Statement of the Case.

The bill recited that this railroad company was incorporated. in 1865 under the laws of the State of Illinois, with power to construct a railroad from a point in Lawrence County, by way of Danville, to the city of Chicago; that an act of the legislature of that State, passed March 7, 1867, authorized cities, towns, or townships, lying within certain limits, to appropriate moneys and levy a tax to aid the construction of said road; and "that said act authorized all incorporated towns and cities and towns acting under township organization, lying wholly or in part within twenty miles of the east line of the State of Illinois, and also Letween the city of Chicago and the southern boundary of Lawrence County, in said State, to appropriate such sums of money as they should deem proper to the said Chicago, Danville and Vincennes Railroad Company, to aid it in the construction of its road, to be paid as soon as the track of said road should be laid and constructed through such cities, towns, or townships: Provided, however, that a proposition to make such appropriation should first be submitted to a vote of the legal voters of such cities, towns, or townships at a regular, annual, or special meeting, of which at least ten days' previous notice should be given; and also provided, that a vote should be taken on such proposition, by ballot, at the usual place of election, and that a majority of the votes cast should be in favor of the proposition; and your orator further avers that said act authorized and required the authorities of such cities, towns, and townships to levy and collect such taxes and to make such other provisions as might be necessary and proper for the prompt payment of such appropriations so made."

It was then alleged, that, on the 8th day of June, 1867, after due publication of notice according to law, a meeting of the legal voters of said town of Middleport was held, at which they cast their votes by ballot upon the proposition to levy and collect a tax of $15,000 upon the taxable property of the inhabitants of the town to aid in the construction of said railroad, provided Watseka, a city in the county of Iroquois, situated in or near the south line of said town, should be made a point in said road; that it appeared, on counting the votes,

Statement of the Case.

that 323 were in favor of and 68 were against such tax, and that thereupon the proposition was duly declared carried, the proceedings relating to the meeting and vote duly attested by the town clerk and the moderator of the meeting, and by said clerk duly recorded in the town records.

The bill further averred that the railroad company accepted this vote and appropriation of the township, and, relying upon such vote and the good faith of said town, accepted the condition of the appropriation, and constructed and completed its track through said town; that on the 10th day of February, 1871, the board of town auditors adopted a resolution, of which the following is a copy:

"Whereas the township of Middleport did, on the 8th day of June, 1867, vote aid to the Chicago, Danville & Vincennes Railroad Company to the amount of fifteen thousand dollars, and it appearing that said township is unable to pay such amount in money:

"Therefore resolved by the board of auditors of said township that bonds issue to said Chicago, Danville & Vincennes Railroad Company to the amount of fifteen thousand dollars, toge:ner with a sufficient amount to cover the discount necessary on said bonds in negotiating the same, to wit, one thousand five hundred dollars, said bonds to be dated February 20th, A.D. 1871, and to bear interest at the rate of ten per cent from date per annum."

In pursuance of this resolution it was alleged, that, on the 24th day of March, 1871, the supervisor and town clerk of Middleport executed the fifteen bonds which are the subject of this suit; that "the said bonds were numbered one to fifteen, inclusive, and were delivered to the said railroad company, upon the fulfilment of the conditions of said vote, in payment of ninety cents on the dollar of the appropriation made to said company by said vote, both parties believing that said bonds were fully authorized by law and were legal, valid, and binding on said town, and also believing them to be legal evidences of the debt in favor of said company incurred by said town in voting said appropriation."

It was then alleged, that, on or about the 26th day of June,

Statement of the Case.

1876, the town of Middleport, which up to that time had paid the interest upon the bonds, filed a bill in equity in the Circuit Court for the county of Iroquois against the complainant corporation as the holder of said bonds, and certain other persons, "alleging, in substance, the making and issuing of said bonds, as herein stated, that the same were delivered to your orator, and that your orator was the holder thereof, and that the same were made and issued without authority of law and were invalid, and praying the court so to decree and to enjoin your orator from collecting the same and for other relief, as by the record in the cause, upon reference thereto, will fully appear."

It was averred that the Circuit Court dismissed the bill, but that upon appeal to the Supreme Court of Illinois the decree dismissing it was reversed, that court holding that these bonds were void as issued without authority of law; and the case was remanded to said Circuit Court for further proceedings; whereupon it passed a decree in conformity with the opinion of said Supreme Court, adjudging the bonds void, and enjoined their collection.

