Two points are presented in this case for our consideration, as follows: Was the election held June 30, 1870, void, or was it invalid by the reason of the election having been held by a moderator, and not by judges and clerks the same as regular elections ? If such election is admitted to be illegal, is there an estoppel against appellants, tax-payers who are complainants herein, by reason of the Pinckney suit and final decree of the Supreme Court deciding in favor of the validity of the bonds and the subsequent compromise with the railroad company and the issuing of the $50,000 in bonds in lieu of the $75,000 originally voted? It must be conceded that the original election was invalid, not being held according to the charter of the railroad company which required the elections authorizing the subscriptions or donations to the railroad company to be carried on the same as in general elections, by j udges and clerks, instead of being conducted by a moderator, as in the present instance. C. & I. R. R. Co. et al v. Mallory, 101 Ill. 583.
The question remaining is, was there an estoppel ? This brings us to consider first whether the parties to the two different suits were the same in the eyes of the law and whether the subject-matter of the first suit was legally identical with what is attempted to be litigated here. It will be observed that the town of Mt. Morris and the Chicago and Iowa Railroad Company and the Supervisor and Town Clerk were party respondents in the Pinckney case, supra. That if the town and its officers had seen proper, it could have joined the complainants in trying to defeat the issuing of the bonds, but it remained one of the defendants, probably choosing to occupy a neutral position; and the railroad company defended against the attacking tax-payers of the town who were really representing the other tax-payers. The railroad company was suecessful and legally established their right in that suit to have the bonds issued. They were issued, by the company rebating all of the 875,000 voted, except 850,000. After the railroad had sold the bonds to innocent purchasers who relied on the fact that the highest legal tribunal in the State had declared them valid, can another set of tax-payers be allowed to come forward and relitigate the same matter, find new objections and defeat the payment of the bonds? If the appellants may do this every other tax-payer in the town may do the same thing and there are several hundred of them. There would be no end to litigation if such were the law. We think the complainants in the first suit not only represented themselves in the matter, but all the other tax-payers that then resided in the town and all those who may come after them. All the tax-payers had a common interest with the first complainants in the question of the validity of the bonds. If the suit was successful all were alike benefited in proportion to the taxable property they owned, and it was impracticable to make all the tax-payers parties complainant. In such case a portion of the tax-payers interested in common with the others may represent the interest of all, more especially in this class of cases where tax-payers are allowed to sue, and where they are not compelled to await the action of the officers representing the town. It would be contrary to a sound public policy to allow each tax-payer a right to an independent and successive suit.
We find that this question has been passed upon by courts of the highest authority and they have held that the tax-payer who brings this kind of a suit, represents all other tax-payers, and that a judgment against them binds all others in the same common interest. That also a suit by the town or other municipal body binds the tax-payers and a judgment against the town can be pleaded in bar against any tax-paver who may attempt to revive the same litigation in his own name. “ A petitioner, a citizen of a county, is bound by a judgment against the county in a court having jurisdiction, or against the Board of Supervisors, they being the legal representatives of the county.” Clark v. Wolf, 29 Iowa, 197. A case much in point and similar in facts to the case at bar is the State ex rel. v. C. & L. N. G. Railroad Company, 13 S. C. 290, and also the State ex rel. v. Wilson, 74 Mo. 232. See, also, Freeman on Judgments, Ed. 1881, Sec. 178; Scotland Co. v. Hill, 112 U. S. 183. These cases fully sustain the doctrine.
The next and remaining question is, was the point now made in the suit, that the election of June 30, 1870, at which the donation of §75,000 was voted by the legal voters of the town invalid because the election was presided over by a moderator and not judges and clerks adjudicated in the Pinckney suit; or ought it to have been so adjudicated, so as to estop appellants from relitigating the matter in this suit?
