municipal benefits should not be taxed to aid | deem necessary" in the District of Columbia, those within; third, that a law authorizing the had the right to occupy a public street for the assessment of taxes for municipal purposes purposes of a freight yard. It was argued upon lands or their occupants located beyond that the validity of an authority, exercised unthe range of municipal benefits is not a right- der the United States, to so occupy the public ful subject of legislation; fourth, that taxation streets, was drawn in question; but this court for city purposes should be within the bounds held otherwise, and said: "The validity of indicated by its buildings, or its streets and the statutes and the validity of authority exeralleys, or other public improvements, and concised under them, are, in this instance, one tiguous or adjacent districts so situated as to authorize a reasonable expectation that they will be benefited by the improvements of the city or protected by its police; that no outside districts should be included when it is apparent and palpable that the benefits of the city to it will only be such as will be received by other districts not included, such as will be common to all neighboring communities." In the case at bar (7 Utah, 166) the supreme court declared that it had no reason to doubt the correctness of the former decision, and af 508]firmed the judgment of the district court. And, in accordance with the view that such taxation was not within the power granted, it was ruled that "a municipal corporation, which is a small village, but having extensive limits, cannot tax farming lands for municipal purposes. lying within the corporate limits but outside of the platted portion of the city, and so far removed from the settled portion of the city that the owner will receive no benefits from the municipal government." " It is thus seen that the decision of the supreme court of the territory involved the construction of the organic law and the scope of the authority to legislate conferred upon the territorial legislature; but that the validity of that authority and of the statute was not drawn in question. In order to give us jurisdiction of this appeal, the matter in dispute exclusive of costs must have exceeded the sum of $5000, or else, without regard to the sum or value in dispute, the validity of a patent or copyright must have been involved, or the validity of a treaty or statute of or an authority exercised under the United States have been drawn in question. 23 Stat. at L. 443, chap. 355. Confessedly, the matter in dispute here did not reach the requisite pecuniary value, and the validity of no patent or copyright was involved, nor was the validity of a treaty questioned; and, as just stated, we are of opinion that the validity of no statute of the United States, nor of an authority exercised under the United States, was drawn in question within the intent and meaning of the jurisdictional act. As was observed in United States v. Lynch, 137 U. S. 280, 285 [34: 700, 702]: "The validity of a statute is not drawn in question every time rights claimed under such statute are controverted, nor is the validity of an authority, every time an act done by such authority is disputed. The validity of a statute or the validity of an authority is drawn in question when the existence, or constitutionality, or legality of such statute or authority is denied, and the denial forms the subject of direct inquiry." In Baltimore & P. R. Co. v. Hopkins, 130 U. S. 210, 226 [32: 908, 914] the question in controversy was whether a railroad corporation, au509] thorized by acts of Congress to establish freight stations, and to lay as many tracks as "its president and board of directors might 155 U. S. U. S., Book 39. 16 and the same thing; and the 'validity of a stat ute,' as these words are used in this Act of Congress, refers to the power of Congress to pass the particular statute at all, and not to mere judicial construction as contradistinguished from a denial of the legislative power." And see United States v. Seymour, 153 U. S. 353 [38: 742], where the cases are marshalled and applied. The result is that the motion to dismiss must be sustained. Appeal dismissed. Mr. Justice Harlan dissenting: I am of the opinion that this court has ju risdiction to review the judgment below, and, consequently, that the writ of error should not be dismissed. We have jurisdiction to review the judgment or decree of the supreme court of a territory, without regard to the sum or value in dispute in any case in which is "drawn in question the validity of an authority exercised under the United States." 