County of Livingston v. Darlington

delivered the opinion of the court.

The court is asked in this action to declare an act of the General Assembly of Illinois to be repugnant to the Constitution of that State. The act referred to was approved March 5, 1867. It established a State Reform School for- the discipline, education, employment, and reformation of juvenile offenders and vagrants, between the ages of eight and eighteen years. The management of the institution was committed to a board of trustees, appointed by the Governor by and with the consent of the Senate. Cook County was excepted from the operations of the act, because a similar institution had been previously established in that county.

On the 19th of April, 1869, —the institution not then having been permanently located, — an amendatory act was passed, which, among other things, declared, —

That any township, county, town, or city might make a subscription in aid of the school, in money, bonds, or lands, for the purpose of securing its location within its limits;

That such subscription, if by a county, should be made by resolution,- to be adopted by a majority vote of its Board of Supervisors, at a regular or special meeting thereof; if by a township, by resolution of the supervisor, town clerk, and assessor, acting as a board for the township; if by a town, by resolution or ordinance of its board of trustees; and if by a city, by a resolution or ordinance passed in the usual manner.

That no subscription should be made by a township, town, or city, except in pursuance of a popular vote, at an election called and held in the manner specified in the act; and,

That the township, county, town, or city making such subscription might provide for the payment of the principal and interest thereof, by tax upon the taxable property of such county, township, town, or city, to be levied and collected as other taxes. Id. et seq.

Under this legislation the county of Livingston, through its ÜBoard of Supervisors, in consideration of the location of the school within its limits, and to aid in the erection of the necessary buildings, donated the sum of $50,000, and, in .payment thereof, issued county bonds, with interest coupons attached. The bonds, dated July 15, 1869, signed by the chairman and

• The institution went into operation as contemplated by the legislature.

The present action.was brought by Darlington upon some of the interest coupons, he, it is agreed, having become the legal holder thereof, in good faith, for a valuable consideration1.

The Circuit Court gave judgment against the county.'

Upon this writ of error the controlling question presented for our determination is whether the acts of the General Assembly of Illinois, under which the bonds were issued, are, as to the provisions authorizing municipal donations to secure the location of the Reform School, repugnant to the fifth section of article nine of the Constitution of the State, ratified in 1848.

That section declares that “ The corporate authorities of counties, townships, school districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect- to persons and property within the jurisdiction of the body imposing the same. And the General Assembly shall require that all the property within the limits of municipal corporations, belonging to individuals, shall be taxed for the payment of debts contracted under authority of law.”

The argument of counsel in behalf of the county consists mainly of two propositions, viz: —

That according to the settled construction by the .Supreme Court of Illinois of the State Constitution, at the time the bonds in suit wére issued, the General Assembly could not invest the corporate authorities of counties or other municipal organizations with power to assess and collect taxes for any except corporate purposes;

In determining whether the General Assembly of Illinois has transgressed the fundamental law of that State, we recall what this court said in Fletcher v. Peck ( 6 Cranch, 128 ), where it became our duty to ■ consider whether a statute of Georgia was in conflict with its Constitution.

“ The question,” said Mr. Chief Justice Marshall, “ whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”

This language was cited with approval in Chicago, Danville, & Vincennes Railroad Co. v. Smith ( 62 Ill. 268 ), where the Supreme Court of Illinois added: —

“Enough has been cited to show the firm position of the judiciary, that the courts ought not, and in justice to the rights of a co-ordinate department of the State government cannot, declare a law to be void without a strong and earnest conviction, divested of all reasonable doubt, of its invalidity.” Lane v. Dorman, 4 Ill. 238 ; People v. Marshall, 6 id. 672.

Adhering to these doctrines ■ as vital in the relations which exist between the legislative departments of the several States and the courts of the Union, we first inquire as to the state of the law in Illinois, as declared by its highest judicial tribunal, at the time (July 15, 1869) the bonds in suit were issued and put upon the market for sale.

