dissenting:
I do not concur in the conclusion reached by the majority..
The bonds in question were issued in 1868 by Wayne county, $100,000 thereof, as a donation to the Illinois Southeastern - Railroad Company, and $100,000, as a subscription to the-stock of that company. They are alleged to be void, on the ground, that the board of supervisors, so called, which issued them, and which submitted the question of their issue to the votes of the people, was an illegal and unconstitutional body, without power to act in the premises.
The charter of the Illinois Southeastern Railroad Company, passed in 1867, did not give the board of supervisors in counties under township organization any authority to subscribe for the stock of the company, or to call an election for the purpose of voting upon the question of such subscription, or to issue subscription bonds; it only authorized the board to issue donation bonds, and to call an election to vote upon the question of making a donation, in any sum, not exceeding $100,000, to the company to aid in the construction of its road.
By a general law, however, passed November 6, 1849, and entitled “An act supplemental to an act entitled ah act to provide for a general system of railroad incorporations,” (Sess. Laws of 1849, p. 28,) the legislature authorized any county in the State to subscribe for stock in any railroad company, in any sum not exceeding $100,000, and conferred upon the county court of such county the power to call an election for the purpose of voting for or against such subscription, and to pay the same in bonds of the county. On April 1, 1851, the legislature passed “An act to provide for township organization,” and the fifth clause of the 4th section of the 16th article of that act, (Sess. Laws of 1851, p. 51,) contained this provision: “The board of supervisors of each county in this State shall have power, at their annual meetings, or at any other meeting, to perform all other duties, not inconsistent with this act, which may be required of or enjoined on them by any law of this State, to the county courts.” The record in this case shows, that the county of Wayne organized under the Township law, and adopted its provisions by a vote of the people of the county in the year, 1860. The duty of calling an election to vote upon the question of subscribing for railroad stock, and of issuing county bonds in pursuance thereof, which had been imposed upon the county court of Wayne county, prior to its organization under the Township law, was not inconsistent with any of the provisions of such law, and, therefore, devolved upon the board of supervisors of that county after its adoption of township organization. Prettyman v. Supervisors, 19 Ill. 406.
On February 25, 1868, at an election in Wayne county called by the board of supervisors, two propositions were submitted to the voters and adopted by a majority of the votes cast. One was, that the county should subscribe $100,000 to the capital stock of the Illinois Southeastern Bailroad Company, and issue bonds of the county to pay such subscription. The other was, that the county should donate $100,000 to said railroad company, and issue donation bonds to pay the same. If the board of supervisors, as then constituted, had any power to submit "the question of donation to the voters of the county and to issue donation bonds, it had the same power to submit the question of subscription for stock and to issue subscription bonds. Therefore no different rule can be applied in determining the validity of the subscription bonds from that which must govern in considering the validity of the donation bonds.
The seventh section of “An act to incorporate the Illinois Southeastern Railway Company,” approved February 25,1867, and in force February 26, 1867, is as follows:
“Sec. 7. The county court, or board of supervisors (where such county has adopted township organization) of any county into or through which this road or its branch may pass, is hereby authorized and fully empowered to donate to said company, as a bonus or inducement towards the building of said railroad or its branch, any sum not exceeding $100,000, and may order the clerk of the county court, or board of supervisors, as the case may be, of such county, to countersign and deliver such bonds so issued. * * * Provided, that no donation by the county court or board of supervisors of any such county shall be of a greater sum than $50,000, until after the question of such larger donation shall have been submitted to the legal voters of such county, at an election to be called, conducted, returns made, canvassed and published in the usual manner of calling, conducting, making returns, canvassing and publishing special county elections. * * * And if a majority of the ballots east at such an election be in favor of donation, it shall be the duty of the county court or board of supervisors of such county so voting to donate some amount, not less than $50,000 nor more than $100,000, to said company, and to order the issuing of bonds of the county for the amount so provided.” 2 Private Laws of 1867, p. 750.
