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of a tax upon all the taxable property of the town for that purpose.
The amendatory act authorized not only townships, but also villages, cities, and counties along the route of the railroad to make donations to the company. It prescribed an entirely different condition precedent to the making of a donation, and required the issue of bonds to pay the donation when made, and it did not require the completion of the railroad, or any part of it, before the bonds were issued. It did not limit the amount which might be donated to $30,000, but declared that if a majority of the votes cast at the election provided for by the act should be in favor of donation, the corporate authori
of the village, city, county, or township, as the case might be, should donate to the company the amount so voted at said election, and issue bonds in payment thereof. It thus appears that sect. 10 of the amendatory act covered the entire subject embraced by sects. 9 and 10 of the original act. It related to the same railroad company; it prescribed different methods of procedure in reference to the same subject, and embraced entirely new provisions, thus plainly showing that it was intended as a substitute, pro tanto, for the original act. Sect. 10 of the amendatory act therefore operated as a repeal, by implication of sects. 9 and 10 of the original act, and removed the restriction limiting to $30,000 the amount which could be donated by a township to the railroad company. United States v. Tynen, 11 Wall. 88; Henderson's Tobacco, id. 652; Murdock v. City of Memphis, 20 id. 590; King v. Cornell, 106 U. S. 395.
The next question raised by the assignments of error relates to the power of the township of Pana, under the circumstances of this case, to issue the bonds in question. This court decided, in Harter v. Kernochan, 103 id. 562, that bonds issued by the township of Harter, dated April 1, 1880, signed by the supervisor and countersigned by the clerk of the township, reciting that they were issued in pursuance of the acts of Feb. 25, 1867, and Feb. 24, 1869, which are the acts relied on in this case, and in pursuance of an election of the legal voters of the township held Nov. 10, 1868, were valid obligations of the township
The power of the township of Pana, under the same acts, to issue bonds to pay its donation to the same railroad company is, therefore, settled beyond dispute, unless what the plaintiff in error insists was a defect in the method of conducting the election by which the donation was voted is fatal to the authority of the officers of the township to issue the bonds. This defect was that the election was presided over and the returns made, not by the supervisor, assessor, and collector of the township, ex officio judges of elections, but by a moderator chosen by the electors present.
It is insisted by the plaintiff in error that as the Constitution of Illinois, adopted July 2, 1870, by its second additional section cut off the power of any township or other municipality to subscribe to the capital stock of, or make a donation to, any railroad company, except when such subscription or donation had been authorized under existing laws, by a vote of the people of the municipality prior to the adoption of the Constitution, and as, by reason of the defect just mentioned, there was no legal election, it follows that there was no authority in the officers of the township of Pana to make the donation or issue the bonds in question in this case, and that the bonds are not binding on the township. We cannot assent to this conclusion.
It is clear that this case in no wise differs from other cases where the holding of an election and a vote of the people in favor of an issue of bonds is made by law a condition precedent upon which the authority to issue bonds rests.
The bonds in question in this case recite on their face that they were issued by the township, in compliance with the vote of the legal voters thereof at an election held on April 30, 1870, under and hy virtue of the authority conferred by acts of the General Assembly of the State of Illinois, specifying the acts of Feb. 26, 1867, and Feb. 24, 1869, above mentioned.
This court has again and again decided that if a municipal body has lawful power to issue bonds or other negotiable securities, dependent only upon the adoption of certain preliminary proceedings, such as a popular election of the constituent body, the holder in good faith has the right to assume that such preliminary proceedings have taken place if the fact be certified
on the face of the bonds by the authorities whose primary duty it is to ascertain it. Lynde v. The County, 16 Wall. 6; Town of Coloma v. Eaves, 92 U. S. 484; Commissioners v. January, 94 id. 202; Commissioners v. Bolles, id. 104; County of Warren V. Marcy, 97 id. 96.
The authority to issue the bonds in question in this case, resting upon the fact that an election was held in pursuance of law before a certain date, namely, the date when the Constitution of 1870 was adopted, and the bonds reciting on their face the fact that the election was so held before the date mentioned, the circumstance that the election was irregularly conducted can be of no avail as a defence to the bonds in a suit brought by a bona fide holder.
Our attention has been called to the decision of the Supreme Court of Illinois in the case heretofore mentioned and reported as Lippincott v. Town of Pana, 92 Ill. 24, in which it was held that the election relied on in this case as the authority for the issue of the bonds was absolutely void, and the issue of them was, therefore, without authority. Our attention is also called to People v. Town of Santa Anna, 67 id. 57, and People v. Town of Laenna, id. 65, where similar elections under a like statute were held void. These last two cases were decided before the bonds in this case were issued. They were, however, suits brought to restrain the issue of bonds by the township officers, on account of the irregularities in the election. The rights of bona fide holders could not, therefore, arise, and were not passed on in those cases. But in the case first mentioned the bonds had been issued, and were presumptively in the hands of bona fide holders. Nevertheless, the Supreme Court of Illinois held the bonds to be void in whosesoever hands they inight be.
