text:
Lyon v. Pollock

APPEAL from the Circuit Court of the United States for the Western District of Texas.

The appellant, Lyon, in 1873, recovered judgment in the Circuit Court of the United States against the appellees, Pollock and wife, in an action for two parcels or lots of land situated in the city of San Antonio, in the State of Texas. Thereupon the appellees brought the present suit on the equity side of the court to enjoin the enforcement of the judgment, and to compel a conveyance to them of the title to the land; or, if that relief could not be granted, to obtain a decree for the value of their improvements, in accordance with a statute of the State.

The bill of complaint states, as grounds for relief, that the judgment was obtained upon the trial of the legal title, and that their rights are of an equitable nature, constituting an equitable title to the land. It sets forth that on the 24th of August, 1865, Lyon, being owner of the lots, executed an instrument, a copy of which is appended and made part of the bill, authorizing one I. A. Paschal to sell any and all real estate of which he, Lyon, was then seised in the county of Bexar, in Texas, and that the premises in controversy are a portion of this property; that previously, and up to the 1st of July, 1865, one W. A. Bennett had been the attorney and agent of Lyon, having full power to manage, control, and sell all or any portion of his property, real or personal; that about this time Bennett transferred the business of his agency to Paschal, and communicated the fact to Lyon; that the latter thereupon executed the instrument mentioned; that after this transfer and the delivery of the instrument, Paschal was treated and recognized by him as his duly authorized agent and attorney; and, as such, he sold the premises in controversy to the complainants in October, 1865, for the sum of $425, and executed a conveyance to them.

The bill further states that Lyon subsequently made no claim to the lots, but acquiesced in their sale, and did not attempt to exercise any control over them, nor pay any taxes on them; that the complainants at once took possession of the lots, and have since been in their undisturbed use and enjoyment, claiming the same as their own, and have paid the State, city, and county taxes, and have made permanent improvements on them of the value of $6,250; that the lots sold for their full value; and that Paschal used the money received from the sale, with Lyon's consent, in part payment of assessments on stock owned by him in the San Antonio Gas Company, a corporation existing in the county of Bexar.

The instrument mentioned in the bill as authorizing Paschal to sell Lyon's real estate is a letter of Lyon, of which the following is a copy, omitting immaterial portions:--

'MONTEREY, Aug. 24, 1865.

'I. A. PASCHAL:

'MY DEAR SIR,-I am just in receipt of a letter from Mr. Bennett, informing me that he has placed all my papers for safe-keeping in your possession. In better or safer hands he could not have given them. The position you have occupied during the past four years of the war is a very enviable one, as glorious as it has been dangerous. I congratulate you upon the issue. I am sure you have no reason to regret your decision to abide by the Union. . . . I am unable to go to San Antonio at present. My family are sick in the North, and demand my presence there. Mr. Kinney's death leaves a large business in my hands to be settled. I wish you to manage as you would with your own. If a good opportunity offers to sell every thing I have, I would be glad to sell. It may be parties will come into San Antonio who will be glad to purchase my gas stock and real estate. I shall be glad if you find time to write to me. If you will, give me a description of affairs as they exist at present. I shall probably remain here two months yet. . . . I enclose a letter for my wife. It is impossible to send letters by Matamoras. The road has been blockaded for a long time. If you have a regular mail, I shall be greatly obliged if you will mail this letter; if no mail, will you do me the favor to send by private hands to New Orleans?

'Most respectfully yours,

'I. L. LYONS.'

The previous power of attorney to W. A. Bennett authorized him to take charge of and control all Lyon's property of every kind, real and personal, in the county of Bexar, in Texas, and to sell and convey the same upon such terms and upon such conditions as he might deem best, and to collect and receipt for all debts, rents, and profits due or to become due to Lyon, and to represent him in all matters relating to the stock of the gas company.

The answer of Lyon to the bill admits that on the 24th of August, 1865, he was the owner of the lots in controversy; that prior to the 1st of August of that year, W. A. Bennett was his lawful agent and attorney, authorized to manage his property, and sell it or any part of it; and that prior to the 24th of that month he transferred his papers to Paschal for safe-keeping; but it denies that the letter of attorney from him to Bennett contained any power of substitution. It admits the writing of the letter by him to Paschal acknowledging the receipt of Bennett's letter, informing him of the transfer of the papers; but denies that he conferred, or intended by it to confer, any authority to sell the property, or that he afterwards treated or recognized Paschal as his agent or attorney with such authority. It also denies that Lyon ever ceased to regard the lots as his property, or that he has ever acquiesced in their sale; and avers that he was prevented from taking possession of the property after the sale only from fear of bodily harm. It also avers ignorance by Lyon of the payment of taxes on the property or of the alleged improvements; and that the payment of the taxes, and the improvements, if made, were without his knowledge or consent.

In explanation of his absence from Texas, the answer states that, when the rebellion broke out, it was known that he was a Union man, opposed to the secession movement, and that his life was in consequence threatened by a secret combination of men known as 'the Knights of the Golden Circle,' and that he was compelled to leave the country secretly and in haste; that after the war was at an end he believed that his life would have been in imminent danger had he returned to Texas and attempted to recover his property. It avers that if the money received by Paschal were appropriated for the payment of assessments upon stock of the San Antonio Gas Company, such disposal of it was unauthorized and without his knowledge or consent. It also refers to the judgment at law recovered by him in the Circuit Court of the United States for the lots in controversy, and insists that it settled all questions between the parties as to the property in suit.

To the answer a replication was filed and proofs were taken, which showed that rumors had reached Lyon as early as 1867 that sales of some of his real estate had been made by Paschal, and that assessments had been levied on his stock in the gas company, and generally tended to establish the allegations of the bill. In the opinion of the court below they sufficiently established the equitable right of the complainants to a conveyance of the premises from Lyon. A decree directing such conveyance, with a perpetual injunction against the enforcement of the judgment for the possession of the lands, was accordingly entered, from which the present appeal is taken.

Mr. Philip Phillips and Mr. W. Hallett Phillips for the appellant.

