delivered the opinion of the court. He stated the facts in the foregoing language, and continued:
The provision in. the charter of the railroad company *561 authorizing the issue of bonds in payment of subscriptions by municipal bodies to its capital stock, is based upon article 12, section 14, of the Constitution of the State, which declares that—
“ The legislature shall not authorize any county, city or town to become a stockholder in, or to lend its credit to, any company, association or corporation, unless two:thirds of the qualified voters of such county, city or town, at a special election or regular election to be held therein, shall assent thereto.”
It is claimed, on behalf of the plaintiff in error, that the qualified voters referred to in the Constitution of Mississippi and the charter, of the railroad company, are those who have been determined by the registrars to have the requisite qualifications of electors, ,and who have been enrolled by them as such, and that it requires a voté of two-thirds of the whole number enrolled as qualified to vote, and not merely two-thirds of such actually voting at an election for that purpose, to authorize the issue of such bonds as those in suit.
That presents the single question for our decision, for the averment in the last plea, that “ the board of supervisors fraudulently and illegally issued and delivered the bonds and coupons,” has reference merely to their being issued without the alleged requisite assent of two-thirds of the registered voters, and there is nothing alleged in the plea from which it can be inferred that the injunction bill, pending which the bonds, it is charged, were issued and delivered, was based on any other infirmity.
We do not think the plaintiff in error is precluded from raising this question by any recitals in the bonds. They contain no statement of any election called or held, or of the vote by which the issue of the bonds was authorized. They do mot embody even a general statement that the bonds were issued in pursuance of the statutes referred to. The utmost effect that can be given to them is, that ©f a statement, that a subscription to the capital stock of the railroad 'aompafly was authorized by the statutes mentioned, and that the sum mentioned in the bonds was part of it. They serve simply to-point out the particular laws under which the transaction may law
*562
fully have taken place. They say nothing whatever as to any compliance with the requirements of the statute in respect' to which the board of supervisors were authorized and appointed to determine and certify. ‘ They do not, therefore, within the rule of decision acted .on by this court, constitute an estoppel, which prevents inquiry into the alleged invalidity of the bonds.
Northern Bank of Toledo,
v.
Porter
Township,
On the other hand, we do not agree with the counsel for the plaintiff in error, that the pendency of the injunction bill, re- ■ ferred to in the last plea, affects the title of the defendant in error, as a
bona fide
holder of the bonds for value; or that this court is bound to follow and apply the judgment of the Supreme Court of Mississippi, in that case, reported as
Hawkins
v.
Carroll County,
The defendant in error was no party to that suit, and the récord of the judgment is therefore no estoppel. The bonds were negotiable, and there was, therefore, no constructive notice of any fraud or illegality, by virtue of the doctrine of
lis-pendens. County of Warren
v.
Marcy,
The decision in
Hawkins
v.
Carroll County,
above referred to, is not a judgment of the Supreme Court of Mississippi construing the Constitution and laws of the State, which, without regard to our own opinion upon the question involved, we feel bound to adopt and apply in the present case. It is a de
*563
cisión upon the very bonds here in suit, pronounced after the-controversy arose, and between other parties. It was not a rule previously established, so as to have become recognized as settled law, and which, of course, all parties to transactions, afterwards entered into would be presumed to know and to conform to. When, therefore, it is presented for application by the courts of the United States, in a litigation growing out of the same facts, of which they have jurisdiction by reason of the citizenship of the parties, the plaintiff has a right, under the Constitution of the United States, to the independent judgment of those courts, to determine for themselves what is the law of the State, by which his rights are fixed and governed. It was to that very end that the Constitution granted to citi-. zens of one State, suing in another, the choice of resorting to a federal tribunal.
Burgess
v.
Seligman,
We have, however, considered the reasoning'of the Supreme Court of Mississippi, in its opinion in the case of
Hawkins
v.
Carroll
County, with the respect which is due to the highest judicial tribunal of a State speaking upon a topic as to which it is presumed to have peculiar fitness for correct decision, and, while we are bound to admit the carefulness •and fulness of its examination of the question, we are not able to adopt its conclusions. On the contrary, we are constrained to follow the decision in
St. Joseph Township
v. Rogers,
Much, stress in the argument was laid by the Supreme Court of Mississippi upon the registration record, as furnishing the standard by which to ascertain the proportion of qualified voters, whose assent was required by the Constitution. On this point, they say,
But this reasoning, as it seems to us, does not meet, much less overcome, the difficulty of the argument. The Constitution of Mississippi, although it does not recognize any voters as qua1’tied, except such as are registered, does not make all persons, registered as such, qualified. And yet, if it is to be construed, in the clause in question, as referring to the registration as, conclusive of the number of qualified voters, then no proof is competent to purge the list of those Avho never Avere qualified, or have died, removed, or become otherAvise disquali *565 fied, thus obliterating the distinction between registered and qualified voters; and if, on the other hand, it is to be construed as meaning voters qualified, in fact and in law, without reference to the sole circumstance of registration, then the body of electors is as indefinite as though there were no registration, and the determination of the whole number, if an actual enumeration is required to determine how many are two-thirds thereof, is completely a matter in pais, and must be inquired of and ascertained, in each case, by witnesses. The difficulty, if not the impossibility, of reaching results by such methods, amounts almost to demonstration, that such could not have been the legislative intent, or the meaning of the Constitution. The number and qualification of voters at such an election, is determinable by its result, as canvassed, ascertained and declared by the officers appointed to that duty, or as subsequently corrected by a contest or scrutiny in a direct proceeding, authorized and instituted for that purpose ; it cannot be contested in any collateral proceeding, either by inquiry as to the truth of the return, or by proof of votes not cast, to be counted as cast against the proposition, unless the law clearly so requires. In our opinion, the Constitution of Mississippi did not mean, in the clause under consideration, to introduce any new rule. The assent of two-thirds of the qualified' voters of the county, at an election lawfully held for that purpose, to a proposed, issue of municipal bonds, intended by that instrument, meant the vote of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. The words “ qualified voters,” as used in the Constitution, must be taken to mean not those qualified and entitled to vote, but those qualified and actually voting. In that connection a voter is one who votes, not one who, although qualified to vote, does not vote.
We are consequently, of opinion, that there is no error in the judgment of the Circuit Court, and it is accordingly
Affirmed.