*1 Bayes. of Town v. Eaves. of Coloma Town a to legislative enactment, municipality, Where, by a railroad and to issue the stock of its to subscribe to officers, some such as but on precedent condition, municipal payment, gathered and favoring where from the subscription, were invested with that the officers municipality the enactment that it with, has that condition been complied to decide whether a bona and held issued them by in the bonds purchaser, made been, by binding and for the recital municipality; is conclusive of the tribunal. fact itself a decision of the by for tbe Court of United States Circuit Error of Illinois. Northern District below recover the
Assumpsit brought by plaintiff certain attached to due on coupons amount purport- Coloma, town of issued through ing officers, and Rock River Railroad Com- Chicago proper $50,000 of the town to of pany, is as of the bond follows: The form said company. “ [$1,000. America. States of United “ County Whiteside, of Town Coloma:— "State Illinois, of of “ Coloma, these That the presents, Know all men of township Whiteside, Illinois, and of of State acknowledges county and be indebted and Rock Rail- Chicago itself owe River bearer, $1,000, in the sum of lawful road money Company, States; which sum said town Coloma promises pay United and Rock River Railroad Company, or the bearer Chicago 1881, hereof, at the officeof July, on first the treasurer day aforesaid, Illinois, in the State of of Whiteside county bond, thereon first of this with interest from the the presentation 1872, annum, at the rate ten centum per per day January, office treasurer of the at the county annually payable aforesaid, on the surrender of the presentation Whiteside annexed coupons. S. $5 [U. revenue-stamp.] “ This under a law bond is issued virtue of of the State ‘ Illinois An Act and Rock incorporate entitled Chicago 24, 1869, in ac- approved
River Railroad March Company,’ Coloma, cordance with a vote electors of said township Oc,t.1875.] of Coloma 1869,in held 28, accordancewith said July regular ‘ of the State of Illinois entitled An Act a law law, and under debts counties, the railroad paying provide fund 1869; towns,’ and, cities, when April force townships, *2 officeof the State in the auditor’s is State this bond registered the Illinois, and interest State treas- paid by the will principal urer, last-mentionedlaw. as said provided by “ whereof, of said In town-clerk town witness first their hands and seals this day have hereunto set January, a.d. “ M. R. Supervisor. (Signed) Adams, [seal.] Town-Cleric. J. “(Signed) Davis, D. [seal.]” town, resisted alleged was mainly Recovery of the town to the officers issue of a want power ground the town had not been bonds, voters of because of the town’s question notified vote upon making subscription question. case, was rendered for the the trial of
On judgment and interest for the amount of after coupons, plaintiff they due. were C.
Mr. M. Osborn plaintiff. Grant, J. contra.
Mr. Strong Mr. Justice delivered the of the court. opinion the record that is a bona appears, by plaintiff owner of holder and which the suit is coupons upon founded, obtained them due, before were and for a having consideration The bonds to which paid. valuable the coupons attached were given payment stock $50,000 of the capital Rock River Chicago for which the town received in return Company, Railroad shares, hundred each, $100 of five certificates in the stock stock retains, That town but it resists company. and of the the' attached coupons them, were issued without lawful alleging authority. of such a
Saying nothing dishonesty defence while the consideration for which the bonds were retained, we come at once to the question, was shown stock and for the subscription, Ot. Town of Coloma ob- outset, it bonds. At
consequent its own town and served between the question town and person claiming between the is rather agents: town as The of its agents. rights the action through as different from its rights its agents may very against such, dealt with its who have agents parties honestly against of their authority. on faith apparent Illinois, an act Chicago
By River Railroad Rock Company incorporated from Rock Falls River to build and a railroad Rock operate of about one hundred miles. a distance Chicago, thirty enacted, that, to aid con- tenth act section road, or town- struction of said any incorporated city, laws organization under township ship, organized road, State, subscribe to or near the route of said might along the town of stock of That said capital company.” this section one of the divisions municipal empowered by *3 that the railroad was and also built to subscribe fully appears, But issued. it is the bonds were upon into town before act that the defendant relies. eleventh section of the That -is section as follows: made until the question
“No such shall be subscription town, or city, voters of said legal township, to the submitted be made. And' is the clerk of subscription proposed which town, or required, upon city, township, hereby presentation such are citizens who a at' least ten voters legal petition signed by town, in such township, stating amount city, and tax-payers subscribed, notices in three public places be to post up proposed shall be not less posted which notices in each or township; town election, holding notifying legal such thirty days prior than to meet at the usual places or township such town voters town or township, purpose elections such holding it shall appear for If subscriptions. such voting against town, such all the voters of city, township, a majority legal ‘ election, for it shall at such have voted be subscription,’ voting trustees, board or other ex- of the of the president town, in townships, officer such and of supervisor ecutive said railroad subscribe to stock of capital the amount town, so voted to city, township, name such receive from such subscribed, company proper be Oct. 1875.] therefor. He shall also execute said company,
