The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1877-04-14

governed the action OF the court below. In
our judgement 1t WAS not necessary to have
raised an issue on the subject except by de-
murrer to the declaration. The court IS
bound to know the law without taking the
advice of jury on the subject When once
it became the settled construction Of the con.
sttution of Illinois that 70 act Can be deemed
valid law unless, by the journals of the leg
sature, it appears to have been regularly
passed by both houses, 1t became the duty OF
the courts to take judicial notice Of the jour-
nal entries in that regard. The courts Of Ill
inO.s NAV decline to take that trouble unless
parties bring the matter to their attention
but, on general principles, the question as to
the existence of a law is Judicial one and
must be so regarded by the courts OF the Unit
ed States.
This subject was fully discussed in the
case of Gardner VS. The Collector, 6 Wallace,
400. After examining the authorities the
court in that case lays down the general con-
clnsiOu, chat whenever Il question arises IN
a court of law Of the existence of statute, or
of the time when Il statute took effect or OF
the precise terms of a statute, the judges who
are called upon to decide 1t have a right to
resort to any source Of information which IN
its nature Is capable of conveying to the judi
cial mind clear and satisfactory answer to
such question; always seeking first for that
which in its nature Is most appropriate, I'M
less the positive law has enacted a different
rule" C Wall, 5l1.)
OF course any particular state may by its
constitution and laws prescribe what shall be
conclusive evidence ofthe existence or non
existence of a statute; but, the question of
such existence or nOE-cXisteDce being Judi
cal one IN its nature, the mode OF ascertain.
ing and using that evidence must res, in the
sound discretion Of the court on which the
responsibility rests in any particular case.
Not only the courts, but individuals are
bound to know the law, and cannot be recely-
ed TO plead ignorance OF it. The holder OF
the bonds in question can claim no indul-
gence on that score; and can take no advan-
tage from the allegation that he is Il iona fde
purchaser without notice. lie would, 1t is
true, be precluded from dong so on another
ground namely, the want of any legislative
authority in fact in the town to issue the
bonds in question. Want of such authority
is u fatal objection to their validity, no mat
ter under what circumstances the holder may
have obtained them.
Thus far we hal not adverted to the argu-
ment attempted to be drawn by the defend
ants ir error, from the fact that the act in
question was referred to in two subsequent
acts of the legislature as an existing law One
of these was passed on the 9th day Of March,
1869, entitled "An act to amend an act, enti-
tied AN act to incorporate the Ottawa, Oswe-
go and Fox River Valley Railroad company"
This act authorized the company to build
railroad from the town of Wenona to the city
of Peoria, and, by the second section, 1t was
enacted that any city, county, town, or town
ship near to or through which SAID road Is
now or may hereafter be located Is Hereby
,bca ,I,n 10 rs ttn1
of SAID railroad, upon the terms and condl.
tons prescribed IN an act entitled AN act to
authorize certain cities, counties, towns and
townships to subscribe to the stock of certain
railroads. in force Feb. IS, 1857" The title
here recited Is not the title of the act in ques.
ton. 1t differs from II IN several respects,
though this was probably the one that was
intended to be referred to. Surprising 1t 10
have been the one referred to, 1t is not pre-
tended that this act of March 81, 1869, en-
braces the town of South Ottawa or the coun-
ty of Kendall, whose bonds are the subject of
the present suits. But it is urged that the
reference to the act of 1857 IS such a recOgnl-
ton of that act as to give 1t validity II 1t had
none before. This was certainly not the pur
pose of the act of 1869, nor do we think that
such was its effect. The legislature could
lot thus, in 1869, give validity to a VOID act
stltutionally passed in that year, for that
would be an evasion of the constitution. 1t
could at most give 1t vitality as new act
from the date of the act of 1862 But this it
does not profess to do; it only adopts Its pro-
visions for the purpoae of the act then passed.
And if the legislature OF 1869 could have
validated all proceedings had under the sup
posed act of 1857, 1t did not do so. 1t did not
profess to do it. No such purpose Is indl-
Gated IN II.
The most that can be SAID is that in refer.
ring to the act of 1857, the Legislature mad
vertantly supposed that it had been regularly
passed. Whether such inadvertence was the
result of false suggestion by interested par
ties, or otherwise, is of no consequence. No
intent to validate and establish the act of 1857
us law, can be gathered from the terms of
the act of March 81, 1860. To give to such a
reference in subsequent act as Is here relied
on, the effect of validating, or reviving, or vi
TALKING a void or repealed statute, when no
such intention IL expressed, would be danger
Gus and would lay the foundation for evil
practices The legislature might IN this way
be entrapped into the enactment or reenact-
ment of laws when it had no intention, or
even suspicion, that it was doing so.
The other act relied on was passed on the
Goth day OF April, 1869, and is entitled An
act to amend an act entitled An act author
izing certain cities, counties, towns, and
to subscribe to the stock of Ger
tain railroads in force Feb. IS, 1857 beng
the act in question, if the words 6 in force"
are construed to refer to the date of It's sup
posed passage. This amendatory act declares
that IN addition to the cities, counties, towns,
and townships authorized by the said act TO
which tins is an amendment, to subscribe to
the stock of the Ottawa, Oswego and Fox
River Valley railroad, the following portions
of cities, counties, towns, and townships he
authorized to subscribe to the capital stock
of SAID railroad in manner as provided IN said
act except as hereinafter provided. The act
then proceeds to designate the portions of
towns referred TO.
The same observations apply 20 this act
which have been made in regard to the act OF
March -, 1869. 1t does not profess or pur-
port to give any new force or validity To the
supposed act OF 1857, or to validate any pro- |
ceedings had under that act. Ii taxes for