No counsel appeared for the appellees.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Lyon v. Pollock


text: Talk:Lyon v. Pollock

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Lyon v. Pollock


text:
Lyon v. Pollock/Opinion of the Court

This case turns upon the construction given to the letter of Lyon to Paschal, of the 24th of August, 1865. That letter clearly did not authorize the execution of a conveyance by Paschal in the name of Lyon to the purchaser. Its insufficiency in that respect was authoritatively determined in the action at law for the lands; the instrument executed by Paschal as the deed of Lyon being held inoperative to pass the legal title. The question now is, was the letter sufficient to authorize a contract for the sale of the lots? To determine this, and give full effect to the language of the writer, we must place ourselves in his position, so as to read it, as it were, with his eyes and mind. It appears from his answer, as well as his testimony, that he was in great danger of personal violence in San Antonio, shortly after the commencement of the rebellion, owing to his avowed hostility to secession, or at least that he thought he was in such danger. He apprehended that his life was menaced, and was in consequence induced to flee the country. He possessed at the time a large amount of property, real and personal, in San Antonio. This he confided to the care of his partner, Bennett, to whom he gave a power of attorney, authorizing him to take charge of and control the same, and sell it for whatever consideration and upon such terms as he might judge best, and execute all proper instruments of transfer; and also to collect and receipt for debts due to him. Bennett took possession of Lyon's property and managed it until July, 1865, when he transferred it, with the business and papers in his hands, to Paschal, and at once informed Lyon by letter of the transfer. It was under these circumstances that the letter of Lyon to Paschal, which is the subject of consideration, was written. Its language is: 'I wish you to manage [my property] as you would with your own. If a good opportunity offers to sell every thing I have, I would be glad to sell. It may be parties will come into San Antonio who will be glad to purchase my gas stock and real estate.'

Situated as Lyon then was, a fugitive from the State, it could hardly have been intended by him that if propositions to purchase his property or any part of it were made to Paschal, they were to be communicated to him, and to await his approval before being accepted. He was at the time at Monterey, in Mexico, and communication by water between that place and San Antonio was infrequent and uncertain; and he states himself that it was impossible to send letters by Matamoras, as the road was blockaded. Writing under these circumstances, we think it clear that he intended by his language, what the words naturally convey, that if an opportunity to sell his property presented itself to Paschal, he should avail himself of it and close a contract for its sale.

His subsequent conduct shows, or at least tends to show, that such was his own construction of the letter, and that he approved, or at least acquiesced in, the disposition made of his property. He must have been aware, from the laws of the State, which he is presumed to have known, that taxes were leviable upon his property, and that unless they were paid the property would be sold for their payment; yet he confessedly took no steps from 1865 to 1873 to meet them, and thus prevent a forced sale of his property; a course perfectly natural if it be conceded that the property was in charge of an agent, with power to manage and sell it as his judgment might dictate. His indifference, also, after rumors reached him that a sale of his property had been made by Paschal in 1867, can scarcely be explained upon any other hypothesis. The same may be said of his inattention to the payment of the assessments upon his stock in the San Antonio Gas Company, of which he had received intimations. From the time Paschal took charge of his property, in 1865 to 1873, a period of eight years, he certainly manifested, if his own story be accepted, a most extraordinary want of interest in regard to his real property, of great value, situated in an unfriendly community, subject to taxation, and liable to be sold if the taxes were not promptly paid; and also in regard to his personal property, consisting of shares in the San Antonio Gas Company, of great value, liable to assessments, and to sale if the assessments were not paid when due. It is much more reasonable to suppose that he knew of the sales made of the real property and of the assessments on the shares, and that he was undisturbed by the reports which reached him, because he considered that the sales were made and the assessments paid from the proceeds, by his authorized attorney.

The testimony of Bennett tends also to corroborate this view. He states that he knew from his correspondence with Lyon that he treated Paschal as his agent for the sale of his property. The conduct of Lyon, as expressive almost as any language which he could use, cannot, of course, change the construction to be given to the words contained in his letter to Paschal, but it tends to strengthen the conclusion as to the intention of the writer.

Holding the letter to confer sufficient authority to contract for the sale of Lyon's real property in San Antonio, there can be no doubt of the right of the complainants to the relief prayed. The deed executed to them by Paschal in the name of Lyon, though invalid as a conveyance, is good as a contract for the sale of the property described in it; and is sufficient, therefore, to sustain the prayer of the bill for a decree directing Lyon to make a conveyance to them and enjoining the enforcement of the judgment at law.

Decree affirmed.

NOTE.-In Lyon v. Hernandez, which was argued by the same counsel as was the preceding case, MR. JUSTICE FIELD, in delivering the opinion of the court, remarked: This case involves the same question decided in Lyon v. Pollock (supra, p. 668), and on the authority of that decision the decree herein is affirmed.

title: Lyon v. Pollock/Opinion of the Court


text: Talk:Lyon v. Pollock/Opinion of the Court


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Perris v. Hexamer

APPEAL from the Circuit Court of the United States for the Eastern District of Pennsylvania.

The facts are stated in the opinion of the court.

Mr. J. Van Santvoord and Mr. J. J. Coombs, for the appellants, cited Jollie v. Jacques, 1 Blatchf. 618; Green v. Bishop, 1 Cliff. 199; Drury v. Ewing, 1 Bond, 540; Folsom v. Marsh, 2 Story, 100; Emerson v. Davies, 3 id. 768; Gray v. Russell, 1 id. 11; Story's Executors v. Holcombe, 4 McLean, 309; Daly v. Palmer, 6 Blatchf. 256.

Mr. Joshua Pusey for the appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Perris v. Hexamer


text: Talk:Perris v. Hexamer

title: Talk:Perris v. Hexamer


text:
Perris v. Hexamer/Opinion of the Court

The complainants are the owners of a copyright of a series of maps of the city of New York, prepared for the use of those engaged in the business of fire insurance, the title of which is as follows: 'Maps of the city of New York, surveyed under the direction of insurance companies of said city, by William Perris, civil engineer and surveyor, 1852. Volume 1 comprising the 1st, 2d, 3d, and 4th wards. The maps exhibit each lot and building, and the classes as shown by the different coloring and characters set forth in the reference.' The maps were made after a careful survey and examination of the lots and buildings in the enumerated wards of the city, and were so marked with arbitrary coloring and signs, explained by a reference or key, that an insurer could see at a glance what were the general characteristics of the different buildings within the territory delineated, and many other details of construction and occupancy necessary for his information when taking risks. They are useful contrivances for the despatch of business, but of no value whatever except in connection with the identical property they purport to describe.

The defendant made the necessary examination and survey, and published a similar series of maps of Philadelphia. At first he used substantially the same system of coloring and signs, and consequently substantially the same key that had been adopted by the complainants, but afterwards he changed his signs somewhat, and, of course, changed his key.

