Larrison v. Peoria, Atlanta & Decatur Railroad , 77 Ill. 11 ( 1875 )

Mr. Chief Justice Walker

delivered the opinion of the Court:

This was a bill in chancery, filed by appellants, in the Logan circuit court, on behalf of themselves and other taxpayers, against the railroad company, town collectors and others, to restrain the collection of a tax.

The bill alleges that the town auditors in the towns of Atlanta and Oran, on the 12th of August, 1873, made a certificate that there ivas due certain sums, to be paid for interest on bonds issued to aid in the construction of the railroad. The bill charged that there was issued by the authorities $37,000 of bonds, and that the town authorities had delivered a portion, and that the president of the railroad company had possessed himself of another portion, without the consent of the.supervisor or town clerk; that the town auditors had certified that the interest on the bonds was a town charge, and delivered the same to the county clerk, to be extended as a tax on the real and personal property in the town; and that the county clerk claims that he, in the discharge of his duty, is compelled to extend the same on the taxable property in the towns.

The bill charges that the railroad company claims to be organized under a special law of the General Assembly, under which the officers acted izz constructing the z*oad, but "complaizzants deny that it was ever constitutionally adopted by the General Assembly, and claim that all acts pez-formed izi the levy of this tax aze therefore void; that the z-oad is not completed, azzd the officezs of the company z-epresented that they would proceed promptly to construct, the railroad from Peoria, by way of Atlanta, to Decatur, and that any bonds that should be voted therefor should be faithfully devoted to the cnnstvuctiozz of the z’oad, azzd the company had, or soozz would have, sufficient funds for that puz-pose; that all of these representations were false, and were made knowing them to be false, and with intent to cheat and defraud the town and taxpayers, and to obtaizz the bozzds without a valuable consideration thez’efor.

It is chaz-ged that it never was intended in good faith to complete the z’oad; that it is not completed; that the work has not been prosecuted promptly and in good faith; that the officers of the company still hold the bonds, or have convez-ted them to their own use, and that they have sold the franchises and abazidoned the construction of the road. On filing the bill, a temporazy injunction was issued staying the collection of the tax.

The railroad company, Dunham, Dills, Lambert and the towzi of Atlazzta answered the bill, the answer being; verified bv the affidavit of Dills and Dizzzham, to be used on a znotiozz to dissolve the injunction. Prior to the hearizzg of that znotiozz, complainants moved to suppress the answer, because, so far as it related to the railroad company, it was not under the seal of the company, and was not signed by one of its officers; and as to the answer of the town of Atlanta, because it Avas not signed by an officer of the toAvn. This motion Avas overruled. The answer denies all of the material allegations of the bill.

Subsequently, a motion to dissolve the injunction came on to be heard, on bill, answer and affidavits filed. The court dissolved the injunction and the bill Avas dismissed, and complainants bring the case to this court by appeal.

The ansAA'er, amongst other things, stated that the bonds Avere not in the hands of the company, but had been sold and delivered to innocent purchasers. And this and other allegations in the answer Avere fully sustained by the proof, and appellants make no point on that question in their argument, but insist that the court erred in refusing to strike the ansAver from the files, and in assessing damages for the Avrongful suing out of the injunction.

The ansAAer Avas called for Avithout oath, and Avas only sworn to for the purpose of being used as an affidavit on the motion to dissolve. Such an answer has always been held to be a mere pleading, only denying the allegations of the bill and putting complainant to his proof, and to disclose any special defense he may rely upon. And 'although it is more regular to require a corporation to ansAver under seal, Ave feel no inclination to reverse a cause on that ground alone. "Where the evidence sufficiently sustains a full ansAver, to which there is no objection, we would not be Avarranted in reversing because one of the defendants had failed to attach its seal. There is no suggestion that this ansAver is not sufficient as to Dunham, Dills and Lambert. It sets up the entire defense, Av'nich applies as well to the railroad company and the toAvn of Atlanta as it does to them, and the same is true as to the officers having charge of the collection of the taxes.

Had the railroad company set up a defense peculiar to themselves, then it would have been different. The proceeding was virtually against the bondholders, and the railroad was but a nominal party; and had the railroad company made no effort to answer, but had been defaulted, still the court would not have continued the injunction against the collection of the monev to pay the interest to the bondholders, unless it had been apparent from the evidence that the bonds were void, or some equitable grounds were shown against the bondholders. And as the evidence required the dissolution of the injunction, even if the railroad company had been defaulted, we must decline to reverse on the ground that the answer of that company was not under seal. It might be treated as a nullity, and as not being on file, and still the dissolution would be correct.

