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Opinion of the Court.
to entitle them to the benefits of said act last referred to have been fully complied with to the best of my knowledge and belief."
On the day that certificate was filed the auditor of State indorsed on each bond that it had been registered in his office pursuant to the provisions of the said act in force April 16th, 1869.
It was stipulated in the cause that the interest on the bonds so issued had been regularly paid by the city from the date of their delivery to the issuing of the injunction by the State court in September, 1882.
1. It is entirely clear that when the vote of April 6th, 1868, was taken, the city of Jonesboro was not authorized by its charter, or by any statute of Illinois, to make a subscription to the capital stock of the Cairo and St. Louis Railroad Company. The power given to its city council “ to borrow money on the credit of the city and issue their bonds under the seal of the city therefor,” did not, alone, confer authority to subscribe to the stock of a railroad company, and issue bonds in payment thereof. The bonds upon their face showed that they were not issued for an ordinary municipal purpose. Lewis v. Shreveport, 108 U. S. 282.
2. But the act passed April 15th, 1869, and which became a law on March 3d, 1869, declared legal and binding all elections theretofore held in any county, city, or town, in reference to a subscription to the stock of the Cairo and St. Louis Railroad Company, and gave power to the County Court of any county, and the corporate authorities of any city or town in which such elections had already been held, and a majority of the votes cast were for subscription, to issue bonds for the amount voted, “notwithstanding any insufficiency, or informality, or irregularity in such election, or in the notice thereof." The election of April 6th, 1868, was something more than informal or irregular. It was insufficient, in itself, as authority for an issue of bonds. But its insufficiency was removed by the act of 1869, if the general assembly of Illinois had the power to do so. That it had such power cannot well be doubted. It
Opinion of the Court.
has been frequently decided by the Supreme Court of that State—and upon that point there has been no disagreement between that learned tribunal and the courts of the Union—that prior to the adoption of the Illinois Constitution of 1870, an incorporated city, its corporate authorities being thereunto authorized by the legislature, could make a subscription to the capital stock of a railroad company, without referring the question of subscription to a popular vote. Keithsburg v. Frick, 34 III. 405, 421; Quincy, Missouri & Pacific Railroad Company v. Morris, 84 Ib. 410; Marshall v. Silliman, 61 Ib. 218, 225; Quincy v. Cook, 107 U. S. 549. The legislature, there fore, could make the election of 1868 legal and binding as an expression of the popular will, and, upon the basis of the election thus legalized, empower or authorize the corporate authorities of the municipality to issue the bonds for the amount indicated by the popular vote.
There is no question here, such as has arisen in some cases in the Supreme Court of Illinois, and in this court, as to the power of the legislature, prior to the adoption of the Constitution of 1870, to compel the corporate authorities of a municipality to issue bonds in aid of the construction of a railroad. While the act of 1869 legalized the election of 1868, it did not require an issue of bonds, but only gave power to the corporate authorities of the municipality to do so; such authorities, in the case of an incorporated city, being, not the voters, but its mayor and council. Williams v. Town of Roberts, 88 Ill. 11; Quincy v. Cooke, supra. If the conditions attached to the subscription by popular vote, or by the ordinance of the city council of Jonesboro, had not been complied with when the curative act of 1869 was passed, then the railroad company would not have been entitled to have the bonds issued. This shows that the curative act does not belong to that class which the Supreme Court of the State, has, in some cases, held to be beyond the constitutional power of the legislature to pass.
3. The next question to be considered is whether the Constitution of Illinois adopted in 1870 took from the city of Jonesboro the power thereafter to issue the bonds voted by the Opinion of the Court.
election of 1868 and authorized by the act of 1869. strument declares that
“no county, city, town, township, or other municipality shall ever become subscribers to the capital stock of any railroad or private corporation, or make donation to or loan its credit in aid of such corporation : Provided, however, That the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipality prior to such adoption.”