The question we are to consider is whether the publication of the defendant infringes the copyright of the complainants, and we think it does not. A copyright gives the author or the publisher the exclusive right of multiplying copies of what he has written or printed. If follows that to infringe this right a substantial copy of the whole or of a material part must be produced. It needs no argument to show that the defendant's maps are not copies, either in whole or in part, of those of the complainants. They are arranged substantially on the same plan, but those of the defendant represent Philadelphia, while those of the complainants represent New York. They are not only not copies of each other, but they do not convey the same information.

The complainants have no more an exclusive right to use the form of the characters they employ to express their ideas upon the face of the map, than they have to use the form of type they select to print the key. Scarcely any map is published on which certain arbitrary signs, explained by a key printed at some convenient place for reference, are not used to designate objects of special interest, such as rivers, railroads, boundaries, cities, towns, &c.; and yet we think it has never been supposed that a simple copyright of the map gave the publisher an exclusive right to the use upon other maps of the particular signs and key which he saw fit to adopt for the purposes of his delineations. That, however, is what the complainants seek to accomplish in this case. The defendant has not copied their maps. All he has done at any time has been to use to some extent their system of arbitrary signs and their key.

Decree affirmed.

title: Perris v. Hexamer/Opinion of the Court


text: Talk:Perris v. Hexamer/Opinion of the Court


text:
Orleans v. Platt

ERROR to the Circuit Court of the United States for the Northern District of New York.

The facts are stated in the opinion of the court.

Mr. Levi H. Brown for the plaintiff in error.

Mr. Francis Kernan, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Orleans v. Platt


text: Talk:Orleans v. Platt

title: Talk:Orleans v. Platt


text:
Orleans v. Platt/Opinion of the Court

This suit was brought upon interest coupons belonging to alleged bonds of the town of Orleans, in the State of New York. There are thirteen assignments of error in the record. Ten of them relate to the admission or rejection of evidence. All these ten have been pressed upon our attention; but we think there is nothing in them. We shall, therefore, pass them by without giving to either of them special consideration. The proceedings of the county judge touching the issuing of the bonds, and the bonds themselves, were sought to be excluded. This proceeded upon a misconception of the law of evidence. The plaintiff had a right to exhibit his case. These documents, according to his view, were links in his chain of title to recover. To shut them out would have been to condemn him unheard, and to give judgment against him without trial. The admissibility of testimony under such circumstances, and its effect after it is admitted and all the other evidence is in, are very different questions.

The twelfth assignment is that the defendant asked the court to submit to the jury, as distinct issues to be tried, the propositions whether the two railroad companies which had held the bonds and the plaintiff were bona fide holders, and that the court refused.

Where the testimony is all one way and is conclusive in its effect, a party has no right to ask a charge which assumes that it is otherwise. It would tend to create a doubt where none existed, or ought to exist, and might mislead the jury.

Admitting that there could be doubt as to the companies, a concession by no means necessary to be made, there could be none, as the case appears in the record, with respect to the plaintiff. The inquiry was, therefore, immaterial as to them, and wrong as to him. The court properly declined to accede to the request.

The tenth and eleventh assignments charge error in the refusal of the court to direct the jury to find for the defendant. The former relates to a general request and refusal; the latter, to a request upon twelve specified grounds, with the same result.

The last assignment complains that the court directed the jury to find for the plaintiff.

It is well settled in the jurisprudence of this court, that if the facts are clearly established and are undisputed, it is competent for the court to give such a charge.

In one of the cases brought before us, where it had been done, the practice was commended, and it was remarked that 'it gives the certainty of applied science to the results of judicial investigation.' Merchants' Bank v. The State Bank, 10 Wall. 604. In whose favor the charge should have been given will appear by the result of our examination of the case.

We have already adverted to the good faith of the defendant in error as a purchaser. When he bought, he gave his negotiable notes, payable at different times, for the purchase-money.

The consideration was sufficient. 1 Daniel, Negotiable Securities, 584. Whether the notes were absolute, presumptive, or conditional payment, or only special collaterals to the amount to be paid, are points upon which there is great conflict in the authorities. 1 Parsons, Notes and Bills, 151, c. 7. We need not consider the subject in this case.

The plaintiff was not bound to allow his paper to go to protest, and take the hazards of the litigation which would have followed. The refusal to pay the note first due, upon the ground of the want of consideration, would doubtless have led to the transfer of the other notes, all under-due, and as to them, in that case, there could have been no defence. But irrespective of this, there could have been none upon the merits.

In Otis et al. v. Cullom, Receiver (92 U.S. 447), a city bond issued in Kansas was sold to the plaintiffs in New York. This court, on the ground that the legislature had no power to pass the act under which the bond was issued, adjudged it void. The plaintiffs subsequently sued to recover back what they had paid for it. This court held that in such cases there is only an implied warranty of title and genuineness, and that if there were no guaranty, and no fraud or misrepresentation on the part of the vendor in selling, the plaintiffs could not recover. It was said that such instruments pass from hand to hand like banknotes, and that, if invalid, the law would not inflict the hardship of compelling every one who had passed them to pay back what he had received from his transferee. This case followed Lambert v. Heath (15 Mee. & W. 486), in which the same point was ruled in the same way.

The important question here is, whether the bonds were wholly void,-like a promissory note given for a gaming consideration, and made a nullity by statute,-or whether they were of such a character that a bona fide holder could enforce them like any other commercial security, free from infirmity.

It is not denied that the statutory authority to issue them under the circumstances designated was ample and valid. In this respect our attention has been called to no defect; no question has been raised upon the subject.

Parties claiming to be a majority of the tax-payers, and to own the greater part of the taxable property of the town, petitioned the county judge for an order that the bonds of the town, to the amount of $80,000, should be issued to enable it to subscribe and pay for that amount of the capital stock of the Clayton and Theresa Railroad Company. After hearing the petitioners and their opponents at the appointed time, the judge, on the 1st of July, 1871, ordered the bonds to be issued, and, pursuant to the statute, appointed three commissioners to execute and deliver them. An application was thereupon made by the dissatisfied parties to the Supreme Court for a writ of certiorari. The writ was allowed on the 30th of September, 1871. It was served upon the county judge, and he made the proper return. On the 27th of June, 1872, the Supreme Court, at a general term, affirmed the judgment. In the month of July following, the case was taken to the Court of Appeals, and in February, 1873, that court reversed the previous judgments and ordered the petition to be dismissed.

