the words "as hereinafter provided," we find the application for the election must be for "an election to determine whether such subscription shall be made and such tax levied "-specifying in such application the amount of the same. The words, "the same," here plainly relate to the tax to be levied, as much as to the subscription to be made. The question whether such subscription shall be made, and also the question whether such tax shall be levied, are both required to be submitted.

Again, section 10 requires that a majority shall be cast, at such election, "in favor of such subscription and tax for the payment thereof," before authority or power is given to levy such tax, subscribe the amount thereof and issue bonds for such amount.

Here are three things to be done-where the proper election has been held with favorable result-and they are stated in the order following: 1st, to "levy such tax;" 2d, to subscribe "the amount thereof " (that is, the amount of the tax); and 3d, to "issue bonds for such amount."

It will be observed the statute says nothing about a vote for or against issuing bonds. The authority is by an election to determine whether such subscription shall be made, and such tax levied, as may have been stated in the application of 25 voters, specifying the amount; and also it will be observed that the grant of general power in section 8, the mode of exercising which is provided in sections 9 and 10, is, 1st, to raise the money by a levy of a tax, and then to subscribe the same. There might be a vote for taxation and no vote for subscription; so there may be a vote for subscription and no vote for a tax. No authority is given to issue bonds. without a vote for both. When the necessary vote for taxation and also for subscription have been had the law gives power to issue the bonds, but does not require a vote that bonds shall issue. We have no warrant for substituting a vote that bonds shall issue, in lieu of a vote that a specified amount of tax shall be levied.

It is clear to my mind that it was intended that no power to charge the town was to be exercised until the majority of the voters had distinctly voted their willingness to be taxed the necessary amount. The provisions require, in my judgment, that the attention of the voters should be distinctly called to the fact that, if the vote was for the proceeding, a tax would be levied, and that the amount of the tax should be laid before them in the application for an election.

This is no idle provision of the statute. The language is express and plain, and, in my judgment, ought not to be disregarded. Men run in debt heedlessly and without carefully considering how soon they may be pressed for payment, and without considering well their probable means of payment. The law required that the amount of the tax necessary for this adventure should be specified, that the voter should have it in mind when he voted for subscrip

tion. This was not done; without it the whole proceeding was, in my judgment, ultra vires. This is a donation, a thing for which the town gets nothing. These people never did vote to levy this tax. The holders of the bonds were bound to look to the power, and they knew the burden of proving the power rested on them.

See, as to what constitutes a majority of votes, Louisville, etc., R. R. Co. v. Davidson Co., 1 Sneed, 637; Bridgeport v. Housatonic R. R. Co., 15 Conn. 475; Talbot v. Dent, 9 B Mon. 526; Bassett v. Mayor, 37 Mo. 272; State v. Binder, 38 Mo. 456 St. Joseph Township v. Rogers, 16 Wall. 664; Reiger v. Beaufort, 70 N. Car. 319 People v. Warfield, 20 Ill. 163; People v. Garner, 47 Ill. 246; People v Winant, 48 Ill. 263; State v. Winkelmeir, 35 Mo. 103; Bayard v. Klinge, 16 Minn. 249; Everett v. Smith, 22 Minn. 53; Gillespie v. Palmer, 20 Wis. 544; Vicksburg v. Lombard, 51 Miss. 126; Hawkins v. Carroll Co., 50 Miss. 735. As to submitting the proposition to levy a tax, see McMillan v. Lee Co., 3 Iowa, 311.

THE TOWN OF WINDSOR

v.

DANIEL B. HALLETT.

(97 Illinois Reports, 204. November 26, 1880.)

The plea of non est factum, in an action of assumpsit brought upon interest coupons attached to corporate bonds, is not a proper plea, and there is no error in striking it from the files.

Where all of the evidence is admissible under the general issue, that could have been presented under special pleas to which a demurrer was sustained, and such evidence was so admitted, the court will not consider an assignment of error for sustaining the demurrer. Under sections 8, 9, and 10 of the charter of the Bloomington and Ohio River R. R. Co., adopted March 10, 1869, power was conferred on towns along the line of such road to vote, under the notices therein specified, for and against the issue of township bonds as a donation in aid of the construction of its road, and upon a vote in favor of the same, the power was conferred to issue such bonds.

Under a law providing for a vote whether a township shall issue bonds in aid of a railroad, which requires the town clerk, upon receiving the proper petition, to "immediately give the notice required by law for an election," etc., it was Held that three notices were all that were required to be posted of the time and place of the election, the same as of an annual town meeting, and not five, as the law then required in case of a special town meeting. Under a law which authorizes the "proper corporate authorities" of a township to issue the bonds of the town when so authorized by a vote of the electors at an election called for that purpose, the supervisor and town clerk must be regarded as the proper corporate authorities for the issue and delivery of the bonds, it being but a ministerial act, though they are not such for the purpose of creating the indebtedness. There is a broad difference between the creation of a debt and merely executing the evidence of it.

APPEAL from the Appellate Court for the Third District;-heard in that court on error to the Circuit Court of Shelby county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. Henry & Cook, and Mr. T. F. Dove, for the appellant. Messrs. Thornton & Hamlin, and Messrs. Moulton, Chafee & Headen, for the appellee.

WALKER, J.-This record shows that the township of Windsor in Shelby county, in this State, issued its bonds to the amount of $50,000 as a donation, and in aid of the construction of a railroad. passing through its limits. An election was held, in pursuance of notices given, on the 7th day of October, 1869, to determine whether the donation should be made. It was held under authority conferred by the charter of the Bloomington and Ohio River R. R. Co., adopted on the 10th day of the previous March. The election resulted in favor of the donation, and the supervisor and town clerk issued the bonds, with interest coupons attached thereto, and this suit was brought on ten of these over-due coupons, payable on the 1st day of January, 1878, they being for the sum

of one hundred dollars each.