23 Stat. at L. 443, chap. 355. . The city of Kaysville, Utah, was incorporated and its territorial limits were defined by an act of the territorial legislature passed February 13, 1868. Utah Laws of 1868, p. 8; 1 Utah Comp. Laws of 1888, p. 427. That act provided that the city council "shall have authority to levy and collect taxes, for city purposes, upon all taxable property, real and personal, within the limits of the city." § 7. Within those limits were the plaintiff's lands, part of a large body of what are alleged to be merely "agricultural lands," outside of the platted part of the city, and upon which, it was contended, taxes for city purposes could not be legally imposed. *Certain taxes were levied on the plain [510 tiff's lands by the municipal corporation of Kaysville. The issue in the court of original jurisdiction was as to the liability of those lands for taxes assessed by that corporation under the authority given by the territorial statute. That court found, as conclusions of law, that "the organization of the city of Kaysville, including large quantities of agricultural lands which, at the time of its organization, could not be benefited by municipal government, was, at the time thereof, illegal and void, and that it now is illegal and void, as to the lands which cannot by any possibility be benefited by municipal government;" that "to impose tax upon such lands is contrary to that part of the Constitution which provides that private property shall not be taken for public purposes without just compensation;" and that the lands of the plaintiff "being agricultural lands, to tax him would be to take his property without just compensation." The district court, therefore, held that the city of Kaysville "had no authority to tax the lands and property of Mr. Ellison for municipal purposes." It thus appears that the va 241 lidity of the authority given by the territorial | thority it has "under the United States," legislature, acting under the United States, to passed a statute which embraced certain agritax agricultural lands like those belonging to cultural lands within the limits of Kaysville, the plaintiff, was directly drawn in question and assumed to authorize that municipal corand was passed upon by the court of original poration to tax them for city purposes. The jurisdiction. action of the corporation and its officers is In the supreme court of the territory the based upon the territorial statute and is justijudgment was affirmed. It is true that the fied, if to be justified at all, only by its provisfindings of fact in that court differed in some ions. Plainly, therefore, there was "drawn in respects not vital in the present inquiry from question" the authority of the territorial[512 those made in the inferior territorial court, but legislature, acting "under the United States," they disclosed the real issue between the par- to confer upon a particular municipal corpoties, and the judgment of the supreme court ration the power to tax the lands in question proceeded distinctly upon the ground that a for purely city purposes. No question was tax upon agricultural lands for city purposes presented as to the mere construction of the was invalid and void. This appears from the statute. It is not disputed that the plaintiff's following extract from the opinion of that lands are within the limits of Kaysville, as decourt: "The questions involved in this case fined by the act of the territorial legislature. were fully considered and elaborated by this It is conceded that the seizure of the plaintiff's court in the case of People v. Daniels, 6 Utah, wagon for the taxes on his lands was legal, if 288. The case involved the validity of a tax the statute of the territory was constitutional on agricultural lands for city purposes, and so far as it authorized taxes to be imposed on the tax was declared void. In that case Zane, such lands within the defined limits of KaysCh. J.,in delivering the opinion of the court, said ville, as were agricultural lands, namely, lands 511] that **taxation for city purposes should outside of the platted part of the city, which be within the bounds indicated by its buildings did not receive the benefits of the city governor street or alleys or other public improve- ment. I submit that there is no disputed quesments, and contiguous or adjacent districts so tion in the case, except that which involves situated as to authorize a reasonable expecta- the constitutional power of the territorial legtion that they will be benefited by the im- islature, acting under the United States, to provements of the city or protected by its authorize the imposition of taxes for city purpolice; that no outside districts should be in- poses on lands situated as are those of the cluded when it is apparent and palpable that plaintiff. The facts were agreed and it is ap. the benefits of the city to it will be only such parent that the parties intended to raise no as will be received by other districts not in- question except as to the validity of the aucluded-such as will be common to all neigh-thority exercised by the territorial legislature boring communities.' We see no reason to in empowering the city of Kaysville to tax the doubt the correctness of that decision, and as lands here in question. it is decisive of the point involved in this case the judgment of the district court is affirmed." That the supreme court of the territory passed upon the validity of the territorial statute so far as it authorizes