Enfield v. Jordan

delivered the opinion of the court.

This is a suit brought by C. N. Jordan against the town of Enfield to recover the amount of twenty-two interest coupons for fifty dollars each, made by the town on the 1st of January, 1871, and payable in January and July, 1881, 1882, and 1883. The defendant pleaded non-assumpsit, and on the trial á jury Avas waived, and the cause Avas tried by the court, consisting of the circuit and district judges. A finding of the facts was made, and the judges being divided in opinion as to certain questions of law arising thereon, judgment Avas rendered in favor of the plaintiff, in accordance with the opinion of the presiding judge. The principal question of laAv Avas, whether an “ incorporated town,” as Enfield Avas, had poAver to make a donation of its bonds to the railroad company. Questions of estoppel were also raised, as hereafter noticed.

The facts found by the court, in accordance Avith an agreed statement presented by the parties, are substantially as follows :

■ 1. That the town of Enfield was incorporated under an’act of the General Assembly of the state of Illinois, approved March 15th, 1869. This act is set out in full, and is entitled “ An act to extend the corporate poAvers of the toAvn of En-field.” It is an ordinary town charter, making the toAvn a corporation by the name and style of “ The Town of Enfield.” Its territorial limits Avere then prescribed, being one mile square, and the usual corporate porvers Avere conferred. A toAvn council, consisting of five trustees, together Avith a police magistrate, a treasurer, and a toAvn constable, Avere directed to be elected annually, on the 1st Monday of May. The powers given to the toAvn council were similar to those usually conferred upon municipal bodies; as, the poAver to levy and collect taxes; to appoint a clerk, supervisor of streets, and other officers; to appropriate moneys to pay the debts and expenses of the town ; to make regulations for securing the general health; to provide a supply of water; to make side-walks, and to open, grade, pave, and repair streets; to establish- markets; to regulate the public grounds; to organize a fire department ; to regulate the police, &c.

.The findings next set forth an amendment to the railroad charter, approved February 24th, 1869, by the tenth section of which, authority was given. to “ any village, city, county, or township organized under the township organization law, or any other law of the state, along or near the route of the railway, ... or anywise interested therein,” to subscribe to the stock of the railroad company, or make donations to it to aid in the construction and equipment of its road, provided such subscription or donation was sanctioned by an election of the people; This section gave power to issue bonds for such subscriptions or donations; but-towns are not included therein by name.

The court further found that, on the 1st of January, 1871, the town of Enfield issued and delivered 'to the officers of the Springfield and Illinois Southeastern Kailway Company, a company formed by consolidation with the Illinois Southeastern-Kailway Company, the bonds and coupons now in controversy, copies of which are attached; that said bonds and coupons were

The findings further set forth copies of the-order of the town council of Enfield, made June 10th, 1870, appointing judges of election to be held in the town on the 11th of the same month, and a copy of the returns of the vote at said election for the purpose of determining whether the town would donate the sum of §7000 to the Springfield and Illinois Southeastern Railway Company, the result of which was — for donation 64 votes, against it, 1 vote; and that this was the only election held in relation to said donation.

The court further found that at the June term, 1880, of that court, judgment for the plaintiff against the defendant was rendered upon coupons then due, dotached from the same bonds from which the coupons now sued on were taken. It was also admitted by the plaintiff that the Enfield town bond represented by Post in the case of Welch et al. v. Post, 99 Ill. 471 , was one of the series of seven bonds in controversy in this suit, but as to wliich bond it was the plaintiff disclaimed any knowledge.

Upon these facts the judges' who tried the cause have certified a difference of opinion upon the following questions, to wit:

1st. Whether the incorporated town of Enfield had power to vote and issue the bonds and coupons in controversy under any of the provisions of the acts above specified.

2dly. More- particularly, whether said town had said power under the 10th section of the amendment of the railway company’s charter, approved February 24, 1869.

3dly. Whether said town was not estopped from further defence by the litigation theretofore had between it and plaintiff.

4thly. In case there was power in the town under said, laws to vote and issue said bonds and coupons, whether one of said

1. As to the first question, it is clear that the town derived no authority to issue the bonds from anything contained in its own charter. But, by the 11th section of the act incorporating the railway company, power is given to any incoi’porated city or town through or by which the railroad might run to make donations to the company, and to pay the same by taxes assessed by the county clerk at the request of the company. No authority, however, was given to issue bonds in payment of such donations. The 10th section of the amending act, approved February 24,1869, contains the only authority which can be invoked for that purpose. But that section does not mention towns by name. It declares “ that any village, city, comity, or township . . . along or near the route of said railway or its branches, or that are in anywise interested therein, may in their corporate capacity subscribe to the stock of said company, or make donations to said company, to aid in constructing and equipping said railway; ” with a proviso for holding an election on the subject, and authorizing the issue of bonds in payment, “said bonds to be signed, in case .of a village, by the' chairman of the board of trustees thereof; in case of a city, by the mayor thereof,” &c. The town of Enfield is not a township, nor a county, nor a city. If it is within the purview of the act it must be because it is a village. The question then arises, is the incorporated town of Enfield a village within the meaning of the act ?