The action was assumpsit, and the declaration contained a count on each coupon. The defendant filed the general issue, a plea of non est factum, and five special pleas. Issue was joined on the general issue, and the plea of non est factum, on motion of the plaintiff, was stricken from the files, and a demurrer was sustained to each of the special pleas. The defendant abided by his special pleas, and went to trial on the general issue, and there was a finding and recovery for the plaintiff. Defendant thereupon removed the case to the Appellate Court, where the judgment of the Circuit Court was affirmed, and the defendant brings the case to this court, and assigns various errors.

The plea of non est factum was, for obvious reasons, an improper plea in the case, and there was no error in striking it from the files.

It is assigned for error that the court sustained a demurrer to each of the special pleas. We deem it unnecessary to discuss this assignment of error, as the defendant, on the trial in the Circuit Court, introduced all of the evidence that would have been admissible had any of the special pleas been found to be good. Some of them, if not all, are clearly bad, and, if any are good, no more evidence would have been heard under them than was allowed on the trial under the general issue. The defendant has therefore suffered no wrong, even if the court erred in sustaining the demurrer. All ΑΠ the evidence heard was admissible under that issue, and pleading the facts rendered it no more admissible. It would answer no beneficial purpose, therefore, to discuss this assignment of error.

We will, however, proceed to the consideration of such of the errors assigned as seem to be material to the decision of the case.

On the record presented from the Appellate Court, as it has, by affirming the judgment, found the facts, we can only consider questions of law, the statute prohibiting us from the consideration and settlement of controverted facts in the case.

In the circuit court, one of the controverted facts was whether the road was completed through the township, and the other conditions on which the donation was voted had been complied with at the time the bonds were issued. These facts were found for appellee. It was also a controverted question whether there was a proper petition presented to the town clerk to authorize him to call an election. Whether proper notices had been posted of the time and place of the election; whether the election was held, the vote duly canvassed, and whether a majority voted for donation, and the correct result announced, were all controverted questions and found for appellee. So was the controverted question whether the supervisor executed and delivered the bonds. The controverted fact of whether the bonds were delivered in escrow-upon condition or absolutely-was found against appellant.

It is claimed that the circuit court erred in admitting a copy of the petition presented to the town clerk, copies of the notices of the election, given and posted by him, of the tally list, and the certificate of the result of the election by the judges and clerks of the election, and of an affidavit made by the town clerk that he had posted the notices for thirty days before the election in three of the most public places in the township, naming them.

It is insisted that a proper foundation was not laid to admit secondary evidence, and the originals should have been produced. We think a sufficient search for the originals was proved, to show their loss. And the town clerk acting at the time, and who gave the notices, testified that he had copied correctly all of these papers in the town record book; that he had given the notices of which they were the originals. The identity of these as copies of the originals was proved by him, and they were properly admitted in evidence.

But it is urged that the vote, as taken, did not authorize the bonds to issue. It is not contested that this township was authorized by the charter to vote the donation, but it is contended that the authority was not pursued, and the non-conformity to the requirements of the act giving the power was such as to render the bonds void.

In the case of Town of Prairie v. Lloyd, ante, p. 58, sections 8, 9, and 10 of the company's charter were under consideration for construction. After a careful consideration they received a construction. It therefore becomes unnecessary to repeat the reasons there presented for the conclusion there reached. It was there held, that under these sections there was power conferred on the electors of the town to vote, under the notice given, for and

against the issue of such bonds, and that when the vote resulted in favor of the proposition, the vote conferred, under these sections, power to issue the bonds. The power must be considered as existing. This, then, disposes of the question whether there was power to vote for the issue of bonds, and thus bind the town for their payment when properly issued.

The

It is urged that the required notice was not given, and hence power to issue the bonds was not conferred by the vote. ninth section of the charter requires the town clerk to give "the notice required by law," and he only posted three notices, and as the law requires five to be posted for a town meeting, that this latter number was essential. We cannot yield assent to this proposition. The charter did not require the vote to be taken in town meeting, but at an election in the town. The language is, that the town clerk, on receiving the required petition, shall immediately give the notice required by law for an election to be held by the legal voters of*** such township, at the usual place of holding elections." What is the notice required by law? The fifty-second section of the township organization law requires the town clerk to give ten days' notice by posting printed or written notices of town meetings in three of the most public places in the township, and this was the requirement when this election was held. It is true, the eighth section of article 4 of the act of 1861 required notices for special town meetings to be posted in five of the most public places in the township. The law, as it now stands, requires notices to be posted in but three places, for either general or special meetings. We are unable to see that this was not the notice required by law. It was not for a town meeting of either character, but was for an election to be conducted as other elections. At the annual meeting an election is held for officers by opening poll-books, receiving ballots, making tally lists, and ascertaining and certifying who is elected. And this was for an election, not of officers, but to determine the question submitted to their votes. The ninth section of the charter requires an election, and not a town meeting. The latter, in its proper sense, is not an election. It is a meeting for the transaction of the business of the town, the adoption of by-laws, and other matters of that character. at an annual town meeting those engaged in it hold an election, conducted like other elections, for the town officers, and such an election was, no doubt, contemplated by the framers of the ninth section; and the number of notices therefor is all that is required by the charter. Had it required the calling of a special town meeting, then, it may be, five notices would have been required, but it was an election that was to be called.

It is next insisted that the supervisor and town clerk do not represent the corporate authority of the township, and the act only confers the power on the "proper corporate authority." The ex