certificates town, city, name of such or township, bearing interest a term annum, at ten cent bonds shall run per per which the same not more than and the interest twenty years, be made shall shall which said bonds payable annually; officer, such or other executive signed president township, attested clerk of the city, name the whose bonds are issued.” Sect. 12 It shall be the of the clerk provides, any town, or a vote shall be in favor of township, city, thereafter, ten within transmit subscriptions, days county- of their counties a or statement of the vote given, clerk transcript subscribed, amount so voted to be and the rate of interest be paid.” But conced- Most of these are provisions merely directory. do, was, make that the we subscription ing, act, made the eleventh section of the upon dependent the town result of the submission of the question, subscribe, to of the would a popular township, of the legal subscription by majority approval election, of the town at voters inquiry voting preliminary the directions be, How is it to be ascertained whether must vote, followed ? whether there has been any the elec- voters or whether majority did, in vote in favor of a ? Is ascer- tion subscription made, before of these tainment things or must the bonds the bonds are issued ? it be after and before sold, and be renewed time a claim made every ? The to us of a bond or a latter coupon appears reasonable construction statute. inconsistent was to aid Its avowed purpose building *4 in the hands of the the bonds of company placing sale; bonds These were intended for municipalities. assenting be be to that would put and it was expected rationally that, considered, have markets. It must been distant them, obtained for more advantageous higher price and for towns the cities and would be the bonds in stock. which exchange Every gave capital adverse to tended to the market-value was thing depress not could It had in view. the object legislature would be their disastrously market-value overlooked were under if distant obligation affected purchasers demanded their whenever before purchase, pay- inquire interest, certain ment of whether contingencies principal bonds had before the were issued, contingencies fact happened almost for them which it would be impossible happening such an eases to ascertain with Imposing many certainty. tend to defeat would pri- obligation upon purchasers view; aid in the had namely, mary purpose legislature not to construction of the road. Such an ought interpretation avoided; statute, if it can be reasonably be given We think it be avoided. other, is to be ascertained whether some time or
At followed; whether there the act have been directions of vote; or whether a voters majority any popular did, vote in favor of the sub- at intended ascertaining plainly duty scription. all; somewhere, and once be vested only persons duties to elec- of who have perform respecting spoken any it, are town-clerk and the tion, and action consequent upon other executive officer of the town. city therefore, that intended a fair presumption, least, officers, or should one them determine that those to a the act whether the prior requirements subscription been of a railroad had met. This to the stock company pre- the twelfth sec- provisions strengthened by sumption tion, make it the clerk to transmit statement, oath, verified his transcript county-clerk with other in case a the vote particulars, given, he to How is if he has been voted. perform election, determine what the voters conduct therefore, If, there could be obligation decided? resting purporting proposing purchase accordance under such authority, issued legislative vote, statute inquire provisions followed, conditions whether the with, must issue had been inquiry lawful complied officer of or executive town-clerk munici- addressed *5 Oct. 1875.] Coloma v. Eaves. — the whose it was to ascertain and very person duty
pality, what were the facts. The more the decide statute is exam ined,- inore evident does this become. The eleventh section declared, that if it should that a (quoted above) appear major voters of the legal “ ity city, township, voting, had voted the executive officer and clerk subscription,” should subscribe and execute bonds. “If it should appear,” said the act. when ? before the sub Appear Why, plainly, executed; was made and the bonds -were not after- scription this, wards. to whom ? In there can be no regard Appear court, doubt. not to a after the bonds have been Manifestly sold, for, on the market and when called but put if it shall to the whose it was made to appear persons province action, had been ascertain what done to their own preparatory whose to issue the if the vote duty appeared under, to them to such action the law. These justify persons were the and town-clerk. Their to issue the supervisor right bonds was made to them of the dependent upon appearance of the conditions devolved performance precedent. certainly some to decide this person persons question; preliminary and there can be no doubt was intended who the law to be Niehols, In the arbiter. Commissioners 14 Ohio St. “ statute, was said that bonds should providing county delivered commissioners until a sufficient sum had otherwise, stock-subscriptions, provided by complete railroad, and a certain them the of deliver imposing upon duty made, the bonds when without provision indi ing c or tribunal to determine that person ating any necessarily commissioners; and, if delegates delivered the bonds will not be invalidated.” improvidently,- case, the In the person whose it was whether the to determine to a statutory requisites authorized issue of the and to an bonds had been performed those whose it was also to were issue the bonds in the event of such The statute performance. required super- visor other executive officer not to subscribe for the stock, also, but clerk, to execute bonds conjunction in the name of the town for the amount company The bonds subscription. required signed Town of officer, other executive and to be attested supervisor
