Seven Hickory v. Ellery

ERROR to the Circuit Court of the United States for the Southern District of Illinois.

This is an action by George B. Ellery against the town of Seven Hickory, Ill., to recover upon certain bonds issued by it March 1, 1872, which recite that they are issued 'in pursuance of authority conferred by an act of the General Assembly of the State of Illinois, entitled 'An Act to incorporate the Tuscola, Charleston, and Vincennes Railroad Company,' approved March 7, 1867, and 'An Act to amend the foregoing act,' approved March 25, 1869, and of an election of the legal voters of the town of Seven Hickory, Ill., on the second day of April, 1867, under the provisions of said act of incorporation.'

The defendant objected to the validity of the bonds on the ground that the General Assembly by which the bill for the act of March 7, 1867, was passed adjourned sine die Feb. 28, 1867, on which day the bill was presented to the governor, in whose bands it remained until March 7, when it was approved and signed by him and delivered to the secretary of state, in whose office it was filed, and thereupon published as a low of the State. The defendant also proved that after such adjournment there was no session of the General Assembly until June, 1867.

The court having overruled the objection, found the issues in favor of the plaintiff, and rendered judgment accordingly. The defendant sued out this writ of error.

Sect. 21, art. 4, of the Constitution of Illinois of 1848, is as follows:--

'Every bill which shall have passed the Senate and House of Representatives shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it; but if not, he shall return it, with his objections, to the House in which it shall have originated; and the said House shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, a majority of the members elected shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered; and if approved by a majority of the members elected, it shall become a law, notwithstanding the objections of the governor; but in all such cases the votes of both Houses shall be determined by yeas and nays, to be entered on the journal of each House, respectively. If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the General Assemble shall, by their adjournment, prevent its return; in which case, the said bill shall be returned on the first day of the meeting of the General Assembly after the expiration of said ten days, or be a law.'

Mr. John M. Palmer for the plaintiff in error.

Mr. D. T. McIntyre, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.