the taxation of agricultural lands for city purposes is made still clearer by an examination of the opinion in People v. Daniels, the decision in which was followed in the present case. In that case it was adjudged that the taxation of agricultural lands for city purposes was forbidden by the 5th Amendment of the Constitution which prohibited the taking of private property for public use without just compensation. The court said: "Inasmuch as it appears from the record in the case that the defendant resides and that his lands are situated outside of Moroni City, as indicated by public or private improvements, and beyond such contiguous or adjacent district as will be benefited by its municipal expenditure, the court holds that the territorial legislature has no power to subject his property to the burden of taxation for the corporate purposes of the city. The judg ment of the court below is reversed, and the cause is remanded." The present case then is this: The legisla ture of the territory, exercising whatever au242 These views expressed by me are not at all in conflict with the decision in Baltimore & P. R. Co. v. Hopkins, 130 U. S. 210, 226 [32: 908, 914]. The validity of the Act of Congress referred to in that case was not drawn in question. The issue there was as to whether certain things were within or were authorized by the provisions of that Act. The dispute was as to the construction, not the validity, of the Act of Congress. I cannot suppose that the Hopkins case would have been determined as it was, if it had appeared that the authority of Congress to pass the Act referred to was drawn in question. Here there is drawn in question the validity of a statute of the territorial legislature, acting under the United States, which permitted the taxation of certain kinds of lands for city purposes. It seems to me that if a case in a territoria! court turns upon the validity of an act which is authorized by a statute of the territorial legislature deriving its existence and powers from the United States, and if that statute is itself drawn in *question as being repugnant to[513 the Constitution of the United States, then we have a case in which is "drawn in question the validity of . . . an authority exercised under the United States." 155 U. S. STATE OF INDIANA ex rel. WALTER | until some time in the month of August or STANTON, Trustee, Piff. in Err., v. ARISTA GLOVER ET AL. (See S. C. Reporter's ed. 513-522.) Jurisdiction of circuit court-mercantile township trustee. September, 1885, when he abandoned his office and fled the country; that on April 19, 1884, he executed his bond as such trustee with his codefendants as sureties thereon, a copy of which bond is made part of the comlaw-plaint, and the first condition expressed therein is that "the said Arista Glover shall well and faithfully discharge the duties of said office according to law." The complaint stated facts showing that, under the provisions of law in that behalf, the township trustee had no right to incur any further debt on behalf of his township without first procuring an order from the board of county commissioners allowing him to contract therefor; and averred that in violation of the duties of his office and of the terms of his bond, said Glover executed and delivered to R. B. Pollard certain promissory notes, seven in number, aggregating $5375.76, all of the same form, filed as exhibits and made part of the complaint, and one of which is as follows: "$772.50. 1. A suit brought by a state on the relation of a 3. In Indiana a township trustee cannot bind the [No. 57.] State of Indiana, County of Fountain, "Trustee's Office, "Mill Creek School Township, May 19th, 1885. "This is to certify that there is now due Argued and Submitted Nov. 6, 1894. Decided from this township to R. B. Pollard or order Jan. 7, 1895. IN ERROR to the Circuit Court of the United States for the District of Indiana, to review a judgment in favor of defendants on a demurrer to the complaint, in an action brought in the name of the state of Indiana, on the relation of Walter Stanton, trustee, plaintiff, against Arista Glover, et al. defendants, on his official bond, as trustee of Mill Creek township, in the county of Fountain, state of Indiana, the other defendants being sureties on said bonds. Affirmed. Statement by Mr. Chief Justice Fuller: This was an action brought in the name of the state of Indiana on the relation of Walter Stanton, trustee, a citizen of New York, against Arista Glover and four other defendants, citizens of Indiana, on the official bond of said Glover as trustee of Mill Creek township, in the county of Fountain, state of Indiana, the other defendants being sureties on said bond. The complaint was demurred to on the grounds that it did not state facts sufficient to constitute a cause of action and that the court had 514] no jurisdiction of the *subject-matter. The demurrer was sustained, and judgment rendered in favor of defendants, and plaintiff sued out a writ of error. seven hundred & seventy-two & dollars for school supplies bought for and