TO PROCURE THE LOCATION OF STATE INSTITUTION. Continued.
lation is not calculated to advance the credit and renown of the State,
and in the judgment of the court is unwise and impolitic. Burr et al.
v. City of Carbondale, 455.
2. And where, in pursuance of an act of the legislature, a city was
also authorized to give lands, etc., to aid in the establishment and
foundation of a university, and for that purpose purchased grounds,
etc., and submitted to vote of the people the question of issuing $30,-
000 of corporate bonds to make payment, which was carried, and there
appeared no fraud, combination or oppression, it was held, that these
last bonds were issued for a corporate purpose, and were valid obli-
gations against the city. Ibid. 455.
EFFECT OF IRREGULARITIES.
3. Where municipal bonds are issued in the exercise of a power
constitutionally conferred, they will be binding upon the municipal-
ity, although irregularities may have occurred in the form of the
notice of election and the like, not going to the power. The acts of
such bodies, done under lawful power and in substantial conformity
to the power, are binding. But where such bonds are issued under a
void authority, or without authority, they will be void, into whatever
hands they may come, and there can be no innocent holders of them.
Ibid. 455.
4. There is a distinction to be observed between the want of power
to issue municipal bonds, and irregularities in the exercise of the
power, the latter being unavailing against bona fide holders without
notice of the irregularity. Ibid. 455.
OF BONDS GIVEN TO FUND PRE-EXISTING DEBTS.
5. Where the legislature authorized the Governor to deliver up to
a city $100,000 of its bonds, which were valid obligations, upon the
payment of $30,000, and the city to raise the latter sum, under the act
of March 26, 1872, entitled "An act to enable counties, cities, town-
ships, school districts and other municipal corporations to take up
and cancel outstanding bonds and other evidences of indebtedness,
and fund the same," issued its bonds to the amount of $40,000, which
were sold, and the proceeds paid to the Governor, it was held, that if
the action of the legislature was in violation of section 23 of article 4
of the constitution, the city would, nevertheless, be liable upon the
bonds last issued by it. Ibid. 455.
6. Where a city issued $40,000 of its bonds under legislative au-
thority and upon a vote of its legal voters, whereby it was relieved
from the payment of over $100,000 of its prior indebtedness, it was
held, that the bonds last issued were for a corporate purpose. Ibid.
455.
FORFEITURE OF CITY CHARTER.
In what proceeding the question may be raised. See FORFEITURE, 1.
GENERALLY. See CORPORATIONS, 2; HIGHWAYS, 1, 2.
MUNICIPAL INDEBTEDNESS IN AID OF RAILROADS.
APPLICATION OF STATE REVENUE THERETO.
1. Under the act of 1869-the act not a contract between the State and
those holding such indebtedness. The act of April 16, 1869, entitled
"An act to fund and provide for paying the railroad debts of counties,
townships, cities and towns," does not constitute a contract between
the State and the creditors of the counties, townships, cities and
towns intended to be aided, for the reason that the constitution of
1848 prohibited the credit of the State from being given to or in aid
of any individual, association or corporation. Ramsey v. Hæger, 432.
2. Repeal of act of 1869 giving State taxes to municipalities owing
railroad indebtedness. Under the provisions of the constitution of
1870, and the revenue law in force July 1, 1873, so much of the act
of 1869 to fund and provide for paying railroad debts of counties,
townships, cities and towns, as requires the State revenue to be col-
lected on the valuations of the taxable property in the State remain.
ing, after deducting in counties, townships, etc., which have outstand-
ing indebtedness incurred in aid of the construction of railroads, the
increased valuation of the taxable property over that of the year 1868,
is abrogated, and can not be enforced. Ibid. 432.
1. After a vote without conditions. Where a proposition for county
subscription to a railway company to aid in building a road from
Quincy, by way of Payson and in the direction of Pittsfield, in Pike
county, without any other conditions, was carried by a vote of the
people, and it appeared that the railway company, by its charter, was
not bound to locate its road on that route, but had a large discretion
as to the route to be selected, it was held, that the board of supervisors,
in making the subscription, had the right to impose conditions as to
the permanent location of the road upon the route contemplated, and
to make the delivery of the county bonds to depend upon the same,
and that the company, by accepting such conditions, was bound by
them, in respect to its rights under the vote and subscription. Alley
et al. v. Board of Supervisors of Adams Co. 101.
2. Effect of non-observance of condition. Where, by the terms of a
county's subscription in aid of a railway company, the permanent
location of the road by a certain route was an indispensable prerequi-
MUNICIPAL SUBSCRIPTION. OF CONDITIONS IMPOSED. Continued.
site to the delivery of the first ten per cent of the county bonds, and
the company represented and certified to the permanent location of
its road as it was contemplated in the conditions of the subscription,
and on the faith of it obtained ten per cent of the bonds: Held, that
this, as against the right of the company to demand the remaining
bonds, would be taken as the permanent location of the road, and if
the company afterwards relocated its road upon a materially different
route, it could have no claim for the delivery of the remaining bonds,
it not having performed the conditions on which the subscription was
dependent. Alley et al. v. Board of Supervisors of Adams Co. 101.
UNCONDITIONAL SUBSCRIPTION.
3. Fixes rights of creditors to share in as assets. Where the county
court of a county makes an unconditional subscription to the capital
stock of a railway company under legal authority, the contract will
be complete, and the creditors of the company may rely upon it for
payment of their debts as implicitly as upon any other assets of the
company, although the company may subsequently abandon all pro-
ceedings under its charter on account of its insolvency. Morgan
County et al. v. Thomas et al. 120.
