delivered the opinion of the Court:
This case was before this court on an appeal by complainants,—the defendants in error- in this case. It was then assigned for error that the court below erred in dismissing the bill as to the non-resident holders of the bonds, and the refusal of the court to decree the payment of the taxes in the hands of the State and county treasurers, collected on the assessment for taxation, to the corporate authorities of the town. On a hearing, the assignment of errors was not sustained.
The decree finds there was never recorded any ordinance of the town authorities, or any record of authorhy for the clerk to give notice of an election; that the bonds were issued to become due the 1st of January, 1892; and-it. was found that the-18th section of the charter, under which the election was held, was unconstitutional. It was decreed they were null and void, and were issued without authority of law, and it enjoins the Auditor from levying a tax with which to pay the bonds, or interest thereon, and enjoins the clerk from extending them on the collector’s books, and the collector of the township from collecting such taxes.
The findings of the court are not material, as the bill was taken pro confesso. On such a decree all of the material allegations of the "bill are taken as true, and such a decree as they warrant will be sustained. The only question, then, presented by this record is, whether the bill warranted the relief granted. It is urged by plaintiff in error that it did not, and the decree is therefore erroneous, and should be reversed. It is no doubt true that the bill, in some of its allegations, is inartificially drawn, and the allegations immaterial. The allegation that there is no record that the town authorities empowered the clerk to give notice calling the election, or of the notice, can not invalidate an election legally called and held. The rights of bondholders and creditors do not depend upon the performance of such a duty of the town clerk. That depends upon whether there has in fact been a substantial compliance with the requirements of the law authorizing the election to be held, otherwise it would be in the power of the clerk to invalidate bonds clearly legal and binding, by refusing to make a record that the order was made or notice given.
But does the bill contain allegations that support the decree? We think it does. It is alleged that no ordinance was ever passed requiring or authorizing an election, or the town clerk to give a notice of an election, to determine whether the subscription should be made, and on what terms and conditions. These, under the statute, were indispensable to the validity of the subscription. The 18th section of the charter of the railroad provides, that the acts for a general railroad system,- of November 6, 1849, and one to facilitate the construction of railroads, of the 1st of March, 1854, are made applicable to any election to determine whether any town shall subscribe to the stock of the road. The first of these acts, by section 4, provides for the manner of calling and holding the election for and against subscription. It provides that the county judges or city council shall give at" least thirty days’ notice of the election, and the conditions of subscription. The other act relates to the manner of issuing the bonds of the city or county. These acts relate only to county and city subscriptions, but the 18th section of the charter makes them applicable to towns at the ends or along the line of the road. When thus made applicable to such towns, in subscribing for such stock, the election was required to be called by the governing authority of the town, as it was by the authorities of the county or city. In a city, the common council was required to order the election, and the 18th section of the charter .imposes that duty on the president and trustees. Under these acts a legal election could not be held without such an order. That, under the statute, invokes and brings the power into action, and that was the only mode in which, it could be exercised. This was the first, and one of the most important, acts by which authority could be acquired to subscribe. None is more important to authorize the exercise of the power, unless it be a majority vote in favor «of subscription. The president and trustees, in giving the. notice of the election, could order the town clerk to prepare and post the notice, and that would be in conformity to the requirement. He who acts by another, acts by himself. • Without such an order the town clerk was as powerless to give the notice as any other person in the town.
It has been frequently held that the election can be ordered only by the persons or functionaries designated by the law,— that an election called by any other person or body is absolutely void, and so of all acts growing out of or performed under it. See Schuyler County v. Farwell, 25 Ill. 181, Clarke v. Hancock County, 27 id. 305, and Marshall County v. Cook, 38 id. 44. These cases are decisive of this question.
The allegation standing confessed, that no election was ordered by the president and trustees, is fatal to' the validity of the bonds involved in this case, and being void, there was no error in enjoining the collection of taxes for their payment, or interest thereon, and the decree of the court below must be affirmed.
Decree affirmed.