On the 3d of April, 1872, the commissioners appointed by the county judge subscribed for eight hundred shares of the stock of the railroad company, amounting to $80,000, and on the next day issued and delivered in payment one hundred and sixty of the bonds of the town of $500 each, and thereupon received from the company scrip for the stock, which the town still holds. On the face of each bond was a certificate that it had been duly registered in the clerk's office of the county. The coupons in suit in this case were attached to one hundred and forty of these bonds. On the 26th of February, 1872, and on the 31st of May, 1873, the Clayton and Theresa Railroad Company entered into a contract with the Utica and Black River Railroad Company, and at the date of the second contract delivered all the bonds to Isaac Maynard, as collateral security for the fulfilment of both contracts, and with authority to him to sell the bonds and pay over the proceeds to the latter company. On the 4th of February, 1874, Maynard sold to the plaintiff the bonds here in question, under the circumstances before stated.

The Court of Appeals reversed the judgment of the county judge, solely upon the ground that when the case was before him he had refused to allow tax-payers who had signed the petition to withdraw their signatures, although applications for that purpose were made, and if it had been permitted, the numbers and taxable property represented would have been below the standard required by the statute to authorize the judgment that was rendered. It does not appear that any other objection was made by the contestants. People ex rel. v. Sawyer, 52 N. Y. 296. The previous reported adjudications are said to have been all contrary to this decision; none of them, however, were by the court of last resort. Matter of Tax-payers of Town of Greene, 38 How. Pr. (N. Y.) 515; Mem. of Decisions of Sup. Court, fols. 281, 282. See also People v. Mitchell, 35 N. Y. 555.

The bonds showed no defect upon their face. They purported to be issued by virtue of certain specified acts of the legislature, and set forth that the 'commissioners, under the acts above referred to, for the town of Orleans,. . . upon the faith and credit and on behalf of said town, and confirmed by a majority of the tax-payers, representing a majority of the taxable property of the same, according to said acts, for value received, do hereby promise,' &c.

When the county judge appointed the commissioners to issue the bonds, it was made their duty to proceed 'with all reasonable despatch.' They were not parties to the proceedings upon the certiorari, and hence were not directly affected by them. The same remarks apply to the corporation that received the bonds in payment for its stock. It is expressly provided by statute that in case of disagreement of the commissioners touching the issuing of the bonds the Supreme Court may decide and direct what shall be done, and that 'said court. . . shall have power at any time, by injunction, to prevent the issue of said bonds, or any part thereof, on notice and for good cause shown; and any judge of said court may grant a temporary injunction until such motion can be heard.' Laws of 1871, vol. ii. p. 2119, c. 935, sect. 5. In this case, a preliminary injunction might and should have been procured forbidding the commissioners to issue the bonds, and the railroad company, if it received them, from parting with them, until the case made by the certiorari was finally brought to a close. This would have involved only an ordinary exercise of equity jurisdiction. State of Illinois v. Delafield, 8 Paige (N. Y.), 527; s. c. on appeal, 2 Hill (N. Y.), 160. The omission was gross laches. This negligence is the source of all the difficulties of the plaintiff in error touching the bonds. The loss, if any shall ensue, will be due, not to the law or its administration, but to the supineness of the town and the contestants. County of Ray v. Van Syckle, 96 U.S. 675.

Where one of two innocent persons must suffer a loss, and one of them has contributed to produce it, the law throws the burden upon him, and not upon the other party. Hern v. Nichols, 1 Salk. 289; Merchants' Bank v. State Bank, 10 Wall. 604.

The bonds in question have all the properties of commercial paper, and in the view of the law they belong to that category. Murray v. Lardner, 2 Wall. 110. This court has uniformly held, when the question has been presented, that where a corporation has lawful power to issue such securities, and does so, the bona fide holder has a right to presume the power was properly exercised, and is not bound to look beyond the question of its existence. Where the bonds on their face recite the circumstances which bring them within the power, the corporation is estopped to deny the truth of the recital. Mercer County v. Hacket, 1 id. 83; San Antonio v. Mehaffy, 96 U.S. 312; County of Moultrie v. Savings Bank, 92 id. 631; Moran v. Commissioners of Miami County, 2 Black, 722; Knox v. Aspinwall, 21 How. 539; The Royal British Bank v. Turquand, 6 El. & Bl. 325.

A corporation is liable for the acts of its servants while engaged in the business of their employment, to the same extent that individuals are liable under like circumstances. Philadelphia, Wilmington, & Baltimore Railroad Co. v. Quigley, 21 How. 209; Greene v. London Omnibus Co., 8 C. B. N. S. 290; The Life and Fire Insurance Co. v. Mechanics' Fire Insurance Co. of New York, 7 Wend. (N. Y.) 31.

The doctrine of lis pendens has no application to commercial securities. Murray v. Lylburn, 2 Johns. (N. Y.) Ch. 441; Kieffer v. Ehler, 18 Pa. St. 388; Stone v. Elliott, 11 Ohio St. 252; Mims v. West, 38 Ga. 18; Leitch v. Wells, 48 N. Y. 585; County of Warren v. Marcy, 97 U.S. 96. See, in the case last named, Mr. Justice Bradley's full examination of the subject.

The county judges was the officer charged by law with the duty to decide whether the bonds could be legally issued, and his judgment was conclusive until reversed by a higher court. Lynde v. The County, 16 Wall. 6; Township of Rock Creek v. Strong, 93 U.S. 271. The plaintiff had no notice, actual or constructive, of the proceedings in the case subsequent to the first judgment, and is in nowise affected by them.

The County of Warren v. Marcy (supra) is in effect decisive of the case in hand. There the board of supervisors claimed to be authorized by a popular vote to subscribe for the stock of a railroad company, and to pay in county bonds to be issued by themselves. A tax-payer filed a bill in the county Circuit Court, and procured a preliminary injunction prohibiting the issue of the bonds. Before the final hearing this injunction was dissolved; at the final hearing the bill was dismissed. There had been no injunction in force after the preliminary injunction was disposed of.

The complainant appealed to the Supreme Court of the State. There, in due time, the decree of the lower court was reversed, and the case was remanded with directions to enter a decree in conformity to the prayer of the bill. But between the time of the dissolution of the preliminary injunction and the final hearing in the court below the supervisors subscribed for the stock and issued the bonds.

The same question arose as to the bonds there as here.

This court held that in the hands of a bona fide holder they were free from objection and could be enforced.

Our examination of this case with respect to the bonds here in question constrains us to come to the same conclusion.

There is no difference between the two cases in any material point.

We think the instruction given by the court below to the jury was correct.

Judgment affirmed.

MR. JUSTICE BRADLEY did not sit in this case.

title: Orleans v. Platt/Opinion of the Court


text: Talk:Orleans v. Platt/Opinion of the Court


text:
Lyons v. Munson

ERROR to the Circuit Court of the United States for the Northern District of New York.