It is insisted that this court is bound to follow this decision of the Supreme Court of Illinois and hold the bonds in question void. We do not so understand our duty. Where the construction of a State constitution or law has become settled by the decision of the State courts, the courts of the United States will, as a general rule, accept it as evidence of what the local law is. Thus, we may be required to yield against our own judgment to the proposition that, under the charter of the
railway company, the election in this case, which was held under the supervision of a moderator chosen by the electors present, was irregular and therefore void. But we are not bound to accept the inference drawn by the Supreme Court of Illinois, that in consequence of such irregularity in the election the bonds issued in pursuance of it by the officers of the township, which recite on their face that the election was held in accordance with the statute, are void in the hands of bona fide holders. This latter proposition is one which falls among the general principles and doctrines of commercial jurisprudence, upon
which it is our duty to form an independent judgment, and in respect of which we are under no obligation to follow implicitly the conclusions of any other court, however learned or able it may be. Swift v. Tyson, 16 Pet. 1; Russell v. Southard, 12 How. 139; Watson v. Tarpley, 18 id. 517; Butz v. City of Muscatine, 8 Wall. 575; Boyce v. Tabb, 18 id. 546 ; Oates v. National Bank, 100 U. S. 239; Railroad Company v. National Bank, 102 id. 14. See also Burge88 v. Seligman, ante, p. 20, where the question, how far the courts of the United States are bound by the decisions of the State courts, is carefully re-examined, and the rule on the subject stated with precision.
We cannot follow the decision of the Supreme Court of Illinois in Lippincott v. Town of Pana, ubi supra, without overruling a uniform current of the decisions of this court, beginning with Commissioners of Knox County v. Aspinwall, 21 How. 539, and continuing down to the present time. The rights of the bona fide holder of negotiable municipal bonds, as we have stated them in this opinion, are too firmly settled by the decisions of this court to be shaken.
Our conclusion is, therefore, that the bonds in question in this case are valid in the hands of a bona fide holder, notwithstanding the irregularity in the conduct of the election by which they were claimed to be authorized.
The next question presented by the assignments of error is, Does the irregularity in the conduct of the election throw on the plaintiffs the burden of proving that they are holders for value?
It is a general rule that when the holder of a negotiable in
strument, regular on its face and payable to bearer, produces it in a suit to recover its contents, and the same has been re ceived in evidence, there is a prima facie presumption that he became the holder of it, for value at its date, in the usual course of business. Murray v. Lardner, 2 Wall. 110; Bank of Pittsburgh v. Neal, 22 How. 96; Collins v. Gilbert, 94 U. S. 753; Brown v. Spofford, 95 id. 474. And municipal bonds, payable to bearer, are subject to the same rules as other negotiable paper.
Cromwell v. Sac County, 96 id. 51. But the plaintiff in error insists that this case falls within an exception to that rule, and cites to sustain his position Smith v. Sac County, 11 Wall. 139, and Stewart v. Lansing, 104 U.S. 505. The exception relied on by the plaintiff in error is well settled, and is this : if, in a suit brought by the indorsee or transferee of a negotiable instrument, the maker or acceptor, or any party who is primarily bound by the original consideration, proves that there was fraud or illegality in the inception of the instrument, the burden of proof is thrown on the plaintiff to show that he is a holder for value. Smith v. Sac County and Stewart v. Lansing, ubi supra; Commissioners v. Clark, 94 U. S. 278; Collins v. Gilbert, id. 753; Fitch v. Jones, 5 El. & Bl. 238; Smith v. Braine, 16 Ad. & E. N. S. 244; Hall v. Featherstone, 3 Hurls. & Nor. 284; Bailey v. Bidwell, 13 Mee. & W. 73; Vathir v. Zane, 6 Gratt. (Va.) 246; Hutchinson v. Boggs, 28 Pa. St. 294; Perrin v. Noyes, 39 Me. 384; Cottle v. Cleaves, 70 id. 256; Sisterman: v. Field, 9 Gray (Mass.), 331; Woodhull v. Holmes, 10 Johns. (N. Y.) 231; Ro88 v. Drinkard's Adm., 35 Ala. 431; Harbison v. Bank of the State of Indiana, 28 Ind. 133; Fuller v. Hutchings, 10 Cal. 523 ; Redington v. Woods, 45 id. 406; Conley v. Winsor, 41 Mich. 253 ; Sloan v. Union Banking Company, 67 Pa. St. 470; Holme v. Karsper, 5 Binn. (Pa.) 469; Vallett v. Parker, 6 Wend. (N. Y.) 615; Munroe v. Cooper, 5 Pick. (Mass.) 412; 1 Daniel on Neg. Ins. (3d ed.), sect. 815.
In most of the cases above cited the defence relied on was fraud in the inception of the instrument. Thus, in Smith v. Sac County, 11 Wall. 139, the report shows that the bonds were issued to a contractor to pay for the building of a courthouse; that the county judge who executed and delivered