Supreme Court, Illinois.-Redman v. Wren. Although J. H. might have assigned the note to the Plaintiff, after suit brought, she was, on being released, a competent witness in his favour. Even if the suit had been brought by her direction, and for her benefit, and she therefore liable to the defendant for the costs in case he succeeded, the release rendered such liability qualified and contingent, and reduced the objection to one against her credibility only. ASSUMPSIT, tried at the Madison circuit in September, 1842, before GRIDLEY, Circuit Judge. Verdict for the plaintiff. The defendant now moved for a new trial on a bill of exceptions. The facts are sufficiently stated in the opinion of the Court. Supreme Court, Springfield, Illinois. Before the Honorable WILLIAM WILSON, THE PEOPLE OF THE STATE OF ILLI- December Term, 1843.* CORPORATION.-MANDAMUS. L. Sherwood, for the defendant. C. Mason, for the plaintiff. COWEN, J. This was an action by the plaintiff as the holder of a promissory note inade by the defendant, and payable to the late Noah Hinman, deceased, or bearer. The plaintiff claimed to have acquired a property in it by delivery from Janette Hinman, the widow of the payee, to whom the plaintiff alleges it had passed by delivery from the payee as a donatio mortis causa. Of this there was strong proof, and the Judge submitted the question to the Jury. Of course we have nothing to do with it on bill of ex-ently appear in the adjudication. ceptions. The Legislature has absolute control over Municipal Corporations to create, chauge, modify, or destroy them at pleasure. The creation of a Municipal Corporation depends, in no degree, upon the assent or dissent of the inhabitants of the particular locality, unless such a condition be contained in the law of its creation. On the question whether, if a gift was proved, the testator revoked it, the Circuit Judge held there was no evidence which called for the consideration of the Jury. In this I think he was right. Mrs. Hinman, although she might have assigned the note to the plaintiff after suit brought, was, on being released by him, a competent witness in his favour. Even if the suit had been brought by her direction, and for her benefit, and she therefore liable to the defendant for the costs, in case he succeeded, the release rendered such liability qualified and contingent, thus reducing the objection to one against her credibility only. The case of Soulden v. Van Reusseleur, 9 Wend. 293, is in point. New trial denied. TRUISM. I never knew an Irishman with less than £2,000 a-year.-Blackwood. A public corporation is not dissolved by a neglect to elect its officers on the day appointed; but, in such case, it only remains dormant and qui escent. THE circumstances of this case suffici SHIELDS, J. delivered the opinion of the Court.-An application is made to this court for a writ of Mandamus to Nicholas Wren, clerk of the county commissioners' court of Adams county, requiring him to make out and deliver to the relator, Andrew Redman, a certificate of his election as Justice of the Peace for said county. The following facts are agreed upon by the parties 1st. That the relator was duly elected on the 7th day of August, 1843, a Justice of the Peace in Columbus precinct. 2nd. That the Columbus precinct is situated in the county of Marquette. 3rd. That the said county of Marquette has never yet been organized. 4th. That if, upon a consideration of these facts, the court shall be of opinion, that the jurisdiction of Adams county extended over the territory of Marquette for purposes of county government at the time of said election, then, in such case, a pe * See case reported ante Vol. 2, p. 347. Supreme Court, Illinois.-Redman v. Wren. remptory mandamus shall issue against the defendant. In granting or refusing this application, the only question presented to this court for its consideration is,-Did the jurisdiction of the county of Adams extend over the county Marquette for the purposes of county government on the 7th day of August, 1843? To determine this question, reference must be had to an act, entitled an act to create the county of Marquette, and for other purpose therein mentioned, approved February 11th, 1843. The first section of this act provides "that all that part of the now county of Adams lying east of Range seven west, of the fourth principal meridian, and also, sections one, twelve, thirteen, twenty-four, twenty-five and thirty-six, of township one south, of the base line, in the aforesaid range seven, be and the same is hereby created into a new county, to be called the county of Marquette." The second section directed the legal voters of said county to elect county officers on the first Monday of April, 1843, with the exception of school commissioner and coroner. The third section required the judges of election to return the respective poll-books to Wesley D. Mc. Cann, at the town of Columbus, within five days after the election, and required the said Mc. Cann, and two other justices of the peace of said county, to open the said returns within twenty days after the election, and perform such other duties in relation to them, as are required by law of clerks of the county