This is a suit brought by C. N. Jordan against the town of Enfield to recover the amount of 22 interest coupons, for $50 each, made by the town on the first of January, 1871, and payable in January and July, 1881, 1882, and 1883. The defendant pleaded non assumpsit, and on the trial a jury was waived, and the cause was tried by the court, consisting of the circuit and district judges. A finding of the facts was made, and, the judges being divided in opinion as to certain questions of law arising thereon, judgment was rendered in favor of the plaintiff, in accordance with the opinion of the presiding judge. The principal question of law was whether an 'incorporated town,' as Enfield was, had power to make a donation of its bonds to the railroad company. Questions of estoppel were also raised, as hereafter noticed.
The facts found by the court, in accordance with an agreed statement presented by the parties, are substantially as follows:
(1) That the town of Enfield was incorporated under an act of the general assembly of the state of Illinois, approved March 15, 1869. This act is set out in full, and is entitled 'An act to extend the corporate powers of the town of Enfield.' It is an ordinary town charter, making the town a corporation by the name and style of 'The Town of Enfield.' Its territorial limits were then prescribed, being one mile square, and the usual corporate powers were conferred. A town council, consisting of five trustees, together with a police magistrate, a treasurer, and a town constable, were directed to be elected annually on the first Monday of May. The powers given to the town council were similar to those usually conferred upon municipal bodies,-as the power to levy and callect taxes; to appoint a clerk, supervisor of streets, and other officers; to appropriate moneys to pay the debts and expenses of the town; to make regulations for securing the general health; to provide a supply of water; to make sidewalks, and to open, grade, pave, and repair streets; to establish markets; to regulate the public grounds; to organize a fire department; to regulate the police, etc.
The findings next set forth at large an act of assembly of Illinois incorporating the Illinois Southeastern Rail way Company, approved February 25, 1867. This act authorized the company to construct a railroad from a point on the Illinois Central Railroad, by way of Fairfield, in Wayne county, to the Ohio river. The route designated would naturally pass in the neighborhood of Enfield, and the railroad, when built, did pass through the town. The seventh section authorized counties through which the road might pass to donate to the company any sum not exceeding $100,000, and to give its bonds therefor. The ninth sec ion authorized any town in any county under township organization to donate not to exceed $30,000; but such donation was payable only by taxation, no authority being given to issue bonds. This section related not to incorporated towns, but to townships forming the territorial subdivisions of counties. The eleventh section authorized 'any incorporated city or town' through or by which the railroad might run to make donations not exceeding $10,000, on the same terms, propositions, conditions, and under the same restrictions, as provided for townships.
The findings next set forth an amendment to the railroad charter, approved February 24, 1869, by the tenth section of which authority was given to 'any village, city, county, or township organized under the township organization law, or any other law of the state, along or near the route of the railway * * * or anywise interested therein,' to subscribe to the stock of the railroad company, or make donations to it to aid in the construction and equipment of its road, provided such subscription or donation was sanctioned by an election of the people. This section gave power to issue bonds for such subscriptions or donations; but towns are not included therein by name.
The court further found that on the first of January, 1871, the town of Enfield issued and delivered to the officers of the Springfield & Illinois Southeastern Railway Company, a company formed by consolidation with the Illinois Southeastern Railway Company, the bonds and coupons now in controversy, copies of which are attached; that said bonds and coupons were issued by said town by virtue of the power (if any) contained in the acts aforesaid, approved February 25, 1867, and February 24, 1869; and that afterwards said bonds and coupons came to the plaintiff through mesne transfers from said Springfield & Illinois Railway Company, and that the bonds were registered in the state auditor's office.