bunal of Missouri in respect to the interpretation of a statute of that state when the latter decision had been made after the transaction in controversy had arisen. Mr. Justice Bradley, speaking for the unanimous court, said:

"We do not consider ourselves bound to follow the decision of the state court in this case. When the transaction in controversy occurred, and when the case was under the consideration of the circuit court, no construction of the statute had been given by the state tribunals contrary to that given by the circuit court. The federal courts have an independent jurisdiction in the administration of state laws, co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that, by the course of their decisions, certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of state constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is.. But, where the law has not been thus settled, it is the right and the duty of the federal courts to exercise their own judgment, as they also always do in reference to the doctrines of commercial law and general jurisprudence. So, when contracts and transactions have been entered into, and rights have accrued thereon, under a particular state of the decisions, or when there has been no decision, of the state tribunals, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt. Acting on these principles, founded, as they are, on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well-considered decisions of the state courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the states in controversies between citizens of different states was to institute independent tribunals, which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication. As this matter has received our special consideration, we have endeavored thus briefly to state our views with distinctness, in order to obviate any misapprehensions that may arise from language and expressions used in previous decisions. The principal cases. bearing upon the subject are referred to in the note, but it is not deemed necessary to discuss them in detail."

In Louisville Trust Co. v. City of Cincinnati, supra, the United States circuit court of appeals for the Sixth circuit, in treating of this subject, said:

"A well-grounded exception exists where contracts and obligations have been entered upon before there has been any judicial construction of the statutes upon which the contract or obligation depends, by the highest court of the state whose statute is involved. In such a case, if a court of the United States obtains jurisdiction of a question touching the validity, effect, or obligation of such a contract, it will, while 'leaning to an agreement with the state court,' exercise an independent judgment as to the validity and meaning of such contract, although the meaning and validity of state statutes may be an element in the case, and will not be bound to follow opinions

of the state court construing such statute if such decisions were rendered after the rights involved in the controversy originated."

Another reason why the decision of the supreme court of Kansas does not rule this case is that the vital question here is not whether or not the act attaching Kearney county to Hamilton county was constitutional, but it is whether or not the unconstitutionality of that act, if conceded, constitutes any legal defense to an action by an innocent third party upon this warrant; and that is a question of general jurisprudence, which it would be a dereliction of duty for a federal court to decline to consider and determine for itself. Hartford Fire Ins. Co. v. Chicago, M. & St. P. Ry. Co., 36 U. S. App. 152, 156, 17 C. C. A. 62, 65, and 70 Fed. 201, 203, and cases there cited. For these reasons, we have deemed it incumbent upon us to consider and determine the merits of this question; and after its consideration, which we have made with great deference to the opinion of the supreme court of Kansas, we are constrained to say that we have been unable to reach the result which that court has attained. We proceed to state briefly the reasons upon which we rest our conclusion.

It

The county of Kearney has been the same quasi municipal, political, and corporate entity ever since it was created, in March, 1887. has during all this time had the same name, the same boundaries, and the same territory. Its inhabitants have undoubtedly changed, but the municipal entity of which they formed a part while they were citizens within its territory has not. It has been said that the particles which compose the human body decay and are replaced by others several times during the average duration of human life; but during all this time each man remains the same identical person, and his rights, duties, and liabilities do not vary with the changing com. ponents of his physical organization. In the same way, the inhabitants of a municipal or political subdivision of a state, one by one, die or remove from its territory, and are replaced by others; but the municipal corporation remains unchanged, and its rights and liabilities are not affected by the departure of one and the advent of a succeeding generation of men. The same old commonwealth of Massachusetts exists to-day which was inspired by the life and words, and mourned the loss, of old Samuel Adams, though perhaps no man now survives who lived within its borders during his life. This county of Kearney, then, has been the same quasi municipal body from March, 1887, to the present moment. During about one year of its existence it adopted the name and acted under the title of the township of Kearney. But the township had the same boundaries, the same territory, and the same people as the county of Kearney during its entire existence. During the time while this township of Kearney existed, the legislature of Kansas, which had the power to make counties and townships, the governor of Kansas, who had authority to approve or veto the acts of the legislature, the officers and inhabitants of Hamilton county, and the inhabitants of Kearney county, all supposed that this county of Kearney was the township of Kearney. While the record does not disclose the several acts of the officers and inhabitants of this county during this period, it is conceded on all hands that they acted as a township for nearly 12 months, and it

may have been, and probably is, true, that a township trustee, a township clerk, and a township treasurer were first appointed by the commissioners of Hamilton county, and then elected, under paragraph 1607; that school districts were separately described and numbered; that the schools were supported under the superintendence of the commissioners of Hamilton county, under paragraph 1610; that justices of the peace of the township were chosen, under paragraph 7066; that road overseers were elected, and roads and bridges were repaired and improved, under paragraphs 7070 and 7133; and that the poor of the county of Kearney were supported and cared for by the trustee of Kearney township, under paragraphs 4027, 4046, and 4048 of the General Statutes of Kansas of 1889, for more than 11 months. It may be conceded that if the state or any taxpayer of the county of Kearney had challenged the acts of this township, or of its officers, by a writ of quo warranto, or by an application for an injunction, before public interests were affected and private rights had vested under them, they might have been prevented. But neither the citizen nor the state questioned the lawful existence of this township, or the legality of the acts of its officers, until the life of the former was legally terminated by the organization of the county, and the acts of the latter had all. been completed, and the rights of third parties had vested under them. Undoubtedly, the trustee of this township supported the poor, the township board and the road overseers improved and repaired the roads and bridges, and the trustee drew orders on the township treasurer to pay for these repairs and improvements, the children of the inhabitants were taught, on the theory that this was a township; its justices of the peace solemnized marriages, took and certified the acknowledgments of deeds, and decided lawsuits, and its township board audited and allowed accounts, and the trustee issued warrants for them, which strangers purchased, while no one complained,-no one sounded a note of warning. Are all these acts void because every one was mistaken in supposing that Kearney county was attached to Hamilton county? Are the couples married by the jus tices of this township still single? Are the deeds whose acknowledgments they certified, and the judgments they rendered, void? Are the just claims of those who supported the poor, and repaired the roads and bridges for this county, at the request of these township officers, their allowance by the township board, and the warrants issued for them, all void? And may this county retain the benefits and improvements it has thus obtained, and yet deprive those who furnished them, or those who subsequently purchased its warrants, of all right to a return of the money which they invested in them? We think not. In our opinion, there is an established rule of jurisprudence which prevents results so unjust and deplorable. That principle is that the acts of ordinary municipal bodies into which the people have organized themselves under color of law depend far more upon general acquiescence than upon the legality of their action or the existence of every condition precedent prescribed by the statutes under which they organize and act. It is that general acquiescence by the inhabitants of the political subdivision so organized, and by the departments and officers of the state having official relations with it,

