# Township of Elmwood v. Marcy/Dissent Strong

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* Dissenting Opinion Strong
United States Supreme Court
92 U.S. 289
Township of Elmwood v. Marcy
MR. JUSTICE STRONG, with whom concurred MR. JUSTICE CLIFFORD and MR. JUSTICE SWAYNE, dissenting.
The material facts in this record are few. The two elections were held on the same day (March 16, 1869); one in pursuance of a regular call made Feb. 11, and the other pursuant to a call made Feb. 16, 1869. At the election held under these calls, a subscription for $35,000 was voted, and also an additional subscription of $40,000. The aggregate of the two was $75,000; and a subscription for so much stock having been made in accordance with the popular vote, and certificates therefor having been taken by the supervisor and town-clerk, bonds for the amount were issued. At the time these two subscriptions were voted, there was a provision in the original charter of the railroad company (passed March 5, 1867) authorizing the subscription for $35,000, and there was also in the amendment to the charter (passed March 9, 1869) a provision authorizing an additional subscription not exceeding $65,000. There was, therefore, full legislative authority for the entire subscription of $75,000, and for the issue of bonds for that amount, when the elections were held at which the subscriptions were voted.
But the call for the second vote to determine whether the town would subscribe for the additional $40,000 was irregular in two particulars. It was made before the act of March 9, 1869, was passed,-the act which authorized a subscription larger than $35,000, though the vote was taken afterwards; and the petition for the call was signed by the supervisor, townclerk, and twelve freeholders (in the mode of calling special town-meetings), instead of being signed by twenty-five legal voters,-the mode pointed out by the act of March 5, 1867. The notice of the election, however, was given twenty days,-the full time prescribed by the act.
These variances from the directions of the statute were irregularities, mere non-compliance with form and mode; nothing more. Authority to subscribe the additional $40,000, if the subscription was approved by a popular vote, existed undeniably when the vote was cast in favor of the subscription, though not when the call for the subscription was made. The authority emanated from the legislature. Whether it should be exercised or not was made to depend on the result of a popular vote. The popular vote was the substantial thing. The mode in which the election should be called, as well as the length of time during which notice of it should be given, were formalities required indeed, but they were not of the essence of the power. They were merely ancillary to the main object which the legislature had in view; which was to provide for an expression of the popular sentiment.
But if the departure from the mode of proceeding pointed out by the legislature was only an informality, as it plainly was, it was curable by the same power that prescribed the form; and I think it was cured, in the present case, before the subscription was made, and before the bonds were issued. On the seventeenth day of April, 1869, the legislature passed an act by which it was enacted as follows:--
'That a certain election held in the township of Elmwood, in Peoria County, on the sixteenth day of March, A.D. one thousand eight hundred and sixty-nine, at which a majority of the legal voters in said township, in special town-meeting, voted to subscribe for and take $40,000 of the capital stock of the Dixon, Peoria, and Hannibal Railroad Company, over and above the $35,000 which was on the same day subscribed for and taken in accordance with the provisions of the charter of said company, is hereby legalized and confirmed, and is declared to be binding upon said township; and the 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.'
Why this act did not cure all irregularities and all informalities of the election, and why, in connection with the prior acts of May 5, 1867, and March 9, 1869, it did not complete the authority to subscribe for the $40,000 of stock, and to issue the town-bonds therefor, I cannot discover. A retrospective statute curing defects in legal proceedings, and even in contracts, is of frequent occurrence, and, unless expressly forbidden by constitutional provisions, is effective. Irregular proceedings in courts, or in the organization or elections of corporations, and irregularities in the votes or other action of municipal corporations, by means of which a statutory power has failed of due and regular execution, have often been cured by such legislation; and the power irregularly or informally executed has been declared well exercised. Such statutes are held to be constitutional. The principle asserted is, that if the thing wanting, or which failed to be done, and the want or failure of which constitutes the defect or irregularity in the proceedings, is something which the legislature might have dispensed with by prior statute, it is within the power of the legislature to dispense with it by subsequent enactment. Cooley, Const. Lim. 371, and cases there cited. Illustrations of this principle abound. Void contracts have thus been validated. So have