the clerk. were so executed. The They *6 them; clerk in the officeof the signed they registered State, act, that, in auditor accordance with an requiring to their must un- registration, certify der oath to the auditor that all conditions to preliminary their issue the law had been with. On required by complied each bond the auditor certified the It was after registry. this that were issued. And the bonds themselves recite they “ are issued under and virtue of the act incorpo- 24,1869, the railroad March rating company,” approved in accordance with the the electors of said township Coloma, 28,1869, at a held in accordance regular July this, said law.” After all it is not an open question, between a bona holder of the bonds and the township, fide all the whether to their issue had been prerequisites complied with. from and Apart reasonable beyond presumption law, that the officers of the the township-officers, discharged the matter has into duty, passed judgment. decide to their necessary prerequisites decided, issue had been have completed certified their de- cision. have declared the to have They contingency happened, on the occurrence of which the to issue the bonds decision; was Their recitals are such a complete. beyond those bona is not bound to look for evidence of purchaser the existence of He is bound to know the law things pais. conferring upon the bonds on municipality give but whether that has happening contingency; hap- is a the decision of question which is pened —others, the law confided to to those most to decide competent —it, is, and which the in no purchaser general, condition to decide himself. we
This understand to be the settled doctrine of this court. Indeed, some of our decisions have farther. In the lead- gone 544, case Knox v. 21 How. the decision ing was Aspinwall, rested two of them was that One the mere grounds. recital that were issued containing act, and in was a sufficient pursuance under legislative basis an that the conditions assumption purchaser 491 Oct. 1875.] to issue was authorized which the county (in case) with; said and was that the purchaser them complied evidence of such farther for not bound look compliance, it. This did sup not affirm position though British Bank v. reference to The Royal Torquand, ported by Chamber, which case in the Exchequer Ell. & Bl. 6 it, which was concurred the decision sustains fully in Knox v. taken Aspinwall all This judges. position in this court. It was in Moran been than once reaffirmed more 732; Hackett, v. in Mercer Black, County v. Miami County, 784; and in ; Schenk, 5 id. v. Mayor Wall. 83 Supervisors and, overruled; been has never Muscatine, 1 id. cor-, doubts respecting whatever suggested it has sometimes been to which the full extent rectness to the entire correctness announced, no doubt of there should be That, we Knox v. asserted in Aspinwall. other rule *7 it in that think, reason and been so seated authority, has firmly in 419 is has been well stated sect. cannot be shaken. itWhat of After revieAVof decisions of Dillon on Munic. a Corp. “ remarks, If, a construction true court, the author upon enactment conferring authority (viz., legislative bonds certain conditions), corporation, issue upon municipal tribunal, are officers, invested or a body or certain whether the has to decide condition precedent with power with, it be that their then well may determination complied will, decide, are matter authorized to a in pais, value, for bind the This bondholder favor corporation.” cautious statement of doctrine. restated may very% form. Where has a different legislative slightly officers, a for subscribe been given municipality, and to of a bonds stock railroad municipal company, condition, but some such as a precedent in payment, it where subscription, favoring enactment that the from the officers legislative gathered with Avereinvested decide whether municipality with, that condition their recital complied issued been, it has made in bonds them and held by conclusive Iona and binding upon purchaser, for itself a decision the fact the municipality; 492 v. of Coloma 24 How. v. tribunal. In Bissell Jeffersonville, 287, it council of the were the common appeared city subscribe for stock in a railroad authorized for the on the to issue bonds subscription, peti voters three-fourths of legal tion city. subscribe, reciting council a resolution pre adopted voters had that more than three-fourths legal amble it, and city-clerk authorized mayor petitioned for the subscribed. The bonds bonds sum deliver sign issued common recited that were by authority council, voters had and that three-fourths legal peti same, In a the charter. suit sub tioned for as required by holder for value an innocent to recover sequently brought by interest, held it was inadmis the amount coupons unpaid that three-fourths of the to show sible for defendants for the not stock sub voters of the petition signed city was made Van v. Madi A similar ruling Hostrop scription. Hackett, 291, and in v. id. County son Wall. Mercer City, been asserted in this court The same principle recently consideration, and it must be considered as after grave very Wall. it is Rogers, In St. settled. Joseph's Township —thus: stated bonds to aid the construction to issue Power manner, in a special conferred municipality