commissioners' courts. The fourth section provides, that as soon as the county officers shall have been elected and qualified, the said county of Marquette shall be considered organized, that it shall form a part of the fifth judicial circuit, and have two terms of the court annually. It also makes Columbus a temporary county seat. The fifth section provides, "that all suits and prosecutions that have been commenced, or may hereafter be commenced in the circuit court of Adams county, before the organization of said county of Marquette, shall not be affected by this act, but all suits and prosecutions so commenced as aforesaid, shall be prosecuted to final termination in the circuit court of the said county of Adams, and the officers of the said county of Adams are hereby authorized and required to issue and execute all writs that may be necessary to the prosecution of such writ and prosecutions to final termination any where within the limits of the said county of Marquette. The sixth section directs, that all justices of the peace, and constables, elected in the county of Adams, who reside in the limits of the county of Marquette, shall hold their offices, and have jurisdiction in the said county of Marquette, as though they had been originally elected in said county. The seventh section directed that Daniel Harrison, school commissioner, George Smith, county commissioner, and Jonas Grubb, coroner, who had been elected for Adams county, but residing within the limits of Marquette county, to serve out their respective terms of office in Marquette, and directed that the vacancies thus occasioned in Adams should be filled as in other cases. The eighth section directs the school commissioner of Marquette to transfer the school fund to the school commissioner of Adams, when elected and qualified. The ninth section provides for the election of three representatives to the general assembly from Adams, two from Marquette, and a senator by the joint vote of both counties. The residue of the act contains regulations relative to the records of Marquette, and the adjustment of the finances between the two counties, and the last section declares the act to be in force from its passage. The first section of the act detaches a portion of the territory from the old county of Adams, and creates the same into a new county, called Marquette. The language used is susceptible of but one construction. The intention of the legislature is expressed in the most positive terms. It declares that a new county is absolutely created, and the only question that can arise in determining the force and effect of this section is a question of legislative power in relation to counties. As the constitution of this state contains no restriction, either expressed or implied, upon the action of the legislature in such a case, we hold that it has absolute control over municipal corporations to create Supreme Court, Illinois.-Redman v. Wren. change, modify, or destroy them at plea- | tion returns are directed to be made to him sure. This position will hardly be ques- at Columbus, instead of being made to the tioned. The following authorities, if au- clerk of the county commissioners' court thorities are necessary, may be adduced of the old county of Adams. 3rd. The in support of it-Coles v. The county of whole of this regulation must precede the Madison, (Breese, 120, 121.) Where this organization of Marquette. Now, from court says, "all public incorporations these three circumstances, the conclusion which are established as a part of the po- is irresistible that, before organization, lice of the State are subject to legislative an absolute separation for election purcontrol, and may be changed, modified, en- poses subsisted between the two counties. larged, restricted, or repealed to suit the The only part of the law, which qualifies, ever varying exigencies of the State. or restrains the general and absolute operaCounties are corporations of this character tion of the first section, is the fifth. This and are consequently subject to legislative extends the jurisdiction of the circuit court control. Were it otherwise the object of of Adams county over the territory of their incorporation would be defeated. It Marquette until the organization of the cannot be doubted that Madison county as latter county. Judicial jurisdiction is the a county, might be stricken out of exist- exclusive subject of legislative regulation, ence, and her interest in a popular action the jurisdiction of a circuit court over a thereby defeated." This is a strong case. circuit or district, as well as over a counThe same doctrine will be found in Wil- ty. In the exercise of this acknowcock on Corporations, page 26, sections ledged power, the legislature has extended 11, 12; 2 Kent's Com. 275; The People the jurisdiction of the circuit court of v. Morrill, (21 Wendell, 579 ;) Story on Adams over Marquette till organization. the Constitution, 260. This will prevent that failure of justice The county of Marquette is therefore which might otherwise have accrued in absolutely created by the first section. consequence of the neglect of the inhabitThe second question confines this view of ants to organize their