We are of opinion that the right of the city to make the subscription in question, and to issue bonds in payment thereof, was saved by the proviso of that section. Before and at the time of the adoption of the Constitution of 1870, the city, by its corporate authorities, had power to subscribe to the stock of this railroad company. Power to that end was conferred by the act of 1869, which was itself based upon a vote of the people of Jonesboro. The vote, when taken, was, it is true, without legal sanction, but it was made effective as an expression of the popular will by the statute subsequently passed and in force before the Constitution of 1870 was adopted. The phrase “under existing laws," in the section of the Constitution referred to, relates, we think, to the time of the adoption of the Constitution rather than to the time when the vote of the people was in fact taken. Looking at the purpose of the proviso in the Constitution of 1870, we cannot suppose that the framers of that instrument intended to make a difference, in the operation of that proviso, between a subscription authorized by a vote legally taken, and a subscription authorized by a vote taken without legislative authority, but subsequently, and before the Constitution went into operation, legalized by a valid act of assembly.
4. But it is insisted that that part of the act of 1869 legalizing the election of 1868 and conferring authority to issue bonds for the amount voted at that election, was in violation of section 23 of article 3 of the Illinois Constitution of 1848, which provides that “no private or local law which may be Opinion of the Court.
passed by the general assembly shall embrace more than one subject, and that shall be expressed in the title.” The title of the act is “An Act to amend the charter of the Cairo and St. Louis Railroad Company.” The contention is, that the legalization of an election previously held, and at which the people voted in favor of a subscription of stock to that company and the granting of authority to issue bonds in payment of such subscription, is not a subject expressed by the title of the act. In this view we do not concur, and our conclusion is justified by the later decisions of the Supreme Court of Illinois construing a similar provision in the State Constitution of 1870. It was held in Johnson v. People, 83 Ill. 431, that the Constitution "does not require that the subject of the bill must be specifically and exactly expressed in the title; hence we conclude that any expression in the title which calls attention to the subject of the bill, although in general terms, is all that is required.” People v. Lowenthal, 93 Ill. 191. The authority of municipalities to make subscriptions in aid of the construction of railroads in Illinois has frequently, if not generally, been given in the charters of the respective railroad corporations. Whether a particular municipality has legislative authority for a subscription to the stock of a particular railroad company can be determined, ordinarily, by referring to the charter of that company. The general subject of municipal subscriptions to the stock of this particular company was, therefore, germane to and fairly embraced by the title of the act of 1869. Upon like grounds a provision in the same act legalizing a previous election at which the people voted in favor of a subscription and giving authority to issue bonds for the amount indicated
that the act in question was amendatory of the original charter of the company; this, because the validity of bonds so issued would depend upon the existence of legislative authority to issue them, and the existence of such authority would ordinarily be ascertained by reference to the charter and amended charter of the railroad corporation. Our de cision in Montclair v. Ramsdell, 107 U. S. 147, expresses substantially the same views, upon this general subject, as those Syllabus.
announced by the Supreme Court of Mlinois in Johnson v. People.
We are of opinion that no error was committed in dismissing the bill, so far as it questioned the authority of the State officers to assess, levy, and extend taxes in payment of the bonds held by the appellee Graves.
The decree is, consequently, affirmed. It is so ordered.
ZANE & Another v. SOFFE.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE
Argued October 24th, 1883. —Decided January 21st, 1884.
Evidence-Patent. 1. A patent was issued June 22d, 1865, to one Jennings (and subsequently
assigned to appellants), for an improvement in self-acting cocks and
for moving the valve. 2. Since the decision in Loom Company v. Higgins, 105 U. S. 580, it is Held,
That under a general denial of the patentee's priority of invention, evidence of prior knowledge and use, taken without objection, is competent at the final hearing, not only as demonstrative of the state of the art, and therefore competent to limit the construction of the patent to the precise form of parts and mechanism described and claimed, but also on the question of the validity of the patent.
Bill in equity, setting forth an infringement of a patent for