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

passed either branch of the general assembly
Accordingly, the court held, upon the authori
lty of Spangler VS.. Jacoby, that the second ap
praisal was invalid, and that the parties hao
the right to purchase under the first
In the case of The Supervisors of Schuyler
County vs.. The People, % ILL.,, 1871, which
came before the court IN 1860, it was object
ed that the senate journal did not show that
the bill Incorporating the railroad company
was read three times in that body before il
was put on its final passage, but the court
while still approving Spangler VS.. Jacoby
: held that the constitution did not require the
fact that the bill had been read three times to
be entered on the journals, and consequently
that the validity of the law could not be I'M
peached on mat ground.
In 1864, the case OF The People ex rel
Barnes vs.. Starnc, 80 H., 12l, an application
was made for a mandamuS to compel the
n treasurer of the state to COuntersgn, register
and pay warrant issued upon HIM in favor
of Barnes, the relator, by the auditor of pub.
lie accounts. The warrant was issued upon
the authority of what was supposed 10 be a
statute of Illinois, approved, Feb. IA, 1868, as
compensation for transporting and bringing
home certain wounded soldiers belonging to
the state, but ii being shown that the journal
of the house OF representatives did not con-
tain entries to the effect that the bill was
passed by majority Of the members elect,
or that the vote was taken by ayes and noes
upon the final passage the mandamus was re-
fused. In the opinion OF the court the au-
thorites are extensively reviewed and the
ruling in the previous cases affirmed.
These cases were all decided before the is.
sue of the bonds sued on in this case But
since that time two cases have arisen under
the very law now ia question, in which the
supreme court Of Illinois has decided that it
was never passed, and is not an act of the leg.
islature of that state. The first of these cases,
4 Ryan VS.. Lynch, GS III, 100, was decided in
1878. Certain taxpayers Of the town Of OF
tawa sought TO enj0n the taXcollectOr from
collecting a tax which had been LEVIED TO pay
interest upon bonds issued in aid Of the Otta,
wa, Oswego and Fox River Railroad COmpa-
ny, upon the ground that the act under which
the bonds were issued, that Of Feb. IS, 1861
(the same which is now under consideration
had not been enacted in conformity with the
requirements of the constitution. AT the
hearing IN the court below il was proven
that the journal of the senate did not show
that the bill had ever passed that body. Upon
this proof the court, recognizing the authorl-
ty OF Spangler VS.. Jacoby and other cases
which followed it, granted the injunction
~
it was insisted that the decree ought to be
reversed, because the bondholders haG not
been made parties The objection was over
ruled and the action of the court below af.
firmed.
Following this is the case of Miller and
Paddock VS.. Goodwin, 7 Chicago Legd} Nt,cS,
294, not yet reported in the regular series OF
the reports of the state. II being shown
in this case, as in Ryan VS., Lynch, that the
Journals did not contain the requisite evil
dence Of the passage of the law, 1t was again
; adjudged invalid This was In January,
1915. An effort was made in this last case 10
impcach the transcript OF the Legislative jour
mails, but 1t was unsuccessful. The court re-
pcated what 1t had said in the case of Ryan
VS.. Lynch, using this language: "Ths bill
never became law and the pretended act
conferred no power. 1t follows that the bonds
were not merely voidable, but that they were
absolutely void for want OF power or authori.
ty to issue them; and consequently no subse.
quent act or recognition OF their validity
could SO far give vitality to them as to estop
the taxpayers from denying their legality"
This opinion, 1t is true, was delivered after
the trial of the case now before ns. But II
goes to show that up to the very moment OF
that trial there had been no vacllation in the
state court as to the construction and effect OF
the constitution of Illinois.
When the cases now under consideration
came on for trial in May, 1874, the defendants
below offered to prove, by the journals OF
each house of the legislature, that there was
no entry in the same OF the passage by the SEN
ate of the act OF Feb. 49, 1857. The testimony
was objectedto and ruled out, Substantially the
same questions were raised by demurrer to a
plea. The ground Of this decision seems to
| hot hna,, hot tho hpIAar pf a hpuAc ua a
bona fde purchaser OF them without notice of
any objection to their validity; that the first
instalment Of interest was paid at maturity !;
and, therefore, that the defendant was estop-
ped from Offering any evidence to show that
the act was not passed, the same having been
duly published among the printed statutes as
law, and being, therefore, prtald fdcte valid
law in other words, that although the act
might not have been duly passed, the town,
under the circumstances of the case, WAS es-
stopped from denying its passage.
! We cannot assent TO this view. There
can be no estoppel in the way of
ascertaining the existence OF II law
That which purports to be u law of a
state is Il law or ii is not u law, according as
the truth of the fact may be, and not accord
ing to the shifting circumstances of parties
1t would be an rtolerable state of things if a
islature could thus be a law in one case and
for one party, and not law in another case
and for another party; law today, and not
law tomorrow; a law In one place and not
a law in another in the same state. And
whether ii be Il law or not law Is a judicia!
question to be settled and determined by the
courts and judges. The doctrine of estoppel
is totally inadmissable in this case. Itwould
be a very unseemly state of things, after the
courts of Illinois have determined that pre-.
tended statute of that state is not such, hay.
ing never been constitutionally passed, Tor
the courts of the United States, with the same
evidence before them, to hold otherwise.
1t is declared by the judiciary act as fun
damental principle that laws Of the several
states, excep. where the constitution, treaties,
or statutes Of the United States shall other
wise require or provide, shall be regarded as
rules of decision IN trials at common law in
the courts of the United States in cases where
they apply tSec. 34) And this court has
always held that the laws of the state are to