county. That porthe question. Here it will be seen, that a tion of the law which provides for the legal duty is imposed upon the inhabit- continuance in office of those officers oriants of Marquette to elect county officers ginally elected for Adams county, but reon the first Monday of April, 1843. It sidents of Marquette territory, in office as was not left optional with them to organ- officers of Marquette county for the full ize or not. It was positively enjoined term of their respective offices, and which upon them as a specific duty, which as also provides for the proportion of legislacitizens, they were called upon to perform. tive representation to which each county The third and fourth sections would seem shall be entitled, and the adjustment of the to dispel all doubt, if doubt could exist on finances between the two counties, conthis subject. The fourth section declares templates unequivocally the total and that when the county officers shall have absolute separation of the two counties for been elected and qualified, the county those purposes. The legislature has, in shall be considered as organized, and yet many instances, left the organization of a previous to organization, while it is con- new county to the vote of the people. In tended the two counties were still united such cases an option is given to the inhafor purposes of county government, the bitants to organize, or not; but, in the third section directs the election returns to present case, it is different. We can find be made to Wesley D. Mc. Cann, a jus- no provision in this law which will even tioe of the peace, at Columbus, and he, tolerate such an implication. The legiswith two other justices of the peace of lature has created a county, and required Marquette, is substituted to act as a clerk the inhabitants, in express terms, to organof the county commissioners' court of said ize it. Can it be said, that the neglect of county, in relation to said returns. Here the citizens to obey the injunctions of are three distinct circumstances to be no- law, can defeat the law itself, and leave it ticed-1st. Wesley D. Mc. Cann, a jus- a dead letter on the statute book? To tice of the peace of Marquette county is sanction such a doctrine would be to directed to act instead of the clerk of the sanction anarchy, and encourage disorcounty commissioners' court. 2nd. Elec-ganization. Let this court lay down the Supreme Court, Illinois.-Redman v. Wren. principle that any portion of the people can | until organization the people are deprived defeat the object of a public law by diso- of the right of exercising the elective franbeying its injunctions, and it would be chise, unless permitted to vote with nothing more or less than to give judicial Adams county; and it was asked sanction to practical nullification. The whether the legislature could possibly creation of a municipal corporation de- intend to do any act that could be propends in no degree upon the assent or dis- ductive of such injustice. The whole of sent of the inhabitants of the particular the argument is founded in fallacy. First, locality, unless such a condition be con- the inhabitants of Marquette have all the tained in the law of its creation. In rights, powers, and capacities possessed Greenleaf's Evidence, § 331, this doc- by the citizens of any other county in this trine is asserted. The following lan- State, and the consequence complained of guage is used by this perspicuous writer. springs from their neglect to exercise their "Corporations, it is to be observed, are capacities. Secondly, it was their duty classed into public or municipal, and pri- to elect officers at the time, and in the vate corporations. The former are com- manner prescribed by law. They had the posed of all the inhabitants of any of the capacity to do this, and failed to exercise local or territorial portions, into which the that capacity, so that, instead of being country is divided in its political organi- deprived of rights, they have neglected zation. Such are counties, towns, bo- the performance of specific duties. Men, roughs, local parishes, and the like. In who neglect to vote for county officers at these cases, the attribute of individuality a general election might as well complain is conferred on the entire mass of inhabit- of being deprived of the elective franchise. ants, and again is modified, or taken away, In a state of society the exercise of rights at the mere will of the legislature, accord- depends upon the performance of duties, ing to its own views of public convenience, and this constitutes one of the best securiand without any necessity for the consent ties of this form of government. It must be of the inhabitants, though not ordinarily recollected that there are other rights than against it. They are termed quasi corpo- those of the inhabitants of Marquette conrations, and are dependent on the public cerned in this question. The inhabitants will, the inhabitants not, in general, de- of Adams have their rights also. They riving any private and personal rights un- have organized, in conformity to the law der the act of incorporation; its office and and constitution, a separate community object being not to