This question depends upon the use of words “ town ” and “ village ” in the laws of Illinois. The general and popular distinction between them in English speech will not carry us far towards a solution. The dictionaries tell us that the word “town” signifies any walled collection of houses. (Johnson.) But that is its antique meaning. By modern use, it is said to be applied to an undefined collection of houses, or habitations ; also to the inhabitants; emphatically to the metropolis. (Richardson.) Again, a town is any collection of houses larger than a village ; or any number of houses to which be

In seeking aid from collateral sources, we shall probably derive more'light from the political use of the terms “town” and “ village” in this country, than from general lexicography. In New England and New York, towns are the political units of territory, into which the county is subdivided, and answer, politically, to parishes and hundreds in England, but are vested with greater powers of local .-government. In Delaware the counties are divided into hundreds, the words “ town” and “ village " being indiscriminately applied to collections of houses. In Maryland and most of the Southern States, the political finit of territory is the county, though this is sometimes divided into parishes and election districts for limited purposes. The word “ town ” is used in a broad sense to include all collections of houses from a city down to a village. Thus, in Yirginia, bjr an act passed in 1778, on the death or removal of “ any one of the trustees and directors of the several towns within this state, not incorporated,” provision is made for filling the vacauc3r; by act of 1793, “electors of towns entitled to* representation in the House of Delegates” are authorized to vote.at their respective court-houses for representatives -in Congress; by the Devised Code of 1819, “trustees of the respective unincorporated towns of this Commonwealth ” are .empowered to make by-laws to prohibit horse racing in the streets of the town; by the Devised Code of 1849, in the chapter entitled “Of Towns,” the council and board of trus

In New Jersey, Pennsylvania, Ohio, Indiana, Michigan, and Illinois, the subdivisions of a county, answering to the towns of New England and New York, are called townships, though the word “ town ” is also applied to them in Illinois. In these states the words “ town ” and “ village ” are indiscriminately applied to large collections of houses less than a city.

These results are gathered from an examination of the laws and constitutions of the states named; and we should have no hesitation in saying that,'in Illinois, an incorporated town and an incorporated village were one and the same thing, were it not for the decision of the Supreme Court of that state to the contrary in the case of Welch v. Post, 99 Ill. 471 , already alluded to, which decision was made in relation to the identical bonds in question in this suit.

That case arose upon a bill filed in the Circuit Court of White County by citizens, property owners, and tax-payers of the town of Enfield against the village and county collectors of taxes and the' unknown holders of the bonds, to restrain the collection of taxes for their payment, on the ground that there was no authority of law to issue them. The bill prayed that the bonds might be declared null and void in whosesoever hands they might be. A decree was taken for confessed in April term, 1877; but, at the October term, 1879, one Post, of New York, presented a petition, stating that he was the owner of one of the bonds, and praying that the cause might be reinstated, which was done. The cause was then tried upon an agreed statement of the facts (much the same as in the present case), and the Circuit Court decided against the plaintiffs, and

Tavo justices, Dipkey and Sheldon,, dissented from this opinion, and adhered to an earlier ruling of, the court made in 1877, in the case of Martin v. The People, 87 Ill. 524 , in which it was adjudged that the terms “ towns and. villages ” are used synonymously in the laws of Illinois. The proceeding in that case was instituted by the collector of Cook County, for the collection of certain special assessments levied by the town of Lake upon the real estate within its bounds, the mode of collection pursued being that pointed out in article IX of the act entitled “ An act to provide for the incorporation of cities and

We have quoted more fully from the judgment in this case, because it is not only directly in point, but it show's historically • the use -of the terms town and village in- the legislation ■ of Illinois. Its bearing on the present case is enhanced by the fact that the towns of Lake and Enfield were incorporated at the same session of the legislature, - and invested with like powers and' form of organization.

Both of the cases to which we have referred arose after the bonds and coupons now in controversy were issued, and neither of them can control our decision upon the rights of the parties

An additional point, however, is made in relation to the authority of the town to issue the bonds under consideration. Supposing that such authority is found in the ac(;s referred to, it is still contended that it was abrogated by the constitution of-the state adopted on the 2d day of July, 1810. By a section of that constitution it is declared that ic no county, city, town, township, or other municipality, shall ever become subscriber 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 such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption.” It is urged that -vVhilst the proviso of this section saves the power to make

' To tbe first and second questions, therefore, our answer is; that tbe town of Enfield bad power under tbe 10th section of tbe amending act approved February 24th, 1869, to vote and issue tbe .bonds and coupons in controversy.

