Estill County v. Embry

112 F. 882 | 6th Cir. | 1902

WANTY, District Judge,

after making the foregoing statement, delivered the opinion of the court.

The defendant claims that the judgment should be set aside because the statute under which the bonds were issued and delivered is unconstitutional; and, further, if the statute .is held to be valid, the bonds were not legally delivered, because the conditions imposed by the charter and contract had not been performed. The particular feature of the act, that the defendant contends makes it unconstitutional, is the provision which authorizes the county judge, after the' execution of the bonds, to place them in the hands of a trustee selected by him, to be held until the conditions of the contract of subscription should be complied with by the railroad company. Under the' constitution of Kentucky, as it existed at the time of the act authorizing the subscription to the stock of the railroad company, the legislature had the power to enact such a statute. This is admitted by counsel for defendant, blit they contend that because the act directed that the bonds, after being executed, should be placed in the hands of a trustee to be named by the county judge, “to be held by said trustee until said'railroad company may be entitled to the same” according to the terms of the contract, it is unconstitutional. A careful perusal of the constitution of Kentucky fails to disclose any provision upon which this claim can be based. If the legislature had power to authorize the issuance of these bonds upon performance of certain conditions, a provision for the manner of their delivery after the conditions had been performed could not make an otherwise valid enactment void. But this statute has been declared to be a constitutional act in the case of Young v. Conroy, above referred to by the court óf appeals of the state of Kentucky, to which that cause was taken by the defendant here. The construction there placed upon this statute by the highest tribunal of the state is binding on this court, and therefore the contention that the statute is unconstitutional is not now open to the defendant in this jurisdiction.

The claim that the requirements of the contract regarding the building of the road before the bonds might be delivered had not been complied with, as well as every other question -sought to be litigated here, was adjudicated in the case of Young v. Conroy, in the court of appeals of Kentucky, adversely to the defendant when the delivery of the bonds was decreed. The question of the jurisdiction of the Louisville chancery court over the parties and i'ts authority to determine the questions presented in that suit were passed upon after a voluntary appearance' by this defendant, and the judgment there is bindin'g upon it here. The plaintiff in this action is an assignee of these coupons after they became due, and it is contended that the judgment, even if it is binding between the parties to the causei litigated, is not between the parties to this action. The plaintiff in this action purchased the coupons from the plaintiff in the cause wherein they were adjudicated valid, and is therefore a privy to whom all the advantages and infirmities attaching from that judgment inure.

The cases in the United States supreme court illustrating this rule are reviewed in the opinion of Justice Harlan in the case of Southern Pac. R. Co. v. U. S., 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355, in which he announces the general rule, which disposes of every question raised by the defendant here, as follows:

“A right, question- or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery cannot be disputed in a subsequent suit between the same parties or tbeir privies; and, even if the second suit is for a different cause of action, the right, question, or fact, once determined, must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.” Southern Pac. R. Co. v. U. S., 168 U. S. 48, 49, 18 Sup. Ct. 27, 42 L. Ed. 355.

See, also, City of New Orleans v. Citizens’ Bank of Louisiana, 167 U. S. 371, 17 Sup. Ct. 905, 42 L. Ed. 202, and Union & Planters’ Bank v. City of Memphis (C. C. A.) 111 Fed. 561.

The judgment must be affirmed.