Sheboygan Company v. Parker

THE constitution of Wisconsin ordains that 'all county officers shall be elected by the electors of the respective counties.' With this fundamental law in force, and with a county board of supervisors in existence, who, under the constitution and laws, were the ordinary administrators of its affairs, the legislature of the State, by 'an act to authorize the County of Sheboygan to aid in the construction of a railroad,' constituted Lewis Curtis, 'Billy Williams,' and three other persons less peculiarly entitled, a board of commissioners for aiding the project. The act directed a vote of the people of the county to be taken, as to whether or not they would have a subscription 'in pursuance of the act,' and then authorized these commissioners to borrow money on the credit of the county, and to issue its bonds therefor. The bonds were to be signed by the president and secretary of this board, and countersigned by the clerk of the regular county board of supervisors, or by the county treasurer; and it was declared that, when thus prepared and issued, they should, 'in the hands of any bon a fide holders, be of full and complete evidence to establish the indebtedness of the county according to their tenor and effect.'

A vote of the people having decided in favor of the railroad, the bonds were issued with interest warrants or coupons annexed. These were not in the exactly usual form of promises to pay, or of declarations that so much money was due the bearer, at the semi-annual dates; but were drafts by 'Lewis Curtis, President of the Board of the Sheboygan County Railroad Commissioners,' on 'the Treasurer of the County of Sheboygan,' in favor of the bearer for so much, and was signed by Williams as 'secretary.'

A number of the warrants being due and unpaid, in the possession of one Parker, a bon a fide holder, he sued the county, under its legal and corporate name of 'The County Board of Supervisors of Sheboygan County,' in the Circuit Court of Wisconsin, to enforce a payment of them.

On error from that court, where judgment was given against the county, the question was, whether the act constituting the new board was constitutional, and the county bound?Messrs. J. S. Brown, Buttrick, and Hill, for the County, plaintiff in error. No persons but county officers can govern the county and regulate its affairs. True in all cases, this is certainly not least true in so important a matter as borrowing money, and binding the county by bonds to pay it back. These five persons were not 'elected by the electors of the county,' as the constitution requires county officers to be.

What are they? They are a corporation created for the purpose of aiding in the construction of a railroad. But by the principles of every free government, and of the constitution of Wisconsin, it is not in the power of the legislature to authorize one corporation to create a debt for another without the consent, express or implied, of the party to be charged. The bonds were issued by the new, excrescent, or 'outside' board, on their own motion, and without the consent of the constituted authorities of the county. But a county cannot exercise its corporate powers in any other way than through its constitutional channels. If the legislature can confer such power as has been attempted to be exercised upon five men, they can confer it upon one, or upon the whole people. Reduced to its elements, the act in question authorizes A. to issue the bonds of B. to C. without B.'s consent.

Indeed, it is plain that this board has felt the truth of all this. Their interest warrants are in a peculiar form. They are not promises of any kind or to anybody; but are mere requests, unaccepted drafts from the board to the county treasurer to pay the bearer the amounts named in them. Now, the county treasurer has no power to pay money out on the order of any other person, corporation, or board, than the board of supervisors of the county. The coupons in this case are not such orders; they are not assumpsits of the county, and are incompetent, immaterial, and irrelevant to establish any demand against the county at all.

After argument by Mr. M. H. Carpenter, contra, for the bondholder,

Mr. Justice GRIER delivered the opinion of the court.