Page images

Vol. IV.]

Town of Ottawa v. PERKINS.

[No. 5.


[MARCH, 1877.]



Actions were brought upon certain bonds issued by plaintiffs in error, the town of Ottawa

and Kendall County. Evidence was offered in the court below that the statutes in pursuance of which the bonds had been issued, had not been passed in the exact form and manner prescribed by the state Constitution. The testimony was excluded, the court holding that the facts showed that the holder of the bonds was a bona fide purchaser without notice of any objection to their validity; that the first instalment of interest had been paid at maturity; that the law had been duly published among the printed statutes of the state; and that the defendant was, therefore, estopped from offering any evidence that the law was not passed according to the provisions of the Constitution. Held, that this view was erroneous; that there can be no estoppel in the way of ascertaining the existence of a law; and that as, under the decisions of the state court of last resort, the evidence was admissible to prove that the law as published

was not a law it should have been received. Waite, C. J., and CLIFFORD, SWAYNE, and STRONG, JJ., dissenting.

In error to the circuit court of the United States for the Northern District of Illinois.

Mr. Justice BRADLEY delivered the opinion of the court.

The first of these actions was brought by Perkins, the plaintiff below, to recover the amount due upon two negotiable bonds of the town of South Ottawa, in the usual form, for one thousand dollars each, made payable to the Ottawa, Oswego, and Fox River Valley Railroad Company, or bearer, in three years from July 1, 1869, with coupons for the semiannual payment of interest attached. They each contained recitals as follows:

“ This bond is one of a series of 20 bonds bearing even date herewith, each for the sum of $1,000,.... and is issued in pursuance of an election held in said town, on the 8th day of October, 1866, under and by virtue of a certain act of the Legislature of the State of Illinois, approved February 18, 1857, entitled "An act authorizing certain cities, counties, incorporated towns, and townships to subscribe to the stock of certain railroads,' .... at which election a majority of the legal voters participating in the same voted · for subscription' to the capital stock of said railroad in the sum of twenty thousand dollars, and to issue the bonds of said town therefor; and the said election was by the proper authorities duly declared carried · for subscription,' previous application having been made to the town clerk of the town, and said clerk having called said election in accordance therewith, and having given due notice of the time and place of holding the same, as required by law and the act aforesaid.”

The second action was brought on a bond issued by the county of Kendall, in Illinois, bearing date the 4th day of May, 1869, in aid of the same



Vol. IV.]


[No. 5.

railroad, and by virtue of the same act of the legislature, and containing substantially the same recitals, mutatis mutandis, as those in the Ottawa bonds, except that the election authorizing the issue of the bonds is stated to have been held on the 30th day of March, 1869. The facts in the two cases are, in other respects, substantially the same:

The only authority claimed for issuing these bonds is the act referred to in the above recital therein. If no such act was ever passed by the Legislature of Illinois the bonds are void. A municipal corporation cannot issue bonds in aid of extraneous objects without legislative authority, of which all persons dealing with such bonds must take notice at their peril. Pendleton Co. v. Amy, 13 Wall. 304; Kennicott v. Supervisors, 16 Wall. 465; St. Joseph v. Rogers, 16 Wall. 659; Coloma Town v. Eaves, 92 U. S. 484; S. C. 3 Am. L. T. R. N. S. 235. ..

It is insisted on the part of the plaintiffs in error in these cases, that the law relied on for authority to issue the bonds in question was never passed, no entry of its passage appearing on the Journal of the Senate of Illinois.

The Constitution of Illinois, adopted in 1848, contains the following provisions :

“ Art. III. sec. 1. The legislative authority of the state shall be vested in a general assembly, which shall consist of a senate and house of representatives, both to be elected by the people.”

“Sec. 3. Each house shall keep a journal of its proceedings, and publish them.” ....

“ Sec. 21. .... 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 become a law without the concurrence of a majority of all the members elect in each house."

The Constitution also provides that all bills passed shall be signed by the speakers of the two houses, and approved and signed by the governor, or, in case of his refusal, shall be repassed by a majority elected to each house. The general laws of the state provide for depositing all acts of the legislature, and the original journals of the two houses, in the office of the secretary of state, who is charged with having them printed ; and the printed statute books are made evidence of the acts contained therein.