We think clearly it was so settled and is a matter res adjudicata. In.the bill in that case all the facts in regard to the petition for calling the election, the manner of conducting the election by a moderator, declaration of and counting the vote, and every other step, was set forth particularly.
The answers admitted this and the proof also showed it. The bill also made the point that the election and vote were void.
The identical question raised here was sufficiently presented by the pleadings and evidence. If the point had been made in the brief or argument to the Circuit or Supreme Court without any amendment to the bill the questions must have been passed upon. Ho other allegation need have been made. All the allegations and pleadings were before the eyes and face of attorneys, and all they need do was to point out the objection to the court.
Instead of that they remained silent apparently not aware that such a point might be made and so failed to urge it before the court, although the Supreme Court had decided the question before.
The Supreme Court did. not pass upon the question at all but only upon the question as to whether the Constitution cut out donations, though not subscriptions in all cases, to railroad companies by municipal corporations after July 21, 1870, the day the new Constitution went into effect, and the sufficiency of the petition to call the election as to interest to be borne by the bonds.
The court held that the saving clause in the Constitution applied to donations as well as to subscriptions, and that the petition of twenty voters to have an election called was sufficient, and reversed the decree and dismissed the bill.
In Preble v. Board Supervisors, 8 Biss. 358, it was held that a “ complainant can not divide his cause of action, setting up one ground of illegality in that suit, and if he fails in that, bring a second suit for like purpose, setting up another ground of illegality,” provided the facts were known at the time of the bringing of the first suit. The same was held in Rodgers v. Higgins, 57 Ill. 244; Kelly v. Donlin, 70 Ill. 378; Rugger v. I. & St. L. R. R. Co., 103 Ill. 449; Hamilton v. Quimby, 46 Ill. 90; Garrick v. Chamberlain, 97 Ill. 620; Briscoe v. Lloyd, 64 Ill. 33.
There can be no pretense that the complainants in the Pinckney bill did not fully know of the manner in which the election was held, for they particularly set it out in their bill, and ignorance of .law will not avail them.
As to the point raised, that the question that the town under the Constitution could not issue the bonds, because it would have been in excess of five per cent, of the.assessed value of the taxable property in the town, we say that upon the determination by the Supreme Court in the Pinckney case, that the donation was valid, the bonds became issuable under the saving clause of the Constitution, which is as follows: “ This section shall not be construed to prevent any county, city, township, school district or other municipal corporation from issuing their bonds in compliance with any vote of the people which may have been had prior to the adoption of this Constitution in pursuance of any law providing therefor.”
When it was once determined that this donation was a valid obligation, it became a vested right to have it paid as against any new law that should be passed, and the new Constitution was not aimed to affect debts existing at its adoption.
In this view it made no difference whether the point was raised as long as complainants in that case failed to raise any point to affect the validity of the vote, as it must inevitably have been overruled if made. And for the same reason it is of no value now. It should also have been raised in the Pinckney case, as Pinckney and his attorneys must have had knowedge of the existence of the Constitution of 1870, and the assessed value of the taxable property of the town. The Supreme Court, in Ramsey v. Hoger, 76 Ill. 432, did not hold that portion of the act of 1869 in relation to registration and collection of the bonds from the towns void, only the excessive tax levied by virtue of it and the law allowing such levy.
We are inclined to hold that the compromise between the railroad company and the town and the issuance of a less number of bonds than voted, would not be in itself an estoppel to the prosecution of this suit. If the town had no authority to issue the bonds this compromise could not confer it. But as the bonds are to he held valid such fact is not needed as the former adjudication settles the matter without it. The bonds were Issued in accordance with the original vote, only five years later, and this delay was caused wrongfully by the town, or the suit of the tax-payers, which is chargeable to these complainants, and the fault should not be charged to the bondholders. The railroad company, without doubt, would have taken them sooner if they could have gotten them.
We have noticed every objection of importance urged against the correctness of the decree of the Circuit Court, and finding no error affirm it.
Decree affirmed. ,