# Township of Elmwood v. Marcy

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## Dissenting Opinion

    Strong
United States Supreme Court
92 U.S. 289
Township of Elmwood v. Marcy
ERROR to the Circuit Court of the United States for the Northern District of Illinois.
The judges of the Circuit Court were divided in opinion, whether, under the facts of this case and the legislation of Illinois applicable to them, there existed power and lawful authority to issue the bonds and coupons in controversy, so as to render them valid and collectible in the hands of the plaintiff below, who is defendant here. Judgment was rendered in his favor, and the cause is brought here for review. From the certificate of division, it appears that the Dixon, Peoria, and Hannibal Railroad Company was incorported March 5, 1867; that prior to Feb. 11, 1869, the road of said company was located in the township of Elmwood; that, at the date last named, an election was called under the provisions of the charter of said company, to be held on March 16, 1869, to determine whether said township would subscribe to the stock of said company, and give its bonds for $35,000, the maximum amount permitted by law; that, five days afterwards,-to wit, on the 16th of February, 1869,-notice was given of another election, not purporting to be in pursuance of said charter, to be held at the same time and place with that aforesaid, to determine whether said township would subscribe to the stock of said company, and issue the bonds for a further sum, over and above the amount authorized by law as aforesaid; that said first-named election resulted in favor of subscribing said $35,000, and the second-named election resulted in favor of an additional subscription of $40,000; that after both said elections were notified, and seven days before they were held,-viz., on the 9th of March, 1869,-the charter of said company was amended so as to authorize towns in which said road might be thereafter located to vote and subscribe $100,000 to its capital stock; also that, thirty-two days after said election,-viz., on the seventeenth day of April, 1869,-the legislature passed a validating act, and that ten days tereafter, on the 27th of that month, the supervisor and town-clerk issued the bonds and coupons contemplated by both elections. That act legalized and confirmed the subscription for $40,000 to the capital stock of the company over and above that for $35,000, which was confessedly made in accordance with the provisions of the original charter. The bonds in suit are part of those issued for the greater sum; and the question is, whether they are binding on the town.
Mr. H. B. Hopkins, Mr. J. H. Morrow, and Mr. E. G. Johnson, for the plaintiff in error.
The bonds and coupons in question are null and void. First, Because their issue was and is inhibited by the Constitution of Illinois, and the laws upon which they depend for their validity are unconstitutional and void. Second, Because they were issued in plain violation of the letter and spirit of the acts which purport to authorize their issue. Wiley et al. v. Silliman et al., 62 Ill. 170; Marshall et al. v. Silliman et al., 61 id. 218.
The act of the Legislature of Illinois of April 17, 1869, attempts to confer the power of municipal taxation upon persons who are not the corporate authorities of the district to be taxed, and is therefore unconstitutional and void. Harward et al. v. The St. Clair and Monroe Levee and Drainage Company et al., 51 Ill. 130; Same v. The State of Illinois, id. 138; The People ex rel., & c. v. Mayor, &c., of Chicago, id. 17; The People ex rel., &c. v. Soloman, Clerk of Cook County, id. 37; Hessler v. Drainage Commissioners, 53 id. 105; Marshall et al. v. Silliman et al., and Wiley et al. v. Same, supra.
It has become a prominent doctrine of this court, that the construction which prevails in the State courts at the time municipal bonds are issued, upon questions touching their validity, enters into and forms a part of them as the settled law of those contracts, although the State court may have adopted a different ruling. Gelpeck v. City of Dubuque, 1 Wall. 175, Olcott v. Supervisors, &c., 16 id. 678; Havemeyer v. Iowa County, 3 id. 294; Mitchell v. Burlington, 4 id. 270; Christy v. Pridgeon, id. 196.
Mr. Isaac G. Wilson and Mr. Sanford B. Perry for the defendant in error.
It is apparent, from the phraseology of the act of April 17, 1869, that it does not compel the township to incur an obligation and tax itself without its consent. So far from conferring a new power, or imposing a debt, it simply cures and legalizes the defective and irregular exercise of an existing power. The President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405.
It is competent for the legislature to give effect and validity to an election held for the purpose of determining as to the expediency of subscribing for stock, before the passage of a law providing therefor. St. Joseph Township v. Rogers, 16 Wall. 644; McMillan et al. v. Lee Co., 3 Iowa, 317.
Wiley et al. v. Silliman et al., 61 Ill. 218, is squarely in conflict with the decision of this court in Township of Pine Grove v. Talcott, 16 Wall. 666.
If the words, 'and is hereby declared binding on said township, and said $40,000, when subscribed according to the conditions of said vote, may be collected from said township in the same manner as if the said subscription had been made under the provisions of said charter,' create a debt, and so are obnoxious to the provisions of the Constitution, they must be disregarded. It is a familiar principle of construction, that a statute is void only so far as its provisions are repugnant to the Constitution; and that one provision may be void, and the others valid. Sedg. on Stat. and Const. Law, 2d ed., 413; Fisher v. McGin, 1 Gray, 22.
The township organization law of Illinois does not declare what officers of a town constitute its municipal officers.
The supervisor and town-clerk are, by the obvious intent of the law, the proper officers to execute all authorized town obligations, except those otherwise specially provided for. They are, pro hac vice, the municipal authorities. Marcy v. Town of Ohio, 5 Legal News, 551.
MR. JUSTICE DAVIS delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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