This was an action brought by Edgar Munson upon three hundred and eighty-seven coupons or interest warrants originally attached to one hundred and twenty-nine bonds issued by the town of Lyons, Wayne County, New York, for $1,000 each, in payment of its subscription to the Sodus Bay, Corning, and New York Railroad Company, a corporation of that State, being the coupons for interest due respectively Oct. 1, 1872, and April 1 and Oct. 1, 1873, each for the sum of $35, payable to bearer at the Central National Bank of the city of New York.

Each bond bears date May 17, 1872, and recites that it was 'issued under the authority contained in chapter nine hundred and seven of the laws of 1869 of that State, and the amendments thereto, and under and pursuant to a judgment and determination of the county judge of Wayne County, dated May 17, 1872, duly rendered and entered of record under and pursuant to a petition of the tax-payers of said town, praying that said town issue its bonds to the amount of $150,000, and invest the same in the capital stock of that company; and at the foot of each of them is the following certificate, viz.:--

'WAYNE COUNTY, ss.:-Registered in the county clerk's office.

'In witness whereof, the clerk of Wayne County has hereto set his hand and affixed his seal of office.

[L. S.] 'ALFRED F. REDFIELD, Clerk.'

The defence relied on was that the plaintiff was not a bona fide holder of the coupons for value, and that the petition presented to the county judge was rendered illegal and void by containing a condition, in these words: 'Provided that the terminus of said road is made at Nicholas Point, on Sodus Bay, in the town of Huron;' and a qualifying clause, in these words: 'It is understood that the stock so to be taken is to embrace and include the stock now already subscribed and taken by persons residing in the said town of Lyons, amounting to the sum of $16,400;' and that by reason of the insufficiency and illegality of the petition, the county judge had no authority or jurisdiction to render the judgment mentioned in the bonds, and that the same are void.

The jury, under the direction of the court, returned a verdict for the amount of the coupons, with interest. The questions of law were reserved for consideration upon the motion of the plaintiff for judgment on the verdict. After argument, judgment was rendered in his favor.

The defendant thereupon sued out this writ.

Mr. H. L. Comstock for the plaintiff in error.

Mr. W. F. Cogswell, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Lyons v. Munson


text: Talk:Lyons v. Munson

title: Talk:Lyons v. Munson


text:
Lyons v. Munson/Opinion of the Court

All the questions presented for our consideration by this record relate to the validity of bonds issued by the town of Lyons in payment for railroad stock subscribed by its proper authorities.

Propositions covering the entire ground of the controversy between the parties have been so frequently decided by this court that any extended examination of the case is unnecessary. Orleans v. Platt (supra, p. 676), our last adjudication of this class, is conclusive in favor of affirming the judgment of the Circuit Court.

The county judge unquestionably had jurisdiction to decide upon the application made by the tax-payers. His judgment until reversed was final. If there were errors, the proceedings should have been brought before a higher court for review by a writ of certiorari, and if need be, the issuing and circulation of the bonds should have been enjoined, subject to the final result of the litigation. The judgment rendered can no more be callaterally attacked in this case than could any other judgment of a court of competent jurisdiction rendered with the parties, as in this properly before it. The recital in the bonds sets forth the judgment of the county judge, that it was duly rendered, that the bonds were issued pursuant to the statutes referred to, for the object specified in the petition of the tax-payers, and by persons properly appointed and charged by law with the duty of subscribing for the stock and issuing the bonds to pay for it.

The sufficiency of the statutory authority under which the proceedings were had is not denied.

Under such circumstances the recital is an estoppel. A bona fide holder of the bonds was not bound to look further, and the obligor cannot go behind it. Orleans v. Platt, supra; Lynde v. The County, 16 Wall. 6; Mercer County v. Hacket, 1 Wall. 83; Commissioners of Knox County v. Aspinwall, 21 How. 539; Township of Rock Creek v. Strong, 96 U.S. 271.

The learned judge below in his charge to the jury well remarked: 'To imply the intent that such obligations after they are negotiated shall be vulnerable to the objections here urged, would be to impute had faith to the authors of such legislation towards those who are to be induced to invest in such bonds.'

Judgment affirmed.

title: Lyons v. Munson/Opinion of the Court


text: Talk:Lyons v. Munson/Opinion of the Court


text:
Block v. Commissioners

ERROR to the Circuit Court of the United States for the District of Kansas.

This was an action brought, March 17, 1875, by Block, against the board of commissioners of the county of Bourbon, Kansas, upon overdue coupons, amounting in the aggregate to $16,800, detached from bonds issued by that county.

A copy of one of the bonds and coupons is as follows:--

'No. ___.] STATE OF KANSAS. [$1,000. 'Stock Bond of Bourbon County.

'Thirty years after date, the County of Bourbon promise to pay to the Tebo and Neosho Railroad Company, a corporation organized by authority of the laws of the State of Missouri, and by virtue of an act of incorporation passed by the legislature of the State aforesaid, and approved the sixteenth day of January, 1860, or bearer, the sum of one thousand dollars, for value received, with interest at the rate of seven per cent per annum, payable semiannually, at the New York National Exchange Bank, in the city of New York, from and after the first day of January, 1871.

'City of Fort Scott, Kansas, July 1, 1870.

'By order of the board of county commissioners of the county of Bourbon, Kansas, dated March 8, 1867.

[SEAL.] 'D. GARDNER,

'Chairman, Board of County Commissioners, Bourbon County.

'Attest: C. FITCH, Clerk.'

'FORT SCOTT, KANSAS, July 1, 1870.

'Treasurer of Bourbon County will pay bearer thirty-five dollars, at the New York National Exchange Bank, in the city of New York, being semi-annual interest due on the ___ day of _____, 18__, on the bond of the county of Bourbon, No. ___, to the Tebo and Neosho Railroad Company, issued in pursuance of an order of the board of county commissioners of said county, dated March 8, 1867.

D. GARDNER,

'Chairman, Bourbon Board of County Commissioners.

'C. FITCH, County Clerk.'

Under its charter, granted Jan. 16, 18 0, the company had power to construct a road between certain points, and to extend and operate it or its branches beyond the limits of Missouri. It transferred, in October, 1870, by authority of a statute of that State, its franchises, rights, and privileges, 'including subscriptions,' south of a designated point, to the Missouri, Kansas, and Texas Railway Company, a Kansas corporation. The latter company assumed all indebtedness incurred for the construction or otherwise of the line between Sedalia, Mo., and Fort Scott, the county seat of said county, and constructed in due time the road through that county, via Fort Scott, to Texas. The road is now in full operation.

