# Unity v. Burrage/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
103 U.S. 447
Unity v. Burrage
The plaintiff in error alleges that the act of March 27, 1869, by authority of which the bonds sued on were issued, is a private act, and should have been specially recited in the declaration; and as the declaration contains no such recital, it is bad on general demurrer. The defendants in error deny that the act is a private act.
Private acts are thus defined by Blackstone:--
'Special or private acts are rather exceptions than rules, being those which operate only upon particular persons and private concerns, such as the Romans entitled senatus decreta, in contradistinction to the senatus consulta, which regarded the whole community, and of these (which are not promulgated with the same notoriety as the former) the judges are not bound to take notice, unless they be formally shown and pleaded. Thus, to show the distinction, the statute 13 Eliz., c. 10, to prevent spiritual persons from making leases for longer terms than twenty-one years, or their lives, is a public act, being a rule prescribed to the whole body of spiritual persons in the nation; but an act to enable the Bishop of Chester to make a lease to A. B. for sixty years is an exception to this rule; it concerns only the parties and the bishop's successors, and is, therefore, a private act.' 1 Black. Com. 86.
Tested by this definition, it is clear that the act under consideration is a public and not a private act. It legalizes and makes valid elections held by the people of Macon County, Illionis, on the question of issuing the negotiable bonds of the county in aid of certain railroad companies therein named, and authorizes all the townships in the counties where township organization had been adopted, lying on or near to the line of the Indiana and Illinois Central Railway Company, on certain specified conditions, to subscribe to the stock of that company, and issue their negotiable coupon bonds in payment thereof. This statute affects not only the people of the county of Macon, and of many of the townships of all the counties lying on or near the line of the railroad designated, but also all persons to whose hands the bonds issued by the county and township mentioned, may come.
Some cases throwing light upon the question will be cited.
An act passed by the legislature of Indiana, Feb. 14, 1848, to incorporate the Ohio and Mississippi Railroad Company, provided for subscriptions to the stock of the company by the commissioners of any county through which its road might pass, and an issue of the bonds of the county to pay for the same. This act was declared a public act by this court in Commissioners of Knox County v. Aspinwall, 21 How. 539.
In State, ex rel. Cothren, v. Lean (9 Wis. 279) it was held that a law providing for the location of county seat is a general law. The Supreme Court of Indiana, in West v. Blake (4 Blackf. (Ind.) 234), held that an act authorizing an agent of the State to lay off and sell lots in a particular town, it being the seat of government, was a public act. The courts said: 'Statutes incorporating counties, fixing their boundaries, establishing court-houses, canals, turnpikes, railroads, &c., for public uses, all operate upon local subjects. They are not for that reason special or private acts.' In this country the disposition has been on the whole to enlarge the limits of this class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large. Pierce v. Kimball, 9 Me. 54; New Portland v. New Vineyard, 16 id. 69; Gorham v. Springfield, 21 id. 58; Burnham v. Webster, 5 Mass. 266; Commonwealth v. McCurdy, id. 324; Commonwealth v. Springfield, 7 id. 9; Bac. Abr., Statute F. On these, and many other authorities which might be cited, we think that the act by which the issue of the bonds sued on was authorized is a public act, of which the courts are bound to take judicial notice, and that it need not be specially pleaded.
But independently of authority there is a conclusive answer to this claim of the plaintiff in error.
The act of Feb. 24, 1854, to which the act of March 27, 1869, is supplementary and amendatory, is declared in express terms of its fifth section to be a public act. It cannot, therefore, be said that the act which supplements and amends it, and thereby becomes a part of it, is a private act. If one is public, both must be.
The plaintiff in error next claims that the Decatur and Indianapolis Railroad Company and the Indiana and Illinois Central Railway Company were consolidated; that the effect of the consolidation was to destroy the old corporations and create a new one, and, therefore, when the act of March 27, 1869, was passed, entitled an act supplementary to and amending an act entitled 'An Act to amend the act entitled an act to incorporate the Decatur and Indianapolis Railroad Company, approved Feb. 8, 1853,' and authorizing certain townships to subscribe to the capital stock of the Indiana and Illinois Central Railway Company, the charter of the Decatur and Indianapolis Railroad Company had been surrendered; that the company had ceased to exist, and that, there being no corporation to which it could apply, the act of March 27, 1869, was, therefore, of no effect.
This seems to be an attempt to overturn by argument and inference a deliberate enactment of the legislature, and erase it bodily from the statute book.
Let it be conceded that the effect of the consolidation of the two companies was to create a new corporation under the name of the Indiana and Illinois Central Railway Company. It was perfectly competent for the legislature to authorize townships to subscribe to the stock of the new company, and issue their bonds in payment thereof. This was what the act under consideration did. The act which it purported to amend, after reciting in its preamble the fact of the consolidation of the Decatur and Indianapolis Railroad Company with the Indiana and Illinois Central Railway Company, conferred on the latter company, 'as existing under the consolidation, all the property, rights, franchises, and powers held, enjoyed, and possessed by either of said original corporations prior to their said consolidation.'
The act under consideration authorized certain townships to subscribe stock to this corporation thus formed, and to issue their bonds in payment therefor. It might fairly be entitled an act to amend an act, by authority of which the company existed.
The new company, existing by recognition of the act of Feb. 20, 1854, had the capacity to accept, and did accept, this amendment, for it received and put in circulation the bonds issued under its authority.
There is no ground for the theory that the act of March 27, 1869, is inoperative. We are bound, if possible, to give it effect, ut res magis valeat quam pereat. So far from its binding force being a matter of doubt, we see no difficulty, based on the reasons advanced by the plaintiff in error, in the way of giving it full and complete effect.