The power to issue the bonds in question is derived solely and exclusively from this act of February 25, 1867, and from the acts of November 6, 1849, and April 1, 1851, already referred to. The body, upon which the power was conferred by these acts, was the board of supervisors of the county. On February 26, 1867, the board of supervisors of Wayne county was organized and constituted, as provided for in the general Township Organization law of the State. (Sess. Laws of 1851, p. 51; Public Laws of Illinois of 1861, p. 216.) By reference to such Township Organization law, as passed in 1851 and amended' in 1861, it may be seen what that board was, and how it was composed. .
Tinder the then existing system of township organization, the county was divided into as many towns as there are townships, according to government surveys. The allegations of the petition in this case, which are admitted to be true, show, that Wayne county was divided into fifteen towns. Bach town, at the annual town meeting, elected one supervisor, unless the legal voters equalled or exceeded eight hundred, when it was entitled to one additional supervisor. The supervisor was a town officer, and, as such, had important duties to perform. He was required to take an oath of office, and give bond to the town for the faithful discharge of his duties. He received and paid over all moneys, raised in the town for defraying certain town charges. He was obliged to keep an account of his receipts and expenditures, and, annually, to account with the town clerk, and the two justices of the peace of the town, for his disbursements. He prosecuted, in the name of the town, for certain penalties, given to it by law, and process was served upon him in legal proceedings against the town. He and the town clerk and justices of the peace constituted a board of auditors to examine the accounts of the overseers of the poor and the highway commissioners.
The supervisors of the different towns in the county met annually for the dispatch of business, “as a board of supervisors.” There was no such officer, as a member of the board of supervisors, who was elected, as such, by the people. The-supervisors of the towns, elected as town officers, and not as-county officers, met together once a year, and, when they so met, constituted and were known as the “board of supervisors.”' The board was simply an assemblage of town supervisors. Bach supervisor was required to attend this annual meeting of the board, and to lay before it certain matters, connected with the interests of his town. The powers of the county, as a body politic, were vested in the board of supervisors. Special meetings could only be held, when requested in writing by at least one-third of the members of the board. A majority of the supervisors of the county constituted a quorum for the transaction of business.
On February 26, 1867, the board of supervisors of Wayne county consisted, under the system here described, of fifteen town supervisors, each elected by one of the fifteen towns, into which the county had been divided. It required eight supervisors to make a quorum. It is manifest, that this board of fifteen supervisors was the board, upon which the power to issue the donation and subscription bonds, now under consideration, was conferred by the acts of the legislature, already referred to.
Thereafter and on February 28,1867, the legislature passed an act, “approved February 28,1867,” and “in force February 28,1867,” entitled “An act to change the time of electing certain officers in a county therein named.” (Public Laws, 1867, p. 102.) Its first section is as follows:
“That the board of supervisors in Wayne county shall consist of five persons, to be elected in the following manner, to-wit: The townships of Four Mile, Hickory Hill and Arrington shall constitute the first electoral district of said county, and shall be entitled to one member of said board; the townships of Big Mound, Lamard, Jasper and Barnhill shall constitute the second electoral district in said county, and shall be entitled to two members of said board; the townships of Leech, Massillon, Mount Erie and Elm shall constitute the third electoral district in said county, and be entitled to one member of said board. The remainder of said county shall constitute the fourth district, and shall be entitled to one member of said board.”
The second section provides, that there shall be elected on the first Tuesday in April, 1867, and every four years thereafter, in each of said electoral districts, “one member of the board of supervisors of Wayne county,” who shall each hold their office for the term of four years, etc., except in the second district, etc., which shall elect two members, etc.
The third section provides, that said board shall perform all duties enjoined upon the board of supervisors, acting under the general township organization laws of this State, and shall have all the powers and privileges of boards of supervisors acting under such general township organization laws, and that any three of said board shall constitute a quorum for the transaction of any business.
Section 4 provides, that the members of said board shall each receive such compensation per diem as they may fix, not to exceed four dollars per day, for each day “in which said member shall be engaged in attending said court.”
Section 5 provides that said'board shall hold at least two meetings in each year, and that any special meeting may be called by any two members, etc.
