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issued to such consolidated company, that they were illegal and void.1 The court largely relied for authority upon Marsh v. Fulton County.2

§ 131. Such is constitutional law and such is, or was, statutory law on the subject of municipal aid bonds. It should be remarked that the especial agitation of this subject in its constitutional aspects has arisen in other states, notably in Michigan, Iowa and Wisconsin. Such eminent jurists as COOLEY, Dillon, and DIXON, have denied the legality of municipal sub

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1 For the full text of the decision see Chicago Legal News, vol. v, no. 48. The facts in the case are stated as follows by the same journal: A vote of the people of the county was had on the 10th of July, 1869, and on the 8th of February, 1870, upon the proposition to subscribe to the capital stock of the Kankakee and Illinois River Railroad company, a corporation possessing the power to construct and maintain a line of road between certain termini in the state of Illinois, with a capital limited to the cost of construction. The bonds in question were issued after the Kankakee and Ill. River R. R. Co. had merged itself by articles of consolidation into another corporation, now known as the Plymouth, Kankakee and Pacific R. R. Co., a road having control of a different enterprise from that of the original corporation, possessing a different capital stock, and governed by a different board of directors, elected upon a different basis, with different termini of the road: held, that these bonds were illegal and void; that they were issued by the board of supervisors without the power being granted to them for that purpose; that the vote of the people authorized the county authorities to issue its bonds to the Kankakee and Illinois River Railroad company, and they were in fact issued to another company without a vote. The fact that the bonds bear upon their face the statement that they were issued in pursuance of law and for the stock of the Kankakee and Illinois River Railroad company, can not be held to clothe the county authorities with power to make the issue, as the assertion is untrue.

2 10 Wallace, 676; also Clearwater v. Meredith, 1 Wall. 25

scriptions, giving cogent reasons therefor; but they have been overruled by the supreme court of the United States, the tribunal before which every court in the nation must bow in obedience, however reluctantly. The authorities in support of the position taken by the court of last resort are stated quite fully in the decision herewith given in full.

II. LATEST DECISIONS IN ILLINOIS.

§ 132. Preliminary statement.

133. The facts of the case given.

134. General view of the issue raised.

135. Judicial limitations.

136. Legislative limitations; Illinois authorities.

137. MARSHALL and COOLEY on the subject.

138. The doctrine stated by the court.

139. Application to this case.

140. Railroads public benefactions.
141. Railways highways; authorities.
142. Consequent rights and liabilities
143. Eminent domain and taxation.
144. The constitution and taxation.
145. Corporate purpose defined.
146. The conclusion reached.

§ 132. This whole subject was thoroughly discussed by the supreme court of Illinois in an opinion filed January 22, 1872. It was rendered by Mr. Justice THORNTON, the entire bench concurring. As the decision is of great importance, and will not be officially reported for some time, we give it entire, only premising that several of the positions therein taken are peculiarly significant in their support of the constitutionality of the statute to regulate railway charges and prevent extortion. Their application will be spe

cifically noted in the discussion of that subject. The title of the case is, Chicago, Danville and Vincennes R. R. Co. v. Frederick Smith. The original trial was in the circuit court of Will county, before Judge TIPTON. The decision of the inferior court was adverse to the constitutionality of the bonds. The full basis of the decision is as follows:

§ 133. Defendant in error filed his bill in the circuit court to enjoin the collection of taxes levied under an act of the legislature, and in pursuance of a vote of the people, to aid in the construction of a railroad. The act authorized all towns, acting under the township organization law, to appropriate such sums of money as they should deem proper to aid in the construction of the road, to be paid as soon as the track should have been located and constructed through the towns. The road was completed before the appropriation was made; and it was a donation to the company, and not a subscription to its capital stock. Upon the hearing, the circuit court made the injunction perpetual, and pronounced the act unconstitutional. The officers of the town, who made the appropriation, and levied the tax, were the "corporate authorities" of a municipal corporation; and they acted in the premises after a majority of the legal voters of the municipality had authorized the appropriation upon the condition of the construction of the road.

$134. The only question is as to the power of the legislature to authorize municipalities to subscribe to the capital stock of railroad companies, and to appropriate money as a donation, to aid in the construction

of the roads. The only difference between this case and numerous cases decided by this court, is that the money appropriated by virtue of the statute in question is a donation instead of a subscription. But for this difference we might stand securely upon the maxim, Stere decisis et non quieta movere. Frequent fluctuations in the opinions of courts of last resort involve the court in absurdities; render the law uncertain; destroy that feeling of reliance so essential to the strength and stability of all authority; and produce mischiefs innumerable. The decision of the courts had better be involved in some error, than subject to change upon every change of the judiciary.

$ 135. In the discussion of legislative power, we have nothing to do with questions of policy or expediency. The constitution has created the legislative and judicial departments; the one to make the law, the other to construe and administer it. It may be mischievous in its effects; burdensome upon the people; conflict with our conceptions of natural right, abstract justice, or pure morality, and of doubtful propriety in numerous respects; and yet we would not be justified to hold that it was not within the scope of legislative authority for such reason. The question, as to the repugnancy of a law to the constitution, is always one of much delicacy; and courts will never indulge the supposition unless the repugnancy is manifest to the understanding.

$136. In Lane v. Donovan, 3 Scam. p. 238, this court said: "The determining of a question involving the inquiry whether an exercise of power, by the legislative department of the state, is constitutional, is readily conceded to be not only a matter of delicacy,

but of grave import, and demands the most deliberate and mature consideration. It should not, moreover, be decided but in cases of clear necessity, and where the character of the act done is in plain and obvious conflict with the constitution." The law should not be pronounced void in a doubtful case or upon slight implication. "The opposition between it and the constitution must be clear and strong." People v. Marshall, 1 Gil. 672. The infringement of the constitution must be evident before the courts will interfere and hold the act nugatory. People v. Hatch, 3 Ill. 130. In ex parte McCollum, 1 Conn. 504, SAVAGE, C. J., said that a court ought not to declare a law unconstitutional without a case is presented in which there can be no rational doubt.

§ 137. In delivering the opinion in the case of Fletcher v. Peck, 6 Cranch, 87, Chief Justice MARSHALL said: "The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom or ever 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 obligation 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." In the same court, whose decision is chiefly relied on to induce a reversal of the former opinions of this court, equally explicit language

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