had in mind that all the conditions of the order made on the provision of the act of November 6, 1819, the 18th day of January, 1870, above recit. under the authority of which the bonds pured, have been complied with by the said port, upon their face, to have been issued. Chester & Tamaroa Coal & Railroad Com If we looked alone to the act of 1849 as pany, and that said bonds be registered and authority for issuing these bonds, there would paid in pursuance of an act of the general as be ground for holding that the provision sembly of the state of Illinois entitled 'An act of the constitution of 1870 relating to municito fund and provide for paying the railroad pal subscriptions and bonds would be an indebts of counties, townships, cities, and superable obstacle in the way of any recovery towns.'"

on the coupons of bonds issued to this comOn tbe 15th of November, 1871, a certificate pany; for the act of 1819, in express words, similar in form to the one issued December forbade the making of subscriptions or the is5, 1870, in reference to the bonds to the suing of bonds except upon a vote of a maBelleville & Southern Illinois Railroad Com jority of qualified voters, taking as a standpany, and verified by the oath of the county ard the vote cast at the next preceding general judge and under the county seal, was sent election for county officers. What number of by that officer to the auditor of public ac votes would meet that requirement could be counts of Illinois. And on the 6th day of determined by reference to the official record December, 1871, a like certificate was made of the election. All who took bonds issued unby the county judge in respect to 50 other der the act of 1849 were bound to take notice bonds issued by the county to the Chester & of what that record disclosed. The constituTamaroa Coal & Railroad Company.

tion intended that that record, being accessiThe bonds issued to the last-named com ble to all, should speak for itself. The number pany were similar, in their general form, to of votes at the last preceding general election those issued to the Belleville & Southern was not dependent upon any calculation or Illinois Railroad Company; each one being investigation or weighing of facts by officers signed by the county judge and the county charged with the duty of issuing bonds under clerk, under the county seal, and containing that act. If, therefore, the case depended upthe following recitals: “This bond is one of a on the act of 1819, the judgment of the court series of bonds issued by the county of Per below would be sustained, on the authority ry in payment of one hundred thousand dol of Northern Bank v. Porter Tp., 110 U. S. lars of the capital stock of the Chester and 608, 616, 4 Sup. Ct. 254, in which it was said: Tamaroa Coal and Railroad Company, in pur "The adjudged cases, examined in the light suance of an election held by the legal voters of their special circumstances, show that the of Perry county, Illinois, on the 19th day of facts which a municipal corporation issuing February, 1870, and by virtue of the provi. bonds in aid of the construction of a railroad sions of an act of the general assembly of was not permitted, against a bona fide holdthe state of Illinois entitled 'An act to pro er, to question, in face of a recital in the vide for a general system of railroad incor bonds of their existence, were those connected poration,' approved November 6, 1849. And with or growing out of the discharge of the for the payment of said sum of money, and ordinary duties of such of its officers as were accruing interest thereon, and in the manner invested with authority to execute them, and aforesaid, the faith of the county of Perry, which the statute conferring the power made state of Illinois, is hereby irrevocably it their duty to ascertain and determine bepledged, as also its property, revenue, and re fore the bonds were* issued, not merely for* sources." Each coupon signed by the county themselves, as the ground of their own action judge and county clerk was in this form: in issuing the bonds, but, equally, as authen"The county of Perry will pay to bearer on tic and final evidence of their existence, for the 1st day of July, 1888, at the American the information and action of all others dealExchange Bank, in the city of New York, ing with them in reference to it.” In the thirty-five dollars; it being six months' in same case it was said that although, the powterest on bond No. 52, for $1,000."

er existing, a municipality may be estopped Upon each bond was indorsed a certificate by recitals to prove irregularities in its exerby the auditor of public accounts to the ef cise, and when the law prescribes conditions fect "that the within bond has been regis upon the exercise of the power granted, and tered in this office this day pursuant to the commits to the officers of such municipalities provisions of an act entitled 'An act to fund the determination of the question whether and provide for paying the railroad debts of those conditions have been performed, the corcounties, townships, cities, and towns, in poration will also be estopped by recitals imforce April 16th, 1869.'

porting such performance, nevertheless "the •We have seen that the only ground upon question of legislative authority in a corporawhich the court below held these bonds to tion to issue bonds in aid of a railroad combe not binding obligations of the county was pany cannot be concluded by mere recitals."

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