In the construction of the constitutional provisions above recited, the supreme court of Illinois, by a long course of decisions, has held that it is necessary to the validity of a statute that it should appear by the legislative journals that it was duly passed in the manner required by the Constitution.

As early as 1853, it was decided, in Spangler v. Jacoby, 14 Ill. 299, that it was “ competent to show from the journals of either branch of the legislature, that a particular act was not passed in the mode prescribed by the Constitution, and thus defeat its operation altogether. The Constitution requires each house to keep a journal, and declares that certain facts, made essential to the passage of a law, shall be stated therein. If those facts are not set forth, the conclusion is that they did not transpire. The journal is made up under the immediate direction of the house, and is presumed to contain a full and complete history of its proceedings. If a certain act received the constitutional assent of the body, it will so appear Vol. IV.]


[No. 5.

on the face of its journal. And when a contest arises as to whether the act was passed, the journal may be appealed to, to settle it. It is the evidence of the action of the house, and by it the act must stand or fall. It certainly was not the intention of the framers of the Constitution, that the signatures of the speakers and the executive should furnish conclusive, evidence of the passage of a law. The presumption indeed is, that an act thus verified became the law pursuant to the requirements of the Constitution, but that presumption may be overthrown. If the journal is lost or destroyed, the presumption will sustain the law, for it will be intended that the proper entry was made on the journal. But when the journal is in existence, and it fails to show that the act was passed in the mode prescribed by the Constitution, the presumption is overcome and the act must fall.”

This case was followed, in 1855, by Turley v. County of Logan, 17 Ill. 151. There, a law was supposed to have been passed at the session of the legislature in 1853, for the removal of the seat of justice of Logan County, by a vote of the people. In the fall after, a vote was taken, which resulted in favor of the removal. Turley and his associates then filed their bill to restrain the county officers from erecting county buildings at the new location, on the ground that, as appeared by the journal, the act had not been read in the house of representatives the full number of times required by the Constitution, and so was no law. The fact being as alleged, the injunction was, in the first instance, allowed, but afterwards, in February, 1854, the same legislature met in extra session, and, on recollection of members, and by the manuscript notes of the clerk, the house of representatives amended its journal so that it showed the bill had been read the requisite number of times. Thereupon, the supreme court, when the case came there, while recognizing fully the authority of Spangler v. Jacoby, affirmed a decree dissolving the injunction and dismissing the bill, for the reason that it was within “ the power of the same legislature, at the same or a subsequent session, to correct its own journals, by amendments which show the true facts as they actually occurred.”

The same question was also considered by the same court in Prescott v. The Trustees of the Illinois of Michigan Canal, 19 Ill. 324, decided in 1857. There, Prescott and Arnold were entitled to purchase at the appraised value, certain lots in Chicago, which had been appraised twice, and the point to be decided was whether they should pay according to the first or second appraisal. The second appraisal was made under a law supposed to have been passed February 14, 1851, but which the journals showed had never in fact passed either branch of the general assembly. Accordingly, the court held, upon the authority of Spangler v. Jacoby, that the second appraisal was invalid and that the parties had the right to purchase under the first.

In the case of The Supervisors of Schuyler County v. The People, 25 Ill. 181, which came before the court in 1860, it was objected that the senate journal did not show that the bill incorporating the railroad company was read three times in that body before it was put on its final passage, but the court, while still approving Spangler v. 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 impeached on that ground.

This which shubsequentas within the inju

Vol. IV.)

[No. 5. In 1864, in the case of The People ex rel. Barnes v. Starne, 35 Ill. 121, an application was made for a mandamus to compel the treasurer of the state to countersign, register, and pay a warrant issued upon him in favor of Barnes, the relator, by the auditor of public accounts. The warrant was issued upon the authority of what was supposed to be a statute of Illinois, approved February 14, 1863, as compensation for transporting and bringing home certain wounded soldiers belonging to the state; but it being shown that the journal of the house of representatives did not contain entries to the effect that the bill was passed by a majority of the members elect, or that the vote was taken by ayes and noes upon the final passage, the mandamus was refused. In the opinion of the court the authorities are extensively reviewed and the rulings in the previous cases reaffirmed.