Section 6 provides, that, in case of any vacancy in said board, the county clerk shall advertise a new election, etc.
Section T provides, that “all duties, not herein provided for to be done and performed, by virtue of the township organization laws 'of this State, by the supervisors of towns, in the different towns, shall be done and performed, in said county, by a justice of the peace in such town, who shall be selected by the town clerk, town assessor and town collector, for that purpose, each year,” etc.
Section 8 is as follows: “This act shall be deemed and taken as a public act, and be in force from and after its passage.”
Under the provisions of this act, five persons were elected, who proceeded to act as the board of supervisors of Wayne •county. It was the board, consisting of these five persons, who called the election, held on February 25, 1868, as above stated, and who issued the bonds in controversy in this proceeding. At a special meeting of this board, held on January 18, 1868, and called on petition of two of the five members, the election in question was ordered, as a special election.
The act of February 28, 1867, is claimed to be unconstitutional upon three grounds. First, it is said, that the act in question, being special in its character and having never been submitted to the votes of the people, vidlates section 6 of article 7 of the constitution of 1848, which provides, that “the General Assembly shall provide, by a general law, for a township organization, under which any county may organize whenever a majority of the voters of such county, at any general election, shall so determine,” etc. (People v. Brown, 11 Ill. 478; People v. Couchman, 15 id. 142; People v. Brayton, 94 id. 341.) Second, that the act in question violates the 5th section of the 9th article of the constitution of 1848, which provides, 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,” etc. (Cornell v. People, 107 Ill. 372.) Third, the act is said to be in violation of section 23 of article 3 of the constitution of 1848, a portion of which section is in the following words: “No private or local law, which may be passed by the General Assembly, shall embrace more than one subject, and that shall be expressed in the title.”
It is not necessary to express any opinion as to the first and second grounds, upon which the constitutionality of the law is attacked. It is clearly unconstitutional upon the third ground, urged against it. It violates section 23 of article 3, as above quoted. It is a local law. It applies to Wayne county and no other county in the State. It embraces a subject, which is not expressed in its title. It is entitled “An act to change the time of electing certain officers in a county therein named.” It does not change the time of electing any officers. It abolishes the office of supervisor of the town, and provides that the duties of town supervisors shall be performed by justices of the peace. It creates certain new electoral districts, and provides for the election of members of the board of supervisors, as such. No such official, as a member of the board of supervisors, had theretofore been elected, as such, hy the people. Each town supervisor, when meeting with the supervisors of all the other towns in the county, was called a member of the board of supervisors. The five members of the new board were to be elected once in four years, instead of being elected annually. They were, however, new officials, created for the first time by this act. They were not town supervisors, but district supervisors. It is apparent from the most superficial examination, that the title furnishes no information of the subjects, which are embraced in the body of the law. The view, here expressed, is sustained by the following cases: People v. Mellen, 32 Ill. 181; People v. Institution of Protestant Deaconesses, 71 id. 229; Village of Lockport v. Gaylord, 61 id. 276; Middleport v. Ætna Life Ins. Co. 82 id. 562; Welch v. Post, 99 id. 471.
It is, however, urged, that the five district supervisors, who issued the bonds in question, were officers de facto, and that their acts, as such de facto officers, are valid and binding, so far as the rights of third persons are concerned. I do not think, that this position is tenable under the facts of this case. There are some authorities, which hold, that an act of the legislature, even if it be unconstitutional, is sufficient to give color of title, and that an officer, acting under it, is an officer defacto. But the cases, which lay down this doctrine, will be found, upon a careful analysis, to refer not to the unconstitutiona-lity of the act creating the office; but to the unconstitutionality of the act, hy which the officer is appointed to an office legally existing. Such cases apply only to the invalidity, irregularity or unconstitutionality of the mode, by which a party is appointed or elected to a legally existing office. Where an office has been lawfully created, the acts of an incumbent, who holds it improperly, will be considered valid, as being the acts of an officer de facto. But there can not he an officer de facto, where no officer de jure is provided for. Before one can claim to be a de facto officer of the law, there must be a law creating the office. The office itself must be one de jwre; the officer may, then, be one de facto. There can be no officer either de jure or de facto, if there be no office to fill. (Norton v. Shelby County, 118 U. S. 425; Town of Deborah v. Bullis, 25 Iowa, 12; Wait’s Actions and Defences, s'ec. 9). Dillon in his work on Municipal Corporations (3d ed.) sec. 276, says: “The notion, that there can he a de facto office has been characterized as a political solecism, without foundation in reason and without support in law; and, therefore, a person can not claim to be a de facto officer of a municipal corporation, when the corporation or people have, in law, no power, in any event, to elect°or appoint such an officer.”