4. Rights of bona fide holder. After the making of an unconditional
subscription by a county to a railway company, and the issue of its
bonds and placing them in the hands of a depositary, the company
gave an order for $2000 of them to a bona fide creditor in payment of
his debt, who transferred his order to a third person purchasing the
same, it was held not material whether the delivery to the depositary
was upon conditions or not, as the orders operated as an equitable
assignment of $2000 of the subscription, which the county could not
disregard after notice of the claim, and was bound to pay to the holder
of the order, because its subscription was unconditional. If the bonds
were delivered unconditionally in payment of the subscription, the
holder was entitled to the bonds called for in the order, from the de-
positary, but if not so delivered, the county was still bound on its
subscription. Ibid. 120.
RIGHT TO TRANSFER TO ANOTHER COMPANY.
5. Where a railway company, to whose capital stock a county had
made an absolute and unconditional subscription of $50,000, had
its franchise and road sold under a deed of trust, and abandoned its
organization, becoming insolvent, and the franchise, by act of the leg-
islature, and sale, was transferred to a new and different company,
which completed the road, it was held, that the county had no power
to donate and deliver a portion of its bonds, issued on its subscription,
to the new company as against the rights of creditors of the old com-
pany, and that such could not be done even under legislative authority,
as they were trust funds for the payment of debts. Ibid. 120.
MUNICIPAL SUBSCRIPTION. Continued.
CHANGING TERMS OF SUBSCRIPTION.
6. Power of president of company to consent thereto. The pres
ident of a railway company has no authority, by virtue of his
office, to consent that a subscription to the company, which is abso-
lute and unconditional, and therefore constituting a part of the assets
of the company, shall be changed so as to become conditional, to the
prejudice of the company or its creditors. The president might bind
himself, and so might the creditors or stockholders of the company
bind themselves, to treat such a subscription conditional so far as
their respective rights are involved. Morgan County et al. v. Thomas
et al. 120.
CONSTRUCTION OF AN ORDER IN RESPECT THERETO.
7. Whether the delivery is conditional. An order of a county court
for the issue and delivery of bonds in payment of a subscription to a
railway company, recited that the president of the company had cer-
tified to the court that the company had placed their road under con-
tract, to be completed by a given day from a point in an adjoining
county to a point in the county of the court, and that it was provided
in the contract for construction of the road, that the bonds of such
county should be expended for work done in that county, and not
elsewhere, etc., and being satisfied, etc., concluded: "It is, therefore,
ordered that there be delivered to the" company "the amount of $50,-
000 in bonds of this county of this date:" Held, that such order was
not qualified with any conditions that the bonds should be expended
in constructing that part of the road in the county. Ibid. 120.
IN THE COUNTY COURTS. See ELECTION, 8.
MUST BE PROXIMATE CAUSE OF INJURY.
1. It is a principle of jurisprudence, under both the civil and
common law, that, to entitle a party to recover for damages alleged
to have been sustained in consequence of the negligence of another,
there must not only be negligence in fact, but it must have been
the proximate cause of the injury. Chicago and Alton Railroad Co.
v. Becker, Admr. 25.
2. The general rule. Based upon the leading and governing prin
ciple that the defendant's negligence must be the proximate cause of
the injury, is the common law rule, that, although there was negli
gence on the part of the defendant, yet, if there was also intervening
negligence on the part of the plaintiff, but for which latter the mis-
fortune of the plaintiff would not have happened; or, if the plaintiff,
NEGLIGENCE. CONTRIBUTORY NEGLIGENCE.
by the exercise of care and caution, could have avoided the conse-
quences of the defendant's negligence, and he fails to exercise that
care and caution, he can not recover. Chicago and Alton Railroad Co.
v. Becker, Admr. 25.
3. Subject to exceptions. This general rule, like most others, admits
of exceptions and qualifications, as, for instance, where the party
injured might have avoided injury by the exercise of ordinary care and
caution; but when, as a direct and immediate result of the defendant's
negligence, he is placed in a position of compulsion and sudden sur-
prise, bereft of independent moral agency and opportunity of reflec-
tion, the law will not hold the injured party responsible for contrib-
utory negligence. Ibid. 25.
4. There must be a causal connection between the plaintiff's neg-
ligence and the injury to relieve the defendant from liability for his
negligence. The plaintiff, as a general rule, must be a person to
whom the alleged contributory negligence is imputable, excluding,
therefore, persons distracted by sudden terror, persons of unsound
mind, drunkards, and persons who, from their tender age, are wanting
in the requisite capacity to exercise discretion. Ibid. 25.
5. Capacity and discretion of children to exercise care, a question of
fact. There is no inflexible rule of law by which to determine the
capacity of children for observing and avoiding danger, as affecting
the question of contributory negligence in case of an injury to them,
but it is a question of fact in each case for the jury, to be determined
from the facts and circumstances in evidence, the law holding them
responsible only for the exercise of such measure of capacity and
discretion as they possess. Ibid. 25.
6. The rule applied in particular cases. In this case, the deceased
was a boy of the age of six or seven years, and it appeared that the
defendant's train, which ran over and killed him, was not running at
an unusual rate of speed, or at a rate prohibited by the ordinance of
the town; that the whistle was sounded at the proper place, and a
bell kept continuously ringing until the crossing was passed where
the accident occurred; that the deceased heard the whistle, and, in
company with two other boys, started for the crossing; that the other
two crossed over the track, and the deceased, in attempting to follow,
when the engine was but about sixty feet from him, stumbled and
fell upon the track, and that those in charge of the train used every
exertion to check the train, which was a heavy freight train, but could
not in time to avoid the accident: Held, in an action by the admin-
istrator of the deceased against the company to recover damages for
the killing, that a recovery by the plaintiff could not be sustained
Ibid. 25.
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