The said board, March 8, 1867, adopted an order, which was duly entered on its minutes, as follows:--

'Be it ordered by the county commissioners of Bourbon County, Kansas, that there be subscribed, in the name and for the benefit of the county of Bourbon, in the State of Kansas, $150,000 to the capital stock of any railroad company now organized or that shall hereafter be organized that shall construct a railroad commencing at a point on the Tebo and Neosho Railroad, running westward via Fort Scott, and that the bonds of said county be issued to said company for the same, said bonds to be payable within thirty years from the date thereof, and bearing interest at the rate of seven (7) per centum per annum: Provided, that said bonds shall not be issued until the question shall have been submitted to a vote of the qualified electors of the county of Bourbon, and shall have received a majority of the votes cast in favor of the same, in pursuance of the provisions of an 'Act to authorize counties and cities to issue bonds to railroad companies,' approved Feb. 10, 1865; and that said question shall be submitted to said electors at a special election on the seventh day of May, A.D. 1867.

'At said election the votes shall be cast 'For railroad bonds' and 'Against railroad bonds;' and if it shall appear, upon a canvass of said votes by the proper officers, according to law, that a majority of the votes cast are in favor of the said subscription, then the above order shall be carried into practical operation by the issuing of said bonds to said company whenever the county commissioners of Bourbon County are satisfied that the road-bed of the Tebo and Neosho Railroad is completed to such a point that the amount of said bonds shall be sufficient and adequate to construct the road-bed and connect the said point with the city of Fort Scott.'

Said order was duly published, and the election held pursuant thereto. On canvassing the returns, the board declared, May 10, 1867, that there was a majority of twenty-six votes 'for railroad bonds,' and that there was no evidence that an election had been held in the township of Franklin.

The poll-book from that township did not arrive at the clerk's office until after the commissioners had adjourned.

The board, July 23, 1869, made a further order, providing for a special election on the twenty-fourth day of the following August. The election was duly held accordingly, and on canvassing the votes, the board declared that a majority of them had been cast in favor of the proposed subscription.

The board thereupon appointed an agent to subscribe, in the name and for the benefit of the county, $150,000 to the capital stock of said Tebo and Neosho Railroad Company, upon the express condition, 'which was made a part of said subscription,' that the county bonds should not be delivered to the company, nor the county become liable to pay any portion of its subscription, until the road-bed of the company should be completed to such a point that the amount of bonds should be sufficient to complete the road from Sedalia, Mo., to Fort Scott. There was a further condition that the subscription should be void unless the road-bed was completed to Fort Scott, Jan. 1, 1872.

The board, July 2, 1870, ordered that the bonds bearing date July 1, 1870, of the tenor and effect of the foregoing copy, be ssued, and deposited with a certain person as trustee of the county, for delivery to the company when the conditions upon which they had been voted should be complied with.

The board, Jan. 2, 1871, upon a report made to it, approved the delivery, on the fifth day of November, 1870, of the bonds to the company, the coupons covering interest from July 1 to Sept. 1, 1870, having been detached therefrom.

The board, June 27, 1872, ordered that the poll-book of Franklin Township of the election held May 7, 1867, which had remained sealed since it had been delivered by the messenger of the township, should be opened. The board declared, after inspecting said book, that if the vote then cast by that township had been computed in canvassing the county vote, the proposition to vote the bonds would have been rejected.

The board thereupon ordered the treasurer of the county to withhold the payment falling due on said bonds July 1, 1872, and to notify the New York National Exchange Bank of the City of New York, as the fiscal agent of the county, that no more interest would be paid on them, and that the principal would not be paid at maturity.

The county levied and collected taxes for 1870, 1871, and 1872, to pay interest on the bonds in suit, and paid the first three instalments of interest thereon.

Certain coupons, on which this suit was brought, numbered four, originally attached to said bonds, from one to one hundred, had been in controversy in a mandamus proceeding in the Supreme Court of Kansas, instituted by one Lewis, then and still the real and beneficial owner of them. They were in possession of Block for collection.

The remaining facts are stated in the opinion of this court. The Circuit Court gave judgment in favor of the county on the coupons in suit which were attached to the bonds numbered from one to one hundred, inclusive, and against it for the remaining coupons, being on bonds owned by Block, numbered one hundred and thirty-one to one hundred and fifty.

Each party sued out a writ of error.

Mr. John D. Stevenson for Block.

Mr. J. E. McKeighan, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Block v. Commissioners


text: Talk:Block v. Commissioners

title: Talk:Block v. Commissioners


text:
Block v. Commissioners/Opinion of the Court

These are writs of error complaining of one judgment. The plaintiff, Blcok, brought suit against the board of commissioners of the county of Bourbon, Kansas, to recover the amount of $16,800 alleged to be due him upon past-due interest coupons detached from bonds made and issued by that county. From the findings of fact made by the court below it appears that the plaintiff is the bona fide owner of twenty of the bonds from which part of the coupons in suit were taken, and that he purchased them in open market without actual notice of any defence the county now sets up against them. The remaining coupons are the property of one William J. Lewis, delivered by him to the plaintiff to be collected, not for the benefit of Block, but for that of Lewis, the true owner. Whether, in view of such a finding, a recovery for them can be had in this suit, if there were no other objection to it, we do not now determine. There is another and graver question to be considered. The Lewis coupons had been in litigation before this suit was commenced. In January, 1873, he applied to the Supreme Court of the State for a a mandamus, suggesting that he was the owner of bonds of the county, one hundred in number, and numbered from one to one hundred, and of the coupons attached to the same; that he was the holder, bearer, and owner of the one hundred coupons due and payable July 1, 1872, part of the coupons now in suit; that a tax had been levied and collected amply sufficient to pay those coupons, but that the county had refused to pay them. The suggestion further represented that the proper officers of the county had neglected and refused to take the necessary steps to make provision for the payment of the coupons falling due in 1873, in January and July, and by an alternative writ the board of commissioners of the county were commanded to pay the coupons due in 1872, and to provide for levying a tax sufficient to pay the coupons as they should fall due in 1873.