Prior to that date it seems to have been settled by that court, —

2. In Johnson v. County of Stark (24 id. 75), re-affirmed in Chicago, Danville, & Vincennes Railroad Co. v. Smith, supra; Perkins v. Lewis, 24 Ill. 208 ; Butler v. Dunham, 27 id. 473; Town of Keithsburg v. Frick, 34 id. 405, and other cases, that the subscription by a county to the capital stock of a railroad company engaged in the construction of a road running through the limits was a corporate purpose, for the accomplishment of which the corporate authorities of the county could, under legislative sanction, assess and collect taxes upon persons and property within its jurisdiction ; that such aid was a corporate purpose, because in the completion of such improvements “ the whole community is either immediately or remotely interested, those near the line on which it passes in a larger, and those more remotely situated in a less degree, but all participate in its benefits ; ” that among the corporate purposes for which a county may be taxed are court-houses, jails, poor-houses, the opening and keeping of common highways, and the erection and maintenance of bridges.

3. In Taylor v. Thompson ( 42 Ill. 9 ), followed by Henderson v . Lagow (42 id. 361), Briscoe v. Allison (43 id. 291), Misner v. Bullard (43 id. 470), and Johnson v. Campbell (49 id. 317), that a tax levied by a township under legislative authority, and in pursuance of a popular vote, to pay bounties to persons who should thereafter enlist or be drafted in the army

In Taylor v. Thompson (supra) the court, by way of illustrating the doctrine there laid down, said : “ The creation of a police force, the establishment of a reform school for juvenile offenders, or a hospital for persons ill with contagious disease, would not directly benefit a non-resident taxed for their support; and yet no person would deny that these are proper ends of municipal taxation, and justly included in the phrase ‘ corporate purposes.’ ”

This analysis ’of the decisions of thé Supreme Court of Illinois sufficiently indicates what was, at the time these bonds were issued, the established authoritative exposition of the phrase “ corporate purposes.” It is to be observed that when these bonds, by the joint action of the county and State authorities, were transmitted to the State of Pennsylvania for sale to its citizens, there was in the published decisions of the State court the broad declaration that “ the establishment of a reform school for juvenile offenders ” was beyond question a proper object of municipal taxation, and was a corporate purpose within the meaning of the constitution.

In Chicago, Danville, & Vincennes Railroad Co. v. Smith, already cited; it was ruled that a township donation, made under legislative authority, and with the sanction of a popular yote, was a corporate purpose for which a tax could be assessed by the proper authorities of such township. The court there said: “ It is contended that the appropriation was not for a corporate purpose. If it was for a public purpose — for the benefit of the inhabitants of the- municipality — then it would he for a corporate purpose. The latter cannot be distinguished from the former; and all that we have said in relation to the public purpose of the tax will apply with equal force to a corporate purpose. ... In Taylor v. Thompson ( 42 Ill. 9 ) this court defined a corporate purpose to mean ‘ a tax to be expended in a manner which shall promote the general prosperity and welfare of the municipality which levies it.’ We accept this definition,” &c. 74 Ill. 277 ; Town of Middleport v. Ætna Life Insurance Co., 82 id. 562; Lippincott v. Town of Pana, decided October, 1879.

We come now to a case which, with entire respect for the very able and enlightened tribunal by which it was determined, we are constrained to say does not seem to be in line with its previous decisions, or with subsequent decisions to which we shall presently refer. We allude to Livingston County v. Weide ( 64 Ill. 427 ), decided more than three years after the bonds and coupons in suit were issued under legislative authority, and their proceeds received and used by the State. That was a suit in chancery, commenced in the State court by the board of supervisors of Livingston County against the county treasurer, to enjoin the latter from paying out money which had been collected to meet the interest upon the identical bonds whose validity is here questioned. None of the holders of the bonds were made parties to the suit. No attempt was made to bring them before the court in any form. It is not, therefore binding upon them as a final adjudication of the questions now before us. Brooklyn v. Insurance Company, 99 U. S. 362 ; Pennoyer v. Neff, 95 id. 714; Empire v. Darlington, supra, p. 87.