Tbe third question is, whether tbe town was not estopped' from further defence by tbe previous litigation in this [tbe circuit] court upon the pleadings and- facts stipulated .and judgment rendered, therein ? Tbe stipulation and' finding on which this question is raised is as follows, to wit: “That at tbe June' term, 1.d. 1880, of this court judgment for tbe plaintiff against tbe defendant herein was rendered upon coupons then due, detached from tbe same bonds from which tbe coupons, in evidence in this suit were taken.” Tbe coupons on which said, former judgment was rendered were different coupons from; those involved in.the present suit. This.suit, therefore, was brought upon a different cause of action from that upon which the former suit was brought. Whether the same issues were , raised and passed upon in that suit which are raised in this,'. the stipulation does not inform us. The question is too general in its terms to admit of a precise answer. If the defend-' ant sought to set up in this suit some , new-defence, which was not made in the former one, and not' necessarily decided therein, it should have been aJowedto<do so, under the ruling of this court in Cromwell v. Sac County, 94 U. S. 351 , 354. But we are left in entire ignorance • on the subject. As no

The fourth and last.question propounded by the judges 'below is, whether one of the bonds' and the coupons thereto belonging are void in the hands of the plaintiff in this suit-by reason of one Post having litigated it in the state courts, of1 Til in rvisi The' finding on which this question is based is as follows, to wit: “ It is admitted by the plaintiff in this suit that the Enfield town bond represented by Post in the. case of Welch et al. v. Post, 99 Ill. 471 , was 'one of the series of seven bonds now in controversy in this suit; but in making said admission plaintiff disclaims any knowledge of which one it, was,' or any. connection with said suit.” It is rather a singular proceeding to refer this court to a volume of reports to-eke -out the record on which it. is to pass judgment. The reported case is not even printed in the record before us, and we do not feel called upon to give it a, very critical examination in refer-.ence to the point now raised, and might well refuse to consider it at all. It consists merely of the opinion of the court already referred to and commented on.. The nature and object of the suit and the principal proceedings had therein have already been stated. For the purpose in hand, it is sufficient to remark that the bond held by Post was not matured, and will not mature till the year 1891, and, therefore, a decree against Post has no binding effect on ■ a subsequent holder of the bond purchasing the same before maturity, and without notice. To have made the decree effectual against the bond itself, Post should have been required to produce it in court, in order that it might have been cancelled. If he parted with the bond, pending suit, it would make no difference. The subject of- notice by lis pendens in relation to negotiable securities was considered by this court in the cases of Warren County v. Marcy, 97 U. S. 96 , and Carroll County v. Smith, 111 U. S. 556 , and needs no further discussion. The general rule announced in those cases is, that the pendency of a suit relating

But it is contended by the plaintiff in errpr that, the bonds on their face show an illegality as to the place of payment sufficient to put a purchaser upon inquiry, and, therefore, to subject him to notice of the proceedings by which the bond held by Post was declared void. This argument is based upon the fact that the bonds are payable not at the office of the treasurer of the town of Enfield, but “ at the First National Bank of Shawneetown, Illinois,” the principal town' in the adjoining county, about thirty miles’ distant, and the terminus of the railroad passing through Enfield. As the statute which gave the authority to issue the bonds is silent as to the place of their payment, we are at a loss to see how the place, named therein can have the effect supposed. Counsel admit' in argument that it does' not render the bonds void, but insist that the town had no power to make them payable at any other place than'the office of-the town treasurer. For this they'cite The People on the relation of the Peoria and Oquawka Railroad Company v. The County of Tazewell and its Supervisors, 22 Ill. 147 ; City of Pekin v. Reynolds, 31 Ill. 529 ; and Sherlock et al. v. The Village of Winnetka, 68 Ill. 530 . In these cases, it is true, the Supreme Court of Illinois-held that a muni-'. cipal corporation cannot .lawfully make its obligations payable at any other place than the office of its treasurer; but the court also held that the making of -them payable elsewhere doés not affect their validity. The case, last cited was a bill,by

Now, giving to these cases all the effect due to them, we do not see how the fact that the bonds and coupons of the town of Enfield were made payable at Shawneetown, can prejudice .a Ijonafide holder thereof, or charge him with notice of prior proceedings against other parties who once held them.. The most that can be said is, that a person purchasing the bonds may bé bound to know that the place named for payment therein is not binding on the county, and that, though made payable elsewhere, their legal place of payment is at the office of the treasurer of Enfield. The question whether a municipal corporation,' authorized to issue bonds, may, or may not, make them payable at a place other than its own treasury, (there.being no statutory direction on the subject,) is one of general jurisprudence, in reference to which the courts of Illinois take a particular view. Other courts take a different view- There is nothing in the constitution of the municipal bodies of that state, so far as this particular power is concerned,

■ The answer to the fourth question, therefore, is, that one of' the bonds,, and the coupons thereto belonging, are not void in. the hands of the -plaintiff by reason of Post having litigatéd the bond in the state courts of Illinois.

The judgment of the Ovrcuit Cowrt is affirmed.