To this alternative writ the commissioners answered, in substance, denying the validity and obligation of the bonds. Much of the answer was formal and quite immaterial, but there was also much of substance. It was denied that there had been any proper submission to the electors of the county of the question whether the county should subscribe to the stock, or issue bonds to the railroad company to which the bonds were issued, to wit, the Tebo and Neosho Railroad Company. The answer further averred that, though there was a submission of the question to the electors whether the county would vote $150,000 to any railroad running east to connect with the aforesaid road, a majority of the votes cast at the election ordered was cast against the proposition. It further avers that though the commissioners canvassed the vote and decided from the returns before it that a majority had voted in favor of the proposition, the returns from one township were not brought in until after the canvass had been completed, and until after the board had adjourned, and that if the return from that township had been made in season and had been counted, a majority would have appeared against the proposition submitted. This belated return remained unopened until years afterwards, until after the bonds had been issued and after a new submission to the electors had resulted in the vote of a decided majority in favor of the bonds. This new submission, it was averred, was made in 1869, and it was not until after the vote had been taken that a subscription was made to the stock of the Tebo and Neosho Railroad Company, and the bonds of the county were issued in payment. At the time when the subscription was ordered to be made and the bonds were directed to be executed and delivered to the railroad company, it was also ordered that the stock of the county in the railroad company should be sold to the Land-Grant and Trust Company of New York, for the sum of five dollars.

Upon the issue thus tendered and made up the case was tried by the Supreme Court of the State, and a judgment was given for the defendant. What the effect of this judgment was has a most important bearing upon the inquiry whether there can be any recovery in the present suit for the coupons belonging to Lewis, the relator in the application for the mandamus.

To obtain a clear appreciation of that, it is necessary to observe closely what was in issue in the proceeding in the State court, and consequently what was adjudicated. It was not denied that Lewis was the owner of the one hundred bonds to which the coupons now in suit for his use were attached. It was not denied that the coupons were due and unpaid, as averred in the suggestion and alternative writ. Nor was it denied that the officers of the county had power, and that it was their duty to levy a tax to pay them and to make payment, if they were a lawful debt of the county. In legal effect all this was admitted. The only issue tendered and the only issue tried was that tendered by the answer; namely, that the bonds and coupons were unauthorized by law, because a majority of the voters of the county, voting at the election in 1867, had not sanctioned a subscription to the stock of the railroad company, and approved the proposition submitted for the issue of the bonds. If they had not, the bonds were unauthorized, and the coupons, of course, constituted no debt of the county. Then the relator was not entitled to his mandamus. If, on the other hand, the bonds and coupons were lawfully issued, either in pursuance of the vote of 1867 or that of 1869, they did constitute a debt of the county, and a mandamus to enforce their payment necessarily followed. The court gave judgment for the defendant, as we have seen, and thus decided that the bonds and coupons held and owned by Lewis were invalid. Such was the necessary effect of the judgment. The issue trie was a material one, and the judgment could not have been rendered without deciding it. Now that a judgment in a suit between two parties is conclusive in any other suit between them, or their privies, of every matter that was decided therein, and that was essential to the decision made, is a doctrine too familiar to need citation of authorities in its support. A few cases go farther, and rule that it is conclusive of matters incidentally cognizable, if they were in fact decided. To this we do not assent. But it is certain that a judgment of a court of competent jurisdiction is everywhere conclusive evidence of every fact upon which it must necessarily have been founded. As between Lewis, therefore, and Bourbon County the judgment of the State Supreme Court finally established that the coupons which he held, and which he subsequently placed in the hands of Block, the plaintiff in the present suit, were invalid, and constituted no part of the debt of the county. As that judgment was pleaded in the present case, it was a conclusive answer to the suit so far as it was founded upon those coupons. The plaintiff's writ of error, consequently, cannot be sustained.

The coupons held and owned by Block are in a different position. As between him and the county there is no estoppel. He was not party to the suit in which the Lewis coupons were adjudged invalid, and he is unaffected by the judgment therein. Of the coupons which he holds he is a bona fide holder, having purchased them for a valuable consideration, without actual notice of any defence which could be set up against them. When he bought he was under no obligation to look farther than to see that there was legislative authority for the issue of the bonds, and that the condition upon which it was allowed to be exercised had been fulfilled. If there was such authority, and the precedent conditions had been performed, the bonds and coupons are valid obligations of the county, which he, as their owner, may enforce.

The bonds are dated July 1, 1870, and on their face they purport to have been issued by order of the board of county commissioners of the county of Bourbon, Kansas, dated March 8, 1867, and they are made payable to the Tebo and Neosho Railroad Company or bearer.

The authority under which it is claimed they were issued was an act of the legislature of the State of Feb. 10, 1865, amended by an act passed Feb. 26, 1866. By that it was enacted 'that the board of county commissioners of any county to, into, from, or near which, whether in this State or any other State, any railroad is or may be located, may subscribe to the capital stock of any such railroad corporation in the name and for the benefit of such county, not exceeding in amount the sum of $300,000 in any one corporation, and may issue the bonds of such county, in such amounts as they may deem best, in payment of said stock,. . . but no such bonds shall be issued until the question shall first be submitted to a vote of the qualified electors of the county at some general election, or at some special election to be called by the board of county commissioners,. . . and in submitting such question said board of directors shall direct in what manner the ballots shall be cast. If a majority of the votes cast at such election shall be in favor of issuing such bonds, the board of commissioners of the county shall issue the same.' In this act several things are to be noticed. The bonds were allowed to be issued in payment for subscriptions to stock of any railroad company, whether its road was then located, or might be thereafter, whether it was in the State or out of it, in the county or out of it, provided the question of subscription to the stock and issuing the bonds was first submitted to a vote of the qualified electors, and a majority was found in favor of issuing the bonds. Another thing is manifest. It was the legislative intention that the board of commissioners should be the body which should submit the question of subscription and issue of he bonds to popular decision, and they were also deputed to determine the result of the election,-we mean the board as it was constituted at the time when an election might be held.

