The Manitowoc pilot. [volume] (Manitowoc, Wis.) 1859-1932, 1884-05-01

and conditions upon which aid should be granted
in calling special election, and In contracting
| for subscription and bonds were not supervisor.
de facto.
munity because they were not the proper author
tiles of the county, to whom this extraordinary
power was delegated.
Z. There being want of power in the county
and IN its authorities, the bonds are void even II
the hands of bona fide purchaser.
f. The recitals in the bonds as TO full eompII
ance with all conditions precedent, subsequent
recognition, lapse of time, payment OF interest OF
like acts do not relieve the bonds of the above
objection. If void for want of power and author
ity to issue, the bonds are like forged paper.
II. The county has q good legal defense TO sane
bonds.
In arriving at the above conclusions, l am fully
conscious of the general disposition of the courts
to uphold the acts of parties who assume to exer-
else the duties of public Office under color OF
title, while not officers de 5Hre. The reason fol-
not allowing their acts to be questioned collater
ally, Is one supported by eminent public policy
Third persons, dealing with incumbents of office
under such apparent circumstances OF reputation
or color, as would lead men to suppose they were
legal officers must be protected; and number OF
cases viii be found where even the unconstltu-
tionality of the Legislative act providing for theiI
election or appointment, was not deemed fatal to
| the validity of their acts or contracts.
But it is equally true that when the office itself
does not lawfully exist the doctrine of sustaining
the acts of an officer de ac0 apply. 1t pre-
supposes an Office which the law recognizes. And
| further: II may be urged that long prior TO the
month of March, 1870, the public had full knowl-
edge that these pretended supervisors were not
the lawful authorities officers de jre. As early
as the June term of 1863 the Supreme Court of
| tins state pronounced this species of county Or
ganization unconstitutional tState VS.. Riordan a
/ Wis, 49,; ande during the following winter the
/ Legislature promptly restored the former system
| of uniformity throughout the state.
! Chap. ST. Laws 1870, published March Y, 10.
Resolution No. 30, Assembly, introduced
! February A. 1870
SO that the reason for InyOkIgg, part of third
persons the doctrine of officer de tactO, seems TO
| be utterly wanting.
concede to be true what our present Chief JUS
tIce of supreme Court said, In LAYER VS.. McGlach-
4 lin, % Wis. 366: mo precise rule of general
/ mature be extracted from the cases, as to
what constitutes an officer de fdct0; for each
| necessarily depends in some degree upon its pc
| ''culiar circumstances. Nor are the authorities
/ entirely in harmony upon the subject
! And also confess to my inability to find case
precisely analogous to ours, in English or Ameri-
can law reports. Still am decidedly of the opin-
ion that my conclusions, as stated above, viii
/ prevail IN case of earnest controversy.
Sth | also incline to the opinion that the val
idity of the r. Il. charter of the Lake Shore Road
under which part of the aid was voted is not free
/ from doubt; however do not think ii necessary
to pursue this subject Of inquiry further at this
| time and place.
The above, believe, fully covers the legal in
/ quIrles submitted to me for investigation. 10
questions of policy, or the particular steps to be
taken IN protecting your county against what
seems to be a Illegal and unjust burden, have
not given any consideration.
In conclusion beg to return thanks to Messrs
SehnltZ q hlrwan, attorneys at law OF your CITY
public records, and for the uniform professional
courtesy with which | have met on their part
throughout my research.
Awaiting your further pleasure, L remain,
Respectfully yours,
L. W. CoTZHAUSEN.
REPORT OF COMMITTEE.
To THE COUNTY BOARD OF SUPERVISORS OF TIIE
COUNTY OF MANITowoC, WIS.-GENTLEMEN-
undersigned committee appointed by your boarC
at the annual meeting IN November 1883, anC
chargeCswith the duty of investigating into tx
condition and ValUa of ran road stock hpiC
by the county and matters appertalplng thereto
has given the subject earnest attention and nov
beg leave TO report: That the discharge of saIC
duty the committee employed and received The
assistance and services of Hon. 4. W. CotZhauseI
of Milwaukee and Michael kirwan of Manltowoc
who, after thorough investigation of the subject
IN hand, have severalIy stated III writing the con
illusions at which they have arrived, and which
are submitted herewith for your consideration
In personal interviews and consultations with the
legal gentlemen whom we employed our atten
ton has been called TO the whole history of thu
case, and numerous points have been discussed
and considered which we do not deem 1t neces
sary to state here In detail. As TO the result o
its investigation and upon the facts ascertalned
your committee mn came to these conclusions us on,
was almost if not wholly worthless when issuet
and is of no value now.
Ind. The county has no recourse or remed.
against the present railroad corporation on &C
count of the worthlessness of such stock.
3rd. The bonded Indebtedness of the count,
for railroad purposes is as follows:
Bonds issued to the Appleton New Lon
Bonds issued to the Milwaukee, Manito-
woe & Green Bay r. Il. Co. $500
Making the principal sum of S2l6,lD
which becomes due in the year 1892 and bears in
, terest at therate of seven per cent. per annum
payable annually.
Your committee would not advise the resistance
of such demands If they were certainly valid; bu
it Is the opinion of Mr.. Cotzhausen that the coun
ty bonds invalid, not only IN the hands of tn
original holders, but even when owned by subse
quent purchasers, because the power to issue then
was wanting.
The determination of the questions must event
ually be left to the higher courts and the contes
Will require time, money and endurance. But w
feel warranted in recommending that this board
in justice to itself and to the people whom IL rep
resents, take immediate and energetic means ant
| measures for the purpose OF testing the VdllQIt
| of the bonds.
This committee further recommend that com
mittee of five members of this board be appoint
ed by this board, and that said last named com
mittee be authorized and empowered t. act TO
and represent this board IN preparing fer and oil
recting the litigation of the questions above men
toned; and that said committee of five be EN-
powered and instructed to prepare and publish
an address to the public and bond holders to tn
r | effect that payment of interest the bonds o
the county VIII henceforta cease and that all per
sons claiming to be thereby injuriously affected
are invited to institute more suits III tn
courts for the purpose of having the validity o
the bonds decided, and that If the final determln
alton of such suit or suits shall be adverse to tn
county, this community Will thenceforth do 1T
: utmost to discharge its obligations In so far
tax-ridden public is able to respond.
All of which is hereby respectfully submitted
Dated at Manitowoc County, April II, 1884.
7. L. STOKER,
| FRED. SCHMITz, Com
j. &. MCCARTY,