received by this township and payable out of the special school funds, for which taxes are now levied, at the Citizens' Bank, at Attica, Indiana, on the 20th day of January, 1887, with interest at 8 per cent per annum on the amount from date till paid, and attorneys' fees. Arista Glover, "School Trustee of Mill Creek Township." It was further alleged that Glover, "as such trustee, did not at or prior to the execution of said promissory notes or either *or any [515 of them nor at any other time obtain any order from the board of commissioners of said Fountain county authorizing him to contract any indebtedness for or in the name of said Mill Creek school township, but the execution and delivery of said notes and each and every of them was executed and issued in express violation of the provisions of sections one and two of the act of the general assembly of the state of Indiana, entitled 'An act to limit the powers of township trustees in incurring debts and requiring them to designate certain days for transacting township business,' approved March 11, 1875, the same being sections num. bered 6006 and 6007 of the Revised Statutes of the state of Indiana." The complaint then averred the transfer by Pollard of the notes in blank for value received to certain banks and a trust company, citizens of Rhode Island, and their transfer and delivery to the plaintiff; that subsequent to the indorsements and prior to the institution of the suit, Pollard abandoned his residence and citizenship in the United States and fled beyond the seas; and that plainAs to jurisdiction of United States Circuit Court tiff was unable to state whether Pollard had depending on parties and residence, see note to Em-acquired a citizenship in a foreign country, or The complaint averred that Glover was elected trustee of the township, April 7, 1884; qualitied April 19, and entered upon the discharge of his duties as such, and so continued NOTE.-A8 to negotiability of railroad bonds, see note to White v. Vermont & M. R. Co. 16: 221. ory v. Greenough, 1: 640. As to colorable conveyances to enable suit to be brought; motive of transfer; when no objection: coupons; residence of assignor, see note to M'Donald v. Smalley, 7: 287 of what country; but plaintiff averred that he is not now and was not at the commencement of this action either a resident or citizen of the state of Indiana. In the second paragraph or count of the complaint, plaintiff averred that Glover "did, in violation of the duties of his office and of the terms and conditions of his bond aforesaid, purchase and obtain from one R. B. Pollard a large amount of goods for the use of the schools of said Mill Creek township, and in payment therefor did execute and deliver to said R. B. | Pollard" the notes (describing them); and that said Glover, "as such trustee did not at or prior to the purchase of said goods or the execution and delivery of said promissory notes or either or any of them, nor at any other time, obtain any order from the board of commissioners of said Fountain county authorizing him to contract any indebtedness for or in the name of said Mill Creek school township, but the purchasing of said goods and the execution and delivery of said notes and each and every of them was made in express violation of the pro516] visions" *of sections 6006 and 6007. Both paragraphs of the complaint were otherwise the same, and the breach alleged was the execution of the notes or certificates in question. Section 6006 of the Revised Statutes of 1881 is: "Whenever it becomes necessary for the trustee of any township in this state to incur on behalf of his township, any debt or debts whose aggregate amount shall be in excess of the fund on hand to which such debt or debts are chargeable, and of the fund to be derived from the tax assessed against his township for the year in which such debt is to be incurred, such trustee shall first procure an order from the board of county commissioners of the county in which such township is situated, au- | thorizing him to contract such indebtedness." Section 6007 provided for the manner in which such order of the board of county commissioners should be obtained by the trustee. On March 5, 1883, an act of the legislature of Indiana was approved, entitled "An act touching the duties of township trustees with reference to liquidating and contracting indebtedness of townships in certain cases. The second section of this act reads as follows: "And it is further provided that any township trustee, in any county of the state of Indiana, who shall contract any debt in the name or in behalf of any civil or school township of which he may be the trustee, contrary to the provisions of sections one and two of 'An act to limit the powers of township trustees in incurring debts, and requiring him to designate certain days for transacting township business,' approved March 11, 1875 (the same being numbered 6006 and 6007 of the Revised Statutes of the state of Indiana) shall be personally liable, and liable on his official bond, to the holder of any contract or other