is frequently conditions, ; but if regulations, qualifications to certain subject were issued their recitals that conformity appears to those and quali- conditions pursuant regulations, these fications, all these recitals incorrect will proof in suit on the bonds corporation a defence constitute sole province if it that was municipal appears coupons, *8 to decide whether not there had bonds executed the officerswho condition, regulation, an antecedent compliance been fulfilled.” it is alleged qualification, Fulton, the case of Marsh v. 10 Wall. is nothing There referred, at all inconsistent with to which we case, were no In that there recitals asserted. the rule thus bonds; no decision that the conditions there was prece- subscribe, or to the gift subscription, dent therefore, was, The question open. had been performed. Oct. v. 1875.] we have said What case disposes without the consideration of the matters particular necessity urged of the defendant It was below. inadmissible argument to show shown; and, what even if it attempted admissible, the to assimilate the case to effort Marsh v. Fulton would fail. There was for the stock of a differ- ent from that for which the corporation people voted: here it was not. Judgment affirmed. Bradley Mr. Justice delivered following concurring opinion: I dissent from case, of the court in this so far as opinion be construed to reaffirm the first asserted may point wit, case of Knox v. that the mere exe County Aspinwall; cution of a bond officers with the of ascer charged whether a condition taining performed conclusive If, when the law proof performance. requires a vote of issued, before bonds can be tax-payers, of a or the township, other judge probate county, officer or is the officer magistrate, ascertain designated vote has been also the officer given, proper execute, execute, bonds, and who does and if the bonds contain a themselves statement or recital that such vote has then the Iona need given, purchaser go back no farther. He has a on the as a statement right rely determination of the But a mere execution and question. not, issue of the bonds such recital is without my judgment, sufficient; conclusive. but the bemay prima contrary facie to me to be the true shown. This seems distinction to be taken on this and I do not think that the subject; contrary this court. There have been ever been decided various cases, examined, but the when dicta to the contrary; carefully all will be found prerequisites have.had necessary sustain case. This according view my view was announced court case distinctly Wall. 13. In the case Lynde Winnebago, County consideration, now under there a sufficient in the bond show that the was held and proper proper was executed bond the officerswhose given; *9 Murdock. Town Venice I alone,' this was to ascertain this and these facts. On ground, concur in the court. of the judgment Miller, Davis,
Mr. Justice Mr. Justice and Mr. Jus Field, tice dissented. of Murdock. Venice any supervisor An 1. act of the of town New York authorized town, thereby county in Cayuga, and such who were the assessors of commissioners, money supervisor to act with the as to borrow twenty-five aid in amount dollars to the construction thousand through passing bonds of the town execute the however, supervisor act, provided The that the and commission- therefor. until the written ers should have the bonds assent of two- no tax-payers, appearing assessment-roll of such thirds of the resident money borrowed, previous such should town next to the time when commissioners, supervisor and been obtained such some one them, together county, said more and filed the clerk’s officeof commissioners, them, supervisor two affidavit of such statement, persons the effect that whose written attached such comprise two-thirds of all the resi- assents are attached and filed thereto tax-payers such dent the assessment-roll of town next of said town on required previous Subsequently was thereto. a written assent- the effect office, signed representing persons filed who themselves to tax-payers. Upon instrument indorsed the affidavit resident commissioners, supervisor that the whose of the and one of the composed two-thirds of all the resi- names were subscribed to assent issued, signed by tax-payers The dent of said town. commissioners, reciting that, pursuance supervisor of said act of the tax-payers legislature, resident written of two-thirds assent county of said town obtained and filed in office clerk pay money Cayuga,” promised the sum of therein named said .town Held, appointed province 1. it was the bearer. That question, decide the condition commissioners fulfilled; did their decide exercise of bonds; issuing that the bonds was a declaration of their commissioners, procured supervisor and who what 2. That decision. tax-payers, means purported written assent of the of knowl- to be the which, signatures paper, edge touching genuineness from that, case, purchaser haveand could not a suit the nature of the estopped disputing from a bona holder of the the town was prove genuineness signa- validity, and that he not bound tures to the written assent. Appeals of the State of New on cases of the Court decisions York statute, facts, are not conclusive arising and similar state same statutory court, present a con- do not case of on this as such decisions struction.