void acknowledgments by married women, and, repeatedly, contracts by municipal corporations, which, when made, were in excess of their authority. Such retrospective laws are supported, when they impair no contract or disturb no vested right, but only vary remedies, or cure defects in proceedings otherwise fair. They have their foundation in equity and in justice. In St. Joseph Township v. Rogers, 16 Wall. 666, where it appeared that the election at which the subscription was approved was held before the passage of the law authorizing the subscription, and not after, as in the present case, this court said, 'Argument to show that defective subscriptions of the kind may, in all cases, be ratified where the legislature could have originally conferred the power, is certainly unnecessary, as the question is authoritatively settled by the decisions of the Supreme Court of the State (Illinois) and of this court in repeated instances.' And again: 'Mistakes and irregularities are of frequent occurrence in municipal elections, and the State legislatures have often had occasion to pass laws to obviate such difficulties. Such laws, when they do not impair any contract or injuriously affect the rights of third persons, are never regarded as objectionable, and certainly are within the competency of legislative authority.'
It is argued, however, that the validating act of April 17, 1869, is unconstitutional because it compels a municipal corporation to contract and pay a debt without its consent. It is said the election by which it was voted to subscribe was a nullity, and, therefore, that there never was any consent to the subscription. The argument is founded upon a complete misconception of the facts and of the law. The statute was in no just sense an act to confer new power, or to impose a debt. It was what it purports to be,-an act to cure the defective execution of a power already granted. That such an act creates no rights, confers no authority, and imposes no new duty, is palpably plain. It might as well be argued that an act curing defective acknowledgments of a deed by a married woman compels her to make a conveyance. It cannot be said that there was no consent to the subscription. True, the consent was not according to the formalities required when it was given; but it was none the less a substantial assent to the proposition to subscribe. The validating statute, therefore, was not an overriding of the will of the voters: it was rather an act to give effect to an informally expressed consent.
The position here taken on behalf of the plaintiff in error is as novel as it is unsound. It is, in effect, to deny the power of a legislature to pass retrospective statutes in any case for the purpose of curing the irregular or defective execution of a power by municipalities, a power never before denied. In The President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405 (decided in 1864), it was ruled, that if a town subscribes to the stock of a railroad company, and issues its bonds therefor, without legislative authority therefor, it is competent for the legislature to legalize and validate what the town has done. There the town, having no authority to take stock, had held an election irregularly, and had voted to subscribe for $20,000 and issue bonds. A subsequent act of the legislature validated the subscription, and the act was sustained by the Supreme Court of the State. It was not thought then that the confirming act compelled the town to contract a debt without its consent. This case of Keithsburg v. Frick was the declared law of the State when the bonds of the plaintiff in error were issued. It was in full accord with the decisions made in other States. McMillan et al. v. Lee County, 3 Iowa, 317.
It matters not, then, that the Supreme Court of Illinois changed its ruling in 1871, as in the cases of Marshall et al. v. Silliman et al., 61 Ill. 218, and Wiley et al. v. Silliman et al., 62 id. 170. This was after the bonds had been issued. The purchaser had a right to rely upon the law as declared by the court when he purchased, or when the bonds were issued, especially as it was in accordance with the former decisions of the same court, and with what has been decided in every other State, so far as we know, and by this court. Then it had never been held that the legislature could not authorize the supervisor and town-clerk to execute township bonds. True, it had been decided that the power could not be conferred upon commissioners or persons who were not officers of the township, and for the reason that they were not the corporate authorities, but were persons having no interest in or control over the township affairs,-a reason inapplicable to the township surpervisor and clerk; and certainly it had never been decided that an act of the legislature validating an irregular election or an irregular exercise of power by the officers of a municipal corporation was unconstitutional and inoperative. The decisions made in 1871, after these bonds were issed, are, in my judgment, the assertion of new doctrine, which this court is not bound to follow, especially when it leads to such injustice as the present decision exhibits.
For these reasons, I dissent from the judgment of the court.

## Notes

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