Authorized by this statute, the board of county commissioners, on the 8th of March, 1867, submitted to the electors of the county the question whether there should be subscribed for the county $150,000 to the stock of any railroad company then organized, or that might thereafter be organized, that should construct a railroad commencing at a point on the Tebo and Neosho Railroad running westward, via Fort Scott (in Bourbon County), and should issue bonds to the company for the same. Pursuant to this submission an election was held, the returns of which were canvassed at the proper time by the board, and the result declared to be that a majority of the votes had been cast in favor of the subscription and the issue of the bonds. This was on the 10th of May, 1867. The declaration of the result was duly entered upon the minutes of the board. Subsequently an additional return was made from one township which was not before the board when the canvass was made. Had it been, the result would have been different. But this return was not opened until June 27, 1872, long after the bonds had been issued. Upon the records of the board nothing appeared to impeach the canvass made in 1867, though in the files of the office the belated poll-book remained unopened. It is hardly necessary to say that the board, as it was in 1872, had no authority to make a new canvass of the election held in 1867, after the bonds had been issued and purchasers had bought on the faith of the canvass first made. The bonds, it is true, contain no recitals. If they did contain a recital that an election had been held, and that a majority had voted for the issue of the bonds, the recital would have been conclusive upon the county, and a purchaser would have needed to look no farther than to the act of the legislature. This is according to all our decision. But in the absence of any recital it may be conceded he was bound to inquire whether a majority vote had been returned for the issue of the bonds. But where was he to inquire? Plainly only of the board whose province it was to ascertain and declare the result of the election. Had he gone to their records, they would have shown that the popular vote was in favor of the bond issue. They showed nothing else until 1872. He was not bound to canvass the vote for himself, or to revise and correct a mistaken canvass, any more than he was bound to inquire into the qualification of the electors. And if, relying upon the canvass of the board and the declared result, he accepted the obligations of the county, it would be a strange doctrine were we to hold that a second canvass, made many years afterwards, could reverse the first and annul rights that had been acquired under it. There is no such law. For all legal purposes the result of an election is what it is declared to be by the authorized board of canvassers empowered to make the canvass at the time when the returns should be made, until their decision has been reversed by a superior power, and a reversal has no effect upon acts lawfully done prior to it. The county of Bourbon is therefore estopped, in a suit by a bondholder whose bonds were issued in 1870, from asserting that the canvass of 1867 was incorrect, and that in fact no majority of the qualified electors had voted in favor of the issue of the bonds. All that took place afterwards, all the new evidence that was discovered, the new election ordered and held in 1869, and the action of the board after the bonds were issued, are immaterial. It follows that much of the argument of the learned counsel for the county who has argued against the validity of the bonds and coupons is unsound. It assumes, what cannot be admitted, that a majority of the votes cast at the election in 1867 was against the issue of the bonds, when it was conclusively established by the decision of the tribunal appointed by law to determine the result of the election, that the contrary was the fact.

We pass now to the consideration of some of the objections made to the order of the county board of March 8, 1867, submitting to the qualified electors the question whether there should be a subscription made to the stock of any railroad organized, or that might thereafter be organized, that should build a railroad commencing at a point on the Tebo and Neosho Railroad and running westward to Fort Scott, and whether county bonds should be issued to said company therefor. It is said this did not authorize a subscription to the stock of the Tebo and Neosho Railroad Company, or the issue of bonds to it. The objection, in view of the facts that appear in the record, is of no weight. When the order was made, that company had been incorporated by the legislature of Missouri, and had projected its road along and near the northern boundary of that State through a county adjoining Bourbon. The order of the county board contemplated a connection of Fort Scott with that road, and the issue of bonds to any company that would make that connection. A part of the connecting road was necessarily in Missouri and a part in Kansas. The Missouri corporation could only build, by its own direct action, to the State line, and a Kansas corporation could only build the part in Kansas; but the Tebo and Neosho Company could and did cause the entire line to be constructed. It had power by its charter to extend, construct, maintain, and operate its railroad and branches beyond the limits of the State, so far as Missouri could give it that power. In 1869, that company, under legislative authority, sold all its privileges, rights, powers, and franchises to the Missouri, Kansas, and Texas Railway Company, organized under the laws of Kansas, stipulating that the vendee should assume all indebtedness incurred for the construction, or otherwise, of the line between Sedalia, Mo., and Fort Scott (in Bourbon County, Kansas). Accordingly the road begun by the Tebo and Neosho Company was constructed and extended to and beyond Fort Scott, and is now in operation. There can be no doubt that this was a compliance by the Tebo and Neosho Company with the conditions prescribed by the order of the county board. It built the road through the agency of the Kansas corporation, and it therefore answered the description made in the order of submission. The county commissioners subscribed to its stock and issued the bonds to it, or bearer, and their action was warranted, as we have said, by the terms of the submission and its approval. It was not a case of authority given to issue bonds to one railroad company, and their issue to another.

We have said enough in refutation of the argument that because the Tebo and Neosho Railroad Company was a Missouri corporation, and could not, therefore, extend its road into Kansas, it was excluded from the roads contemplated in the order and election. If it was, then every railroad company was excluded, for even a Kansas company could not build a road into Missouri. Yet the order and election meant something. No company was named in the order. None could be. But a description was given that pointed unmistakably to the company that caused the work to be done. In Commissioners of Johnson County v. Thayer (94 U.S. 631), this court held that under the Kansas statute of 1865 it is not necessary to name any particular company in the submission to the popular vote. A description of a railroad company may well be made without mentioning its corporate name.

This is all that, in our judgment, these cases require. We have not deemed it necessary to invoke in aid of our conclusions the provisions of the curative act of 1868, for we think it is not open to question that a majority of the qualified electors of the county approved the subscription that was made and the issue of the bonds. That was finally determined by the board, whose duty it was to canvass the result of the election and declare the result. Their decision has never been eversed by any competent authority, and it cannot be impeached collaterally. Nor do we place any reliance upon the second order made in 1869, and the election held thereunder, resulting in a large majority in favor of the subscription and issue of the bonds. The bonds stand on the order and vote of 1867, as determined by the canvassing board at that time.

Nor can we yield assent to the claim that the acts of 1865 and 1866 were repealed by the General Statutes of 1868. Certainly there was no express repeal, and we can discover no necessary implication of a repeal. And it may be added, that the Supreme Court of the State seems to regard those acts as still in force. Lewis v. The Commissioners (12 Kan. 186) gives no intimation to the contrary, though the court had before it the questions we are now considering. In Morris v. Morris County (7 id. 576), decided in 1871, the court said: 'The acts of 1865-66 have never been expressly repealed; and if they have ever been impliedly repealed, all rights, power, and authority that had accrued under them prior to their repeal had at least been impliedly reserved.' And again: 'Whatever was done under the acts of 1865 and 1866, prior to the passage of the acts of 1868, continued in force the same as though the acts of 1868 had never been passed.'

We have not overlooked the opinion delivered by the Supreme Court of the State in Lewis v. The Commissioners, supra. The judgment in the case was not given until after the bonds were issued, and after the rights of the holders thereof had become fixed. We are, therefore, at liberty to follow our own convictions of the law. To those expressed by the State court we cannot assent. They are not in harmony with many rulings of this court made and repeated through a long series of years, and they are not such as in our opinion would administer substantial justice if applied to this case.

Judgment affirmed.

MR. JUSTICE CLIFFORD dissented from the opinion of the court in the first, and concurred in it in the second case.


text: Talk:Block v. Commissioners/Opinion of the Court