It is next said by the plaintiff in error that the act is unconstitutional, and, therefore, void and of no force.
The ground of its unconstitutionality is alleged to be that it does not conform to sect. 23 of art. 3 of the Constitution of Illinois of 1848, which provides that 'no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title.'
Assuming the act in question to be a local law, is it open to the objection urged against it? It legalizes two elections held by the people of Macon County; the first to decide whether the county should issue its bonds to the amount of $60,000 to aid in building the Indiana and Illinois Central Railway, and the second to decide whether the county should subscribe $40,000 to the stock of said railway company and issue its bonds for that amount in payment thereof, and declares valid and binding any bonds of the county issued or to be issued in pursuance of said elections, and it authorized certain townships on conditions prescribed to subscribe to the stock of said railway company, and issue their bonds in payment thereof.
This act is entitled an act 'supplementary to and amending' the act conferring corporate powers on the Indiana and Illinois Central Railroad Company.
The question whether such an act is obnoxious to the provision of the Illinois Constitution in relation to the subject and title of local acts, has been substantially decided in the negative by this court in the case of San Antonio v. Mehaffy, 96 U.S. 312.
The Constitution of Texas declares that 'every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title.' The act of the legislature of Texas, said to be in violation of this provision, was entitled 'An Act to incorporate the San Antonio Railroad Company.' Among other provisions, it authorized the city of San Antonio to take stock in that company, and issue bonds to pay for the same. The act was decided to have but one object, and that was expressed in the title.
The Supreme Court of Illinois, in the case of The Belleville &c. Railroad Company v. Gregory (15 Ill. 20) has decided that an act whose title was 'An Act to incorporate the Belleville and Illinois Railroad Company,' and which contained a section which authorized the city of Belleville and the county of St. Clair to subscribe for stock in the company, was not in violation of the section of the State Constitution under consideration. Fireman's Benevolent Association v. Lounsbury, 21 Ill. 511; Supervisors of Schuyler County v. People, 25 id. 181; O'Leary v. County of Cook, 28 id. 534; Erlinger v. Boneau, 51 id. 94; People v. Brislin, 80 id. 423; Binz v. Weber, 81 id. 288. The act cannot, therefore, be held to be open to the constitutional objection under consideration.
But it is insisted that the second election ratified by the act under consideration, not only had reference to subscriptions of stock and the issue of bonds in aid of the Indiana and Illinois Railway Company, but also of three other railroad companies, and the act, therefore, contained more than one subject, and the latter subject was not expressed in the title.
In such a case the provisions of the law touching the subject, which is expressed in the title, must stand. Those relating to the other subjects, not expressed in the title, alone fall. By such a construction the purpose of the constitutional provision is fully accomplished.
All the provisions of the law under consideration which have reference to the Indiana and Illinois Central Railway Company constitute but one subject; this, as we have seen, is expressed in the title; the other matters constituting other subjects, not expressed in the title, are so entirely disconnected with that which is expressed, that they can be eliminated and leave the remainder of the act in full force. Packet Company v. Keokuk, 95 U.S. 80.
We are of opinion, therefore, that so much of the act of March 27, 1869, as authorizes the issue of the bonds sued on, is fairly expressed in the title, and is constitutional and valid.
It is next alleged by the plaintiff in error that the Decatur and Indianapolis Railroad Company was incorporated under the general law of Illinois 'to provide for a general system of railroad incorporations,' and not under the special act to incorporate the Decatur and Indianapolis Railroad, of Feb. 8, 1853. And it is insisted that the act of March 27, 1869, under authority of which the bonds in suit were issued, was an attempt by special act to add to the powers conferred upon the company by a general law.
Conceding the premises, we do not think the conclusion follows. There is nothing in the Constitution of Illinois or the unwritten restraints upon legislative power which forbids such an enactment. We can see no reason, either in the Constitution of the State or in public policy, to restrain the legislature from declaring that certain townships may subscribe to the stock of a particular railroad company, organized under a general law, and issue their bonds to pay for the same.
But the premises which we have conceded are not true. The Decatur and Indianapolis Railroad Company was organized under the special authority of the act to incorporate that company upon compliance with the requirements of the general law.
The Indiana and Illinois Central Railway Company, in whose behalf the act of March 27, 1869, was passed, derived its corporate existence and power from a consolidation between a company of that name and the Decatur and Indianapolis Railroad Company, made by authority of the law under which the latter company was organized, and of the act of Feb. 20, 1854, which recognized the consolidation and confirmed to the new company 'all the property, rights, franchises, and powers held and enjoyed by either of said original corporations.'
The Indiana and Illinois Central Railroad Company derived its existence from special laws and not from the act to provide for a general system of railroad incorporations. There is, therefore, no ground for the objection under consideration to stand on.
The case is a clear one, and it is unnecessary to devote further space to its discussion. There was in existence, by virtue of the legislation of the State of Illinois, a corporation known as the Indiana and Illinois Central Railway Company. By a perfectly valid and constitutional act certain townships, among them the plaintiff in error, were authorized, upon a vote of a majority of their legal voters, to subscribe stock in the railway company mentioned and issue their bonds to pay for it. The election was held under this law in the township of Unity. A majority of its legal voters at that election decided in favor of subscribing to the stock of the railroad company, and issuing the bonds of the township in payment thereof. The stock was accordingly subscribed, and the bonds were issued by authority of law and sold. The railroad has been built and is in full use as one of the post-roads of the United States. The holders of the bonds are entitled to their money, and there is no legal obstacle in the way of a judgment therefor in their favor.
Judgment affirmed.

## Notes

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