grant private rights, with separate interests, subject to the but to regulate the manner of performing control and management of a district corpublic duties." This is the language of poration, and for the citizens of Marthe author of an excellent work on evi- quette to interfere in the municipal godence, and is the established doctrine on vernment of Adams county would be an this subject. It was urged in argument, invasion of the corporate rights of its citithat a corporation of this kind becomes zens. dissolved by the neglect of the corporators to elect officers. This principle does not apply to counties, or other public corporations. In the case of the Mayor and commonally of Colchester v. Seaber, 3 Burrows, 1866, Lord Mansfield and the other judges decided that a public corporation would not be dissolved, although its whole body of magistracy was gone, and the day of election had passed so that they could not proceed further by their own power. The corporation, in such case, remains dormant and quiescent. The principal argument urged on behalf of the relator was, that, to give Marquette the essential constituents of a county, it must be organized, and that In a case like the present, the duty of the court is plain and obvious; our duty is not to declare what the legislature ought to have done, but what it actually has done; not to legislate, but simply declare what the law is. If a law operates oppressively, it is the province of the legislature to afford redress; but while it continues a law, it is the duty of the citizen to obey it, and courts of justice to declare and enforce it. It has been urged in ar gument, that the inhabitants can still organize the county, without the aid of the legislature. This point is not involved in the decision of this case, and we abstain from expressing our opinion in relation to it. Superior Court-Moses and Moses v. Mead. It is the opinion of the court, that the jurisdiction of Adams county did not extend over the county of Marquette for pur poses of county government on the 7th day of August, 1843. The application for a writ of mandamus is therefore refused, and the relator is to pay the costs of the proceeding. TREAT, J. Dissentiente:-I concur in the views expressed by the majority of the court as to the power of the legislature. I admit that the legislature may, in the exercise of its unquestioned powers, form a new county out of any portion of the territory of the state, and, at the same time, take away the jurisdiction of the county that had previously controled and governed it. Having the power to do this, it may altogether omit to provide a government for the new county, or leave it temporarily without a government, by authorizing one to be formed at a future day by the act of the inhabitants within its limits; which, however, would be a most arbitrary and unjust exercise of power; and before a court should decide that the legislature had thus acted, its intention should clearly and expressly appear, and not to be left to inference or implication. It is a well-established rule in the construction of statutes, that where great inconveniences, or absurd consequences are to result from a particular construction, that construction should be avoided, unless the meaning of the legislature is plain and manifest. (1 Blackstone's Com. 98; 2 Cranch's Report, 358.) If the construction contended for by the defendant be the correct one, the territory included within the boundaries of Marquette county would be, from the passage of the act to the time of the organization under its provisions, left wholly without any government for municipal and county purposes. The jurisdiction of Adams county being withdrawn, the people residing in this, except for certain judicial purposes, would be reduced to a state of anarchy, without the power or capacity to assert and exercise rights and privileges to which they, in common with all of the people of the state, are entitled. On an attentive examination of the act in question, I am impelled to the conclusion, that the legislature never intended to exercise a power liable to such mischievous and unjust consequences. There is no provision in the law expressly taking away the jurisdiction of Adams county, nor is there any provision for a new government before the organization. This consideration alone satisfies me, that the legislature never contemplated an exercise of its power to the extent claimed. All of the provisions of the act, to my mind, seem to have been founded on the understanding that the old goverment was to continue in force until a new one was formed, in the manner prescribed, to take its place and assume its functions. I cannot believe that an interregnum was intended. I am of the opinion, that the jurisdiction of Adams county, for all purposes, continues over the new county, until its organization is complete. Entertaining these views, I am for allowing the application, and awarding a mandamus. WILSON, LOCKWOOD, and BROWN, J. J. also dissented. ASSUMPSIT for breach of an alledged warranty on the sale of 194 barrels of mess beef. The declaration contained four counts, but the plaintiffs, during the trial, entered a nolle prosequi upon the fourth count. 11 |