Upon these grounds the bonds issued by the county were held to be null and void, by whomsoever owned. It is to be observed that the court, in that case, refers, but without disapproval, to the definition of corporate purposes as given in Taylor v. Thompson, and, recognizing the.-inherent difficulty of laying down any precise rule applicable to every case, says : “ The true doctrine is, such purposes, and such only [are corporate purposes] as are germane to the objects of the creation of the municipality, at least such as have a legitimate connection with those objects, and a manifest relation thereto.”

The binding authority of that case is disputed by defendant in error upon the ground that his rights accrued long prior to its decision, and under a settled construction of the State constitution favorable to the validity of the acts of 1867 and 1869. He further contends that' the rule announced in Livingston County v. Weide was substantially abrogated, if not entirely overthrown by subsequent decisions of the same court, particularly those in Burr v. City of Carbondale ( 76 Ill. 455 ) and Hensley Township v. The People, 84 id. 544 .

In Burr v. City of Carbondale the question presented was whether a tax, levied by a city under legislative authority, to pay interest on city bonds, issued to secure tbe location, within its limits, of a State institution, called the Southern Normal Uni

As to the objection that the bonds, under the State Reform School act, were issued without taking the sense of the people, it is sufficient to say that the board of supervisors were the corporate authorities of the county, and that the Supreme Court of Illinois had decided, under the constitution of 1848, as early as Town of Keithsburg v. Frick ( 34 Ill. 405 ), and again in Marshall v. Silliman (61 id. 218), and, finally, in 1870, in Quincy, Missouri, and Pacific Railroad Co. v. Morris (84 id. 411), that it was “ by no means a necessary element in these [municipal] subscriptions that there should be a vote of the inhabitants of a town or city authorizing them. It is competent for the legislature to bestow the power directly ” upon those who, in legal contemplation, were the corporate authorities of the municipality. Roberts v. Bolles, supra, 119.

In Hensley Township v. The People, supra, it was held, upon the authority of Burr v. City of Carbondale, that a county tax levied in payment of bonds issued, under legislative authority, to secure the location, within that county, of a State Industrial university, was a tax for a corporate purpose.

Upon this review of the decisions of the Supreme Court of Illinois our conclusion is that, testing the validity of these bonds by the decisions of that tribunal, rendered prior to and unmodified at tbre date of their issue, we would be obliged to hold they were issued for a corporate purpose. And, while the doctrines announced in Livingston County v. Weide, if

Had the acts under which these bonds were issued provided for the establishment of a reform school in Livingston County, for the discipline, education, employment, and reformation of juvenile offenders and vagrants within its limits, it would not be claimed, in view of the course of decisions in the State court, that the legislature has transcended its constitutional power. That the school established was a State institution, to be maintained after being established at the expense of the State, but in the benefits of which the county where it was located could participate, does not, it seems to us, affect the question of legislative power. It is a matter rather of public policy or expediency, the determination of which, the power existing, belongs to the legislative department. It was well said by the Supreme Court of Illinois, that “ in the enactment of laws the legislature must exercise its judgment and discretion. As to questions of pure policy and expediency, no express or necessarily implied constitutional provision intervening, it is the sole judge. It has also the undoubted right to take a com

We express no opinion as to what, in our judgment, is the true exposition of those parts of the Illinois Constitution to which reference has been made, or as to the wisdom or propriety of such legislation as that under examination.

Our purpose has been to ascertain what was the law of the State as expounded by its highest judicial tribunal. And while, perhaps, the judgment of the Circuit Court might, in view of our own decisions, be sustained upon other grounds, it is sufficient for the disposition of this case to say, that the adjudications of the State court do not show any such settled or uniform construction of the State Constitution upon the questions here involved as would justify us, with proper respect to the legislative department of Illinois, in holding that it had transgressed her fundamental law.

Judgment affirmed.