evidence of such indebtedness, for the amount thereof." Ind. Acts, 1883, chap. 95, p. 114. This act was repealed March 9, 1889 (Ind. Acts, 1889, chap. 138, p. 278) but was in force at the date of the bond sued on and at the date of the alleged breach thereof. Messrs. Jere M. Wilson, Solomon Claypool and Wm. A. Ketcham for plaintiff in error. Messrs. L. T. Michener, Charles B. Stuart, W. W. Dudley, Daniel W. Simms and Lucas Nebeker, for the defendants in error. Mr. Chief Justice Fuller delivered the opinion of the court: The case must be treated, so far as the jurisdiction of the circuit court is concerned, as though Stanton was alone named as plaintiff. Maryland v. Baldwin, 112 U. S. 490 [28: 822]. If the suit could be regarded as founded on the certificates attached to the complaint, there would be a want of jurisdiction, as it does not appear that Pollard could have prosecuted the suit in the circuit court (Rev. Stat. § 629; 18 Stat. at L. 470, chap. 137; 24 Stat. at L. 552, 553, chap. 373) but as the suit is upon the bond, and Stanton and his cestuis que trust were citizens of other states than Indiana, we think the jurisdiction may be maintained. But although the suit is upon the bond, the liability asserted under section two of the act of 1883 is to the holder of the certificates "for the amount thereof," and the breach alleged is the execution of the certificates. Such a liability might be transferable to suc cessive holders of the warrant or certificate, but it would seem quite clear that if the liability.did not exist in favor of the payee, subsequent holders would stand in no better position. Certificates, like those exhibited in the case at bar, made and payable in Indiana, out of a particular fund, and purporting to be the obligations of a corporation existing under public laws and endowed only with restricted powers granted for special and purely local purposes of a non-commercial character, are not gov erned by the law merchant, and are open in the hands of subsequent holders to the same defenses as existed against the original payee. Stanton v. Shipley, 27 Fed. Rep. *498; [518 State v. Hawes, 112 Ind. 323; Merrill v. Monticello, 138 U. S. 673 [34: 1069]. The contention is that where an order of the county commissioners is requisite, under sections 6006 and 6007 of the Revised Statutes of Indiana, to empower a township trustee to contract indebtedness, and has not been ob tained, the mere fact of the issue of a warraut or certificate by the trustee, in form the warrant or certificate of the township, authorizes the recovery of the amount thereof of the trustee and his sureties by suit on the official bond. We cannot concur in that view. The section in question provides that when the trustee contracts a debt in the name or in behalf of the township, without the proper order of the county commissioners, if required, liability on the official bond is incurred to the holder of the contract or other evidence of such indebtedness. The indebtedness thus referred to is manifestly an indebtedness contracted within the line of official duty and authority for something furnished to or obtained for the township, although in disregard of the provisions of sections 6006 and 6007. The sureties were not subjected to liability by the statute for the payment of warrants or certificates which, apart from those sections, it was not within the authority of the trustee to execute, or which were fraudulent in themselves, but only when persons had in good faith parted with money or property to the township on the strength of the official character of the transaction. Such we understand to be the coustruction put upon the act by the highest judicial tribunal of Indiana. That court in Jeffersonville School Twp. v. Litton, 116 Ind. | has been issued without any consideration 467, 475, pointed out that by the first section of the act provision was made for the protection of creditors without actual knowledge of the facts where a township trustee had there tofore undertaken to incur debts without an order of the county commissioners, when such an order was requisite; and that by the second section it was attempted to check further extravagance, and at the same time to save inno cent creditors. But a writing purporting to be evidence of such indebtedness could not create it. And, in respect of school supplies, the supreme court of Indiana has decided again 519] *and again, that a township trustee has no power, by any form of obligation, to bind the corporation of which he is the agent or trustee by contract for school supplies, unless supplies suitable and reasonably necessary have been actually delivered to and received by the township." Boyd v. Mill Creek School Twp. 114 Ind. 210. reason, void in his hands, it was equally in valid in the hands of any subsequent holder." whatever, nothing having been given or received therefor, the holder of such paper, whether he be the payee named therein or an assignee, has no right of action under the act of 1883, because the trustee has not, in any legal or equitable sense, contracted