The bill then charged that said Supreme Court, while holding the bonds to be void, did not deny, but impliedly admitted, the validity of the appropriation by the town, and insisted that by the issue and delivery of said bonds to the railroad company, and their sale by that company to the present complainant, it was thereby subrogated to the rights of action which that company would have on the contract evidenced by the vote of the town, and the acceptance and fulfilment of the contract by the railroad company. It was also alleged that no part of the principal sum named in the bonds, or any part of said appropriation, had ever been paid, but that. on the contrary, the town of Middleport denied all liability therefor; that ever since the purchase of said bonds the complainant had continued to hold, and then held, the same, and had been and then was the holder of all rights which the railroad company or its assigns had against said town by reason of the premises. A decree was then prayed for that the town of Middleport should pay to complainant the amount found due, and should

Statement of the Case.

without delay levy and collect all taxes necessary for such payment; also, that the court would enforce the rights of complainant by writs of mandamus, and such other and further orders and decrees according to the course of equity as should be necessary and proper; and also prayed that W. H. Leyford, in whose hands as receiver the Chicago, Danville & Vincennes Railroad Company had been placed by the court, it being insolvent, might be made a party defendant thereto.

To this bill the defendant demurred, and assigned the following as causes for demurrer :

First. That said bill does not contain any matter of equity whereon this court can ground any decree or give complainant any relief as against this respondent.

Second. Bill shows it is exhibited against respondent and the Chicago, Danville and Vincennes Railroad Company and William Leyford, its receiver, as respondents thereto, and the facts set forth therein show the same relief cannot be granted against all of said respondents, and fails to state facts showing respondents jointly liable, but stated facts which show this respondent, if liable at all, is not jointly liable or in any manner connected with the others, and the bill is multifari

ous.

Third. Fails to show any written agreement on which suit is brought that would bind respondent, and fails to state facts showing a cause of action exists against respondent that arose within five years last past before bringing of suit.

Fourth. Fails to show any written agreement on which suit is brought binding on respondent on which has arisen a cause of action within the last ten years prior to bringing this suit.

Fifth. Fails to set forth facts showing an excuse for the great delay in bringing suit which is shown on face of bill, and equity will not relieve against laches.

Sixth. Bill contains many blanks of dates and names and nothing on face of bill from which facts can be obtained to fill

same.

The court below sustained the demurrer, and dismissed the bill, from which judgment complainant appealed.

Argument for Appellant.

Mr. J. II. Sedgwick and Mr. O. J. Bailey for appellant.

I. The contracts granting aid were completed, as binding obligations on the towns in favor of the railroad company, at the polls. Chinquy v. People, 78 Illinois, 570, 576; Chicago & Iowa Railroad Co. v. Pinkney, 74 Illinois, 277; Fairfield v. Gallatin County, 100 U. S. 47; overruling Concord v. Savings Bank, 92 U. S. 625. The fact that there were conditions in the contract, as that the railroad should be built, &c., made it no less binding. The railroad company performed the conditions about July, 1871. This made the contracts absolute on the part of the town to levy, collect and pay over to the railroad company the taxes voted. These contracts have never been changed. "The constitution (of Illinois, 1870) saved whatever rights were acquired by the company under that vote; for it left untouched the authority of the township to complete the donation to the company according to the terms upon which it was voted." Concord v. Robinson, 121 U. S. 165, 171.

The issuing of void bonds by the officers of the town to represent or fund these contracts, and the acceptance of such bonds by the railroad company, and its negotiation of them to holders for vele, did not extinguish these valid obligations of the towns. Marsh v. Fulton County, 10 Wall. 676; Louisiana v. Wood, 102 U. S. 294; Paul v. Kenosha, 22 Wisconsin, 256; S. C. 94 Am. Dec. 598; Curtis v. Leavitt, 15 N. Y. 9; Nelson v. Mayor, 63 N. Y. 535, 544; Anthony v. Jasper Co., 101 U. S. 693. But having sold the bonds and received the money on them it would be inequitable for the railroad company to still enforce the contracts for its own benefit. It therefore holds them as trustee for our benefit. By buying the bonds supposed to represent them we became in equity entitled to the benefit of them. Louisiana v. Wood, 102 U. S. 294, 298.

A purchaser will ordinarily be subrogated to all the rights of his vendor in the property, even though they are not expressly conveyed to him. Sheldon on Subrogation, § 34.

II. The equitable assignee of a chose in action has the right to go into a court of equity to have his interest therein estab