The objection taken to the answer of the town of Atlanta, is, that it was not signed by an officer of the town. This is answered by the case of Fulton County v. Miss. and Wabash R. R. Co. 21 Ill. 338, where it is held that a defendant need not write his own name to his answer. Here, the name of the corporation was written, and there is nothing to show that it was unauthorized, nor are we aware of any rule of practice that requires the president or any officer to sign his name, in addition to that of a municipal corporation, to an answer to a bill or other instrument. That is done, as their charters authorize, in the name of the corporation.

On examining the evidence, we find that it sustains the finding of the damages decreed by the court on dissolving the injunction. The sum allowmd was reasonable, and was shorvn to be so by the evidence. The statute authorizes it, and the court was required, on the evidence adduced, to allow the damages and render a decree therefor.

We now come to the consideration of the question, of whether the charter of the railway company, under which this subscription was made, and the bonds issued and taxes levied, was constitutionally adopted. It appears from a certified copy of the journals of the Senate that, on the 28th of January, 1869, Mr. Nicholson introduced Senate bill No. 453, for “An act to incorporate the Peoria, Atlanta and Danville Eailroad Company,” which was read a first time, and on his motion the rule was unanimously dispensed with, the bill read a second time, and referred to the Committee on Eailroads. It also appears that Mr. McManus, from the Committee on Eailroads, to which was referred Senate bill No. 453,for “An act to incorporate the Peoria, Atlanta and Decatur Eailroad Company,”' reported the same back as amended, and recommended its passage as amended. The report of the committee was concurred in, and the bill ordered to be engrossed for a third reading. The journals show that this bill, No. 453, was regularly passed on the call of “ayes” and “nays.”

The objection taken is, that there were two bills of the same number, but of different titles; that one was regularly introduced, twice read, and referred to the appropriate committee, and that a member of the same committee reported back another bill of the same number; that the act under which the company claims was but once read before its passage. If this position is true, then the bill failed, for a want of compliance with constitutional requirements, to become, a law.

But is the position well taken ? The constitution required every bill to be read on three several days in each house, unless, in case of urgency, three-fourths of the house where such bill was so depending should deem it expedient to dispense with the rule. And the question is, was the bill for this act read three times in the Senate before its passage by that body? If the entries on the journal refer to the same bill, then the requirements of the organic law are satisfied. If not, then the act is void. The question, then, is one of identity. Do these entries show there was one or two bills acted upon by the Senate? The number is the same throughout. About that, there is not the pretense of the slightest doubt, and it is manifest that, to have more than one bill pending at the same time, with the same number, would lead to confusion. It would defeat the very object of numbering bills, which is to preserve their identity and prevent confusion.

The placing a number on each bill by each house is well calculated to aid in the dispatch of business, in enabling members to vote intelligently, and the secretary to note the proceedings under each. It is adopted as a matter of convenience, and as a means of always identifying a bill. It- is true, that the fundamental law does not refer to numbers of bills, but leaves each house the choice of means to identify their bills, so as the journals shall show that each was read the requisite number of times, and was passed by the constitutional vote.

That there was but one bill, and that it was passed, there seems not to be the slightest doubt. If the Senate were in the habit of permitting their secretary to jilace the same number on several bills introduced in that body, there then might be a doubt created; but such is not the practice, and when we find a bill introduced and read the first and second time, by one title, and referred to a committee, and it is reported back with the same number, but a change is made in the title, and the report says the bill has been amended bv the committee, is there the slightest reason to doubt that it is the same? We think not. The presumption would rather be that the secretary had mistaken the title, and so entered it on his journal. Or, as the committee report that thev had amended the bill, that the change in the title was one of the amendments they had made.

The constitution does not require bills to be entitled, but that is done as a means of identification. If a bill were introduced without a title, and regularly passed, and the title then adopted," we are unable to see that there would be any constitutional objection to such a law, for that reason. The title to a bill is usually adopted after it has passed the house, and is not an essential part of the bill, although it is of a law.

If we find a law signed by the Speakers of both houses, and approved by the Governor, we must presume that it has passed in conformity to all the requirements of the constitution, and is valid, until the presumption is overcome by legitimate proof. And in such a case, the evidence must be clear and convincing. It is by no means sufficient to only create a doubt wdiether the requirements of the organic law' have been observed, but it must be clearly proved. In this case we do not think that the proof offered to impeach this law has produced that effect, but it has failed to even cast a doubt on the proceedings by. which it was adopted.

A careful consideration of this entire reeoz’d fails to disclose any eiTor for which the decree of the court below' should be revei’sed, azzd it must be affinned.

Decree affirmed.