a debt. Such paper creates no obligation against any one; it is void. Axt v. Jackson School Twp, 90 Ind. 101. Since township trustees can issue obligations, binding on the township, only in case a debt has been contracted, and since, in any event, paper issued as evidence of an actual indebtedness already incurred by a municipal corporation, which possesses only limited powers, conferred for special and local purposes of a purely non-commercial character, is not negotiable according to the law merchant, a subsequent holder of paper issued by a township trustee, can occupy no better ground than that occupied by the person to whom it was issued. The certificate having In State v. Hawes, 112 Ind. 323, the action been issued in the name and in behalf of the was brought on the official bond of a trustee township without power or authority, and not to recover for a certificate made to Pollard, as evidence of any debt contracted by the trus purporting to be for school supplies bought tee, it was absolutely void in the hands of the and received by the township, it being averred original payee, both as respects the trustee perthat the same was executed in violation of sec-sonally and the township, and being, for that tions 6006 and 6007. The certificate was in fact issued without any actual consideration, and the supreme court said: "The liability In State v. Helms (136 Ind. 122) the acimposed by the act of 1883 requires, as a con- tion was against Helms and others, sureties dition precedent, that the township trustee on his bonds, as trustee of Sugar Creek townmust have contracted a debt, in the name or in ship, to enforce the liability on such bond, and behalf of his township, either civil or school, the complaint averred that Helms, being the and the debt must have been contracted in trustee of the township, was engaged in erectviolation of the provisions of sections 6006 and ing a school house suitable for the educational 6007. If, therefore, the transaction in which purposes of the township and necessary therethe certificate had its inception was such as to for, and that to complete the building it bccreate no debt, or if the debt created was not came necessary for him to borrow money and within the prohibition of the above mentioned incur an indebtedness on the part of his townsections, manifestly the statutory liability has ship; that in order to obtain money in that benot been incurred by any one. The half, he, as such trustee, and in *the name[521 mere delivery of a piece of paper which im and in the behalf of the township executed a ports an obligation to pay money, but which is promissory note to the relator, exhibited with in fact no evidence of an actual existing debt, the complaint; that thereupon the trustee redoes not constitute the contracting of a debt. ceived the sum represented by the note in It cannot be supposed that it was the purpose money for the purposes aforesaid, and that the of the statute to enable a holder of a contract, loan was made and the fund was received by or other evidence of indebtedness, issued by a the trustee for those purposes, but that the township trustee in the name or in behalf of trustee, without the knowledge of the plainhis township, to hold the trustee personally tiff, appropriated the fund to his own use; that liable, and liable on his official bond, whether the facts existed bringing the case within secan indebtedness had been in fact contracted tions 6006 and 6007, but the trustee did not at or not. A recovery in any case is limited by any time procure an order from the board of the statute to the amount of the indebtedness, commissioners of said county, in which the and not by the amount stipulated in the con- township was situated, authorizing him to contract. Hence, given a case in which there is tract such indebtedness; and that plaintiff no indebtedness, that is, no one who occupies loaned the money to the township in good the situation of a creditor, and there can be no faith and without any knowledge of the facts recovery under the statute. Stanton v. Shipley, that there were no funds in hand or a sufficient 27 Fed. Rep. 498. A township trustee can- amount of funds arising from the current levy not contract a debt for school supplies unless to pay the debt so made. The supreme court supplies suitable and reasonably necessary for of Indiana held that the note, which was 520] the township have been actually deliv-signed "trustee of Sugar Creek Township, Inered to, and accepted by, the township. Bloom diana," was under the circumstances, the note ington School Trop. v. National School Furnish of the township and not of the trustee indiing Co. 107 Ind. 43; Reeve School Twp. v. Dod-vidually; that a municipal or quasi corporason, 98 Ind. 497; Wallis v. Johnson School Twp. 75 Ind. 368. "Where, therefore, as is the case here, paper purporting to be the obligation of a township tion can make in a proper case a promissory note, and thereby bind itself for any debt contracted in the course of its legitimate business, for any expenses incurred in any matter or |