# Township of Elmwood v. Marcy/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Strong
United States Supreme Court
92 U.S. 289
Township of Elmwood v. Marcy
The questions arising upon this record were elaborately considered in Marshall et al. v. Silliman et al., 61 Ill. 218; and the doctrines there announced were recognized and enforced in Wiley et al. v. Silliman et al., 62 id. 170. The last case involved the validity of the identical bonds in question here; but both were, in all substantial particulars, alike. They were bills in equity to enjoin the collection of taxes for the payment of interest; and the court decided that the law of March 9 gave no power to issue the bonds. The opinion affirms, that, when the notice for the vote was posted, the charter of the company only authorized a subscription for $35,000; that the notice under which the vote for the $40,000 was taken was a mere call for a special town-meeting, signed only by twelve voters, which did not seek to follow the provisions of the charter, as, indeed, it could not, since the power under them was already exhausted; and that the proceeding was utterly void. That law is disposed of in these words: 'It is true that on the 9th of March, 1869, the legislature passed another act authorizing towns to subscribe $100,000; but a new notice was not given. The charter required twenty days' notice, and only seven intervened between the passage of the act and the vote.'
It was insisted, however, that the curative act of April 17, passed after the vote had been taken, gave validity to the bonds. On this ground counsel placed their chief reliance, and to it the court directed its principal attention.
The act was direct and positive, and left nothing to inference. It was intended, so far as the legislature could do it, to make the bonds binding on the township, and collectible in the same manner as if the subscription had been authorized by the charter, and voted for in accordance with its terms. The court held it to be a violation of the fifth section of the ninth article of the Constitution of 1848, which declares 'that the corporate authorities of counties, townships, school-districts, cities, towns, and villages, may be vested with power to assess and collect taxes for corporate purposes, such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same.' The decision was placed on the ground, that, this section having been intended as a limitation upon the law-making power, the legislature could not grant the right of corporate taxation to any but the corporate authorities, nor coerce a municipality to incur a debt by the issue of its bonds. In the opinion of the court, the act was an effort to do both these things, as it attempted to confer that right upon persons who were not by themselves the corporate authorities in the sense of the Constitution, and to compel the town to issue its bonds for railroad stock by declaring a void proceeding to be a valid subscription.
Counsel argued that the act might be treated as vesting an unconditional authority in the supervisors and town-clerk to issue the bonds, and cited The President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405, which recognizes that the legislature can constitutionally bestow upon the trustees of a town the power, if they think proper to exercise it, to subscribe for stock in a railroad company, without requiring the subject to be submitted to a vote of the people. The court, adhering to the doctrines of that case, but distinguishing it from the one under consideration, and referring to Lovingston v. Wilder, 53 Ill. 302, as an authority in point, said 'that the town supervisor and clerk who issued the bonds in controversy do not represent a township as the board of trustees represent an incorporated town, or the common council a city. The supervisor and town-clerk are but a part of the corporation. They have no power of taxation, nor power of themselves to bind the city in any way.' But, even if these two officers could be recognized as the corporate authorities, the court observed 'that they cannot be said to have voluntarily incurred this debt in behalf of the town. The act gave them no discretion. It declared the subscription shall be binding, and may be collected; and left to the town authorities only the ministerial function of executing the behest of the legislature.'
The main doctrines of these cases were not new, but had been settled by the repeated adjudications of the Supreme Court; and that learned tribunal has given no decision at variance with them.
In Harward v. The St. Clair Drainage Company, 53 Ill. 130, the clause of the Constitution under consideration in Marshall et al. v. Silliman et al., and Wiley et al. v. Silliman et al., was construed to be a limitation upon the power of the legislature to grant the right of corporate or local taxation to any other persons than the corporate or local authorities of the municipality or district to be taxed. To the same effect are Hessler v. Drainage Company, 53 id. 105, and Lovingston v. Wilder, id. 302. The People ex rel., &c. v. The Mayor of Chicago, 51 id. 17, decides that the legislature could not compel a municipal corporation, without its consent, to issue bonds or incur a debt for a merely corporate purpose.
So far as we can see, the only new point determined in the cases we have first cited is that it is not competent for the legislature to single out the supervisor and town-clerk, and confer on them powers which the Constitution limits to the corporate authorities as an aggregate body.
We are not called upon to vindicate the decisions of the Supreme Court of Illinois in these cases, or approve the reasoning by which it reached its conclusions. If the questions before us had never been passed upon by it, some of my brethren who agree to this opinion might take a different view of them. But are not these decisions binding upon us in the present controversy? They adjudge that the bonds are void, because the laws which authorized their issue were in violation of a peculiar provision of the Constitution of Illinois. We have always followed the highest court of the State in its construction of its own constitution and laws. It is only where they have been construed differently at different times, that, in cases like this, we have adopted as a rule of action the first decision, and rejected the last. This has been done on the ground that rights acquired on the strength of the former decision ought not to be lost by a change of opinion in the court, but, where the construction has been fixed by an unbroken series of decisions, the courts of the United States accept and apply it in cases before them. If a different rule were observed, it is not difficult to see that great mischief would ensue.
There has been no conflict of judicial opinion in Illinois on the controlling question in this suit, but, on the contrary, settled uniformity. As these concurring decisions of the court of last resort in that State are grounded on the construction of its constitution and statutes, it is the duty of this court to conform to them. Judgment reversed, and new trial ordered.
MR. JUSTICE STRONG, with whom concurred MR. JUSTICE CLIFFORD and MR. JUSTICE SWAYNE, dissenting.

## Notes

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