It can not be said of the act of February 28, 1867, that it merely prescribed a new mode of selecting the members of the board of supervisors of Wayne county. It endeavored to form a new board of supervisors, unknown to the Township law, under which Wayne county was organized, and opposed to the spirit and theory of that law. In the place of a board, consisting of fifteen town officers, elected by the fifteen towns of the county, eight of whom constituted a legal quorum, it provided for the organization of a board of five men, elected by five newly created electoral districts, and three of whom constituted a legal quorum. It is apparent from the observations already made, that this act sought to inaugurate a new system of government for Wayne county. It made provision for a set of officials, who,-though they were called by the same name as the old board, were yet, in fact, an entirely new governing body.
It follows, that the five men, who issued the bonds under consideration, were not incumbents of offices, already legally existing, and can not be regarded as de facto officers. As the act, which attempted to create the board of five district supervisors, never became a law, that board never really came into existence. The Supreme Court of the United States say: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, supra.
It is further claimed, that the issuance of the bonds, involved in this suit, has been ratified by the legislature in the passage of an act, approved February 24, 1869, and entitled, “An act to amend an act entitled an act to incorporate the Hlinois Southeastern Bailway Company.” (3 Private Laws, p. 308.) The first section of this act provides, that “all subscriptions to the capital stock, or donations, or gifts to said railway company, whether made by individuals, townships, counties or corporations, shall be and are by this act legalized; and the said company is" hereby empowered and authorized to collect - and use the same upon the conditions as donated and subscribed.”
Clearly this first section of the act of 1869 is unconstitutional, as being in violation of section 23 of article 3 of the constitution of 1848, as above quoted. This court said of it in Welch v. Post, supra: “The question is directly made, that the amendatory act of 1869 violates the constitution of 1848, article 3, section 23. * * * On the authority of Middleport v. Ætna Life Ins. Co. 82 Ill. 562, we are inclined to hold the point is well taken, and, if so, it would be conclusive of the whole case.” In Village of Lockport v. Gaylord, supra, the act under consideration was an act of the legislature, entitled “An act to amend the charter of the village of Lock-port, passed February 12, A. D. 1853,” the 6th section of which was as follows: “That the appropriations made by the president and trustees, and orders, drawn by the clerk in February, 1867, be, and the same are, hereby fully legalized in all respects.” It was there said: “The legalization of unauthorized acts of the corporation can-not be considered to be amendatory of its charter. * * * The object of the 6th section is not expressed in the title of the act, and we must hold, that it was passed in violation of the constitution, and is, therefore, void.”
There is no difference between the act, which came under review in Village of Lockport v. Gaylord,, and the act of 1869, now under consideration. The latter act, in its title, purports to amend the charter of the Illinois Southeastern Bailway Company. The first section attempts to legalize unauthorized donations and subscriptions. Such legalization is. not amendatory of the charter. The object of the first section is not, therefore, expressed in the title of the act. Hence, it must be held to have been passed in violation of the constitution, and is void. Being thus unconstitutional and void, it can not be regarded as a ratification of the illegal acts of the board of supervisors, created by the act of February 28, 1861.
For the reasons here stated I think the judgment of the county court should be reversed.
Mr. Justice Scholfield : I concur in the foregoing views of Mr. Justice Magruder.
Mr. Justice Mulicey: I fully concur in the dissenting opinion of Mr. Justice Magruder.