The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1873-11-08
THE OTTAWA RAILROAD BONDS.


Says the Earlville Transcript, in speaking
of this state releasing the town OF Ottawa
FROM payment of her $3.50 900 bonds voted TO
h.W Ottawa, Oswego &. T. r. v r. r.:
We have not read the decision referred to,
but it is probably grounded on the reasoning
of Judge Cody in the Michigan case, that
the public cannot be taxed for the benefit OF
individuals or corporations. This principle,
il adhered to, would destroy forever we'll
worn avenue 10 the pockets OF the people.
The Court took no such high ground, but
decided the case on the single point that the
supposed law under which the bonds were
issued had never passed the senate of Illinois,
therefore was no law, thus rendering the
bonds not only voidable, but void Cd initio.
In the opinion of the Court, delivered by
Justice Scho'tield, after answering the argu,
ment of counsel that the evidence Cthe ccrtifi-
cient to prove that the act had never passed
the senate, Justice Scholfeld continues
1t is argued by the counsel, that the defcn-
dants in-error, as residents and taxpayers of
the town of Ottawa, are estopped from claim
ing that the bonds are void, because they
have passed into the hands of innocent hold
ers and the town of Ottawa has paid interest
upon them.
If the bonds are voidable merely, this is
true; but if they are absolutely void ii is
not.
If the bonds were issued without any pow
er or authority in law authorizing them to be
issued, they are absolutely void; but, if the
legal power or authority to issue them exist
ed, but was effectively or irregularly cXeCu-
ted, they are only workable, and an innocent
and bona-fide holder would be entitled to col
lect them This construction has been re
peatedy recognized by this court as well us
by the Supreme Court of the United States
(Clark " Board of Supervisors Of Hancock
County, 81 ILL.,, 30S; Johnson V. Stark County,
y H., 70; Schuyler County Y. The People,
90 ILL.,, 1867 Board of Supervisors V. Weder,
not reported; North V. Fulton County, 10
Wallace, 6S3)
In this case, the only power or authority in
law, justifying the issuing of the bonds, is
the act of the 18th of February, 1857, which,
&c have seen, was not read on the different
DAYS, nor was /, passed by vote by the ayes
and noes of the Senate
Art 8, Sec II Constitution of 1913 rculires
that, "On the final passage of all bills, the
vote shall be by ayes and noes, and shall be
entered on the Journal; and no bill shall be
coine a law without the concurrence of Il
majority of all the members elect in each
House" And the 23d section Of the same
article requires that Every bill shall be read
on three different days, in each House, I'M
less, in case of emergency, threefourths of
the House where such bin is so depending
shall deem it eXpedent to dispense with this
rule"
Tho hill thorcr,ro ,,avnr hnnnp,n q lou, tI,.
act conferred no power or authority whatever
TO issue the bonds. 1t was as completely a
nullity as if it had been the act or declaration
of an authorized asSemblage Of individuals !
(SpanglOve v.'Jacoby, II H., 29S People, |
&c, V. Starne, 30 H., 1871
1t follows that the bonds were not merely
voidable but that they were absolutely void
for the want or power or authority 10 issue
them: and no consequent act or recognition
of their validity could so far give vitality to
them as to estop the tax payers from denying
their legality.
1t is also argued by the counsel that the
decree should be reversed because the bond
holders were not made parties.
The general rule IS that all persons who
have any substantial legal or beneficial inter
est in the suit should be made parties; but, |
where such persons are very numerous, or
are unknown, so that the rule becomes I'M
practicable or extremely nconvinienr the
Court will dispense with it. See Story's Eq.
Pleading, Sec. III. ct seq. In Marshall V.
Silliman ct al. mot reported) which was an
alagous, in this respect, to the present case,
this same objection was urged as around of
reversal, bHt It was disregarled by MAORI,
ty of the Court.
1t is alleged in the bill that the complain
ants do not know, and are unable to ascertain
who are the holders of the bonds If this be
true, and we have found nothing in the record !
dIsproying it. to hold the compliments are
not entitled to relief until these persons shall
be made parties would virtually deny all le-
lief. We think the case is clearly within the |
recognized exception to the general rule
which we have stated, and that the holders of
the bonds are not indispensable parties
PerCciving no error in the record. the de
nrcn Of tLn Gai,rt Lul.... :. 90 i,..,..-l