These cases were all decided before the issue of the bonds sued on in this case. But since that time two cases have arisen under the very law now in question, in which the supreme court of Illinois has decided that it was never passed, and is not an act of the legislature of that state. The first of these cases, Ryan v. Lynch, 68 II. 160, was decided in 1873. Certain tax-payers of the town of Ottawa sought to enjoin the tax-collector from collecting a tax which had been levied to pay interest upon bonds issued in aid of the Ottawa, Oswego, and Fox River Railroad Company, upon the ground that the act under which the bonds were issued, that of February 18, 1857 (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 it 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 authority of Spangler v. Jacoby, and other cases which followed it, granted the injunction asked for. In the supreme court, on appeal, it was insisted that the decree ought to be reversed, because the bondholders had not been made parties. The objection was overruled and the action of the court below affirmed.

Following this is the case of Miller f Paddock v. Goodwin, 7 Chicago Legal News, 294, not yet reported in the regular series of the reports of the state. It being shown in this case, as in Ryan v. Lynch, that the journals did not contain the requisite evidence of the passage of the law, it was again adjudged invalid. This was in January, 1875. An effort was made in this last case to impeach the transcript of the legislative journals, but it was unsuccessful. The court repeated what it had said in the case of Ryan v. Lynch, supra, using this language: “ The bill never became a law, and the pretended act conferred no power. It follows that the bonds were not merely voidable, but that they were absolutely void for want of power or authority to issue them; and consequently no subsequent act or recognition of their validity could so far give vitality to them as to estop the tax-payers from denying their legality.” This opinion, it is true, was delivered after the trial of the case now before us. But it goes to show that up to the very moment of that trial there had been no vacillation 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,

the journal of on. At the heted in conformi

t the bonds and the pretensupra, using this repeated white legis

Vol. IV.)


[No. 5.

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 senate of the Act of February 18, 1857. The testimony was objected to and ruled out. Substantially the same questions were raised by demurrer to a plea. The ground of this decision seems to have been that the holder of the bonds was a bona fide 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 estopped from offering any evidence to show that the act was not passed, the same having been duly published among the printed statutes as a law, and being therefore prima facie a valid law: in other words, that although the act might not have been duly passed, the town, under the circumstances of the case, was estopped from denying its passage.

We cannot assent to this view. There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a state is a law or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an act of the legislature could thus be a law in one case and for one party, and not a law in another case and for another party; a law to-day, and not a law to-morrow; a law in one place, and not a law in another in the same state. And whether it be a law, or not a law, is a judicial question to be settled and determined by the courts and judges. The doctrine of estoppel is totally inadmissible in the case. It would be a very unseemly state of things, after the courts of Illinois have determined that a pretended statute of that state is not such, having never been constitutionally passed, for the courts of the United States, with the same evidence before them, to hold otherwise.

It is declared by the judiciary act as a fundamental principle " that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise 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." Sec. 34. And this court has always held that the laws of the states are to receive their authoritative construction from the state courts, except where the federal Constitution and laws are concerned ; and the state constitutions, in like manner, are to be construed as the state courts construe them. This has been so often laid down as the proper rule, and is in itself so obviously correct, that it is unnecessary to refer to the authorities:

If, therefore, the law in question had never been passed upon by the state courts, the courts of the United States would nevertheless be bound to give to the Constitution of Illinois the same construction which the state courts give to it; and to hold a pretended act of the legislature void and not a law which the state courts would hold to be so. Otherwise we should have the strange spectacle of two different tribunals, having coordinate jurisdiction in the same state, differing as to the validity and existence of a statute of that state without any power to arbitrate between them. In speaking, however, of their jurisdiction as being coördinate, it is only meant that one has no power to enforce its decisions upon the other. As a matter of propriety and right, the decision of the state

« PreviousContinue »