gives to the acts and contracts of a municipal or quasi municipal corporation de facto all the force and validity of the acts of a corporation de jure. The interests of the public, which depend upon such municipalities, the rights and the relations of private citizens which become vested and fixed in reliance upon their existence, the intolerable injustice and confusion which must result from an ex post facto avoidance of their acts, commend the justice, and demand the enforcement, of the rule that "when a municipal body has assumed, under color of authority, and exercised, for any considerable period of time, with the consent of the state, the powers of a public corporation, of a kind recognized by the organic law, neither the corporation nor any private party can, in private litigation, question the legality of its existence." National Life Ins. Co. v. Board of Education of City of Huron, 27 U. S. App. 244, 259, 10 C. C. A. 637, 647, and 62 Fed. 778, 787; Ashley v. Board, 16 U. S. App. 656, 671, 8 C. C. A. 455, 461, and 60 Fed. 55, 61; People v. Maynard, 15 Mich. 463, 470; School Dist. No. 25 v. State, 29 Kan. 42, 49, 50; City of St. Louis v. Shields, 62 Mo. 247, 252; State v. Carroll, 38 Conn. 449, 471; State v. Rich, 20 Mo. 393, 396; Clement v. Everest, 29 Mich. 19, 23; .Donough v. Hollister, 82 Mich. 309, 46 N. W. 782, 783; Carleton v. People, 10 Mich. 250; Clark v. Com., 29 Pa. St. 129; Com. v. McCombs, 56 Pa. St. 436.

An attempt is made to escape from the effect of this rule on the ground that there can be no de facto corporation under an unconstitutional law; that there can be no such thing as a corporation in fact where the only legal right of such a corporation to exist rests on a law that is clearly void. The effort must, in our opinion, be unavailing in this case-First, because this township was not organized under color of the unconstitutional law, but under color of the general laws of Kansas relating to township organizations; and, second, because the proposition is unsound that there can be no de facto corporation or de facto officer under an unconstitutional law.

If, as in Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, the corporate body whose acts are in question, and the offices filled by its officers, were unknown to the constitution of the state of Kansas, and if they constituted an anomaly in its system of government,-if under its constitution and laws there could not be a township or township officers under any circumstances, as under the constitution of Tennessee there could not be a board of county commissioners,-in that case the effort of counsel for the county might succeed. But, as we have seen, the legislature of Kansas had authority to create counties and townships when and as it directed. It had provided by general laws when the people of any political subdivision might organize themselves into, and exercise the privileges and franchises of, civil townships. All these laws were constitutional and valid, and it was under these, and not under the void law which enacted, the attachment of Kearney county to Hamilton county, that this township was organized, and that its officers were chosen and acted. The law which attempted to attach Kearney county to Hamilton county made no provision for township organization, or for township officers. It cannot therefore be successfully maintained that there was no valid

law authorizing the creation of townships and the choice of township officers, and that for this reason there could be no de facto township and no de facto township officers. There were such laws, and in compliance with them, and under color of them, every step in the organization and operation of this township was taken. The only

mistake made was that the citizens and officers supposed that a condition precedent to their action had been complied with, which had not been fulfilled.

In School Dist. No. 25 v. State, 29 Kan. 42, 49, 50, this very question was decided by the supreme court of that state. An unconstitutional law had been passed which purported to detach certain territory from the county of Stafford, and to attach it to the county of Barton. Thereupon, upon the supposition that this law was valid, the county superintendent of Barton county and the inhabitants of a portion of this territory organized a school district, elected officers, and voted for an issue of the bonds of the district to build a school house under the general laws of the state. When an action was brought on the bonds, the trial court held that while the attaching act was void, and the superintendent of Barton county had no authority to organize the school district, yet it was a school district de facto, and its bonds were binding obligations on the de jure district which succeeded. Answering the position urged upon us in the case at bar that there could be no de facto corporation because the attaching act was void, the supreme court said:

"The plaintiff in error (defendant below) claims that school district No. 58 could not have been a de facto organization or school district, because, as it claims, there was no law in existence under which it could have been organized, or could have a legal and valid existence. This, we think, is a mistake. It was organized under the general laws of the state authorizing the creation and organization of school districts (Laws 1876, c. 122, art. 3; Comp. Laws 1879, p. 824 et seq.); and every act that was done or performed with reference to the organization of this school district was done and performed under valid and existing laws. The school district was not organized under the act changing the boundaries of Stafford and Barton counties, for that act made no provision for the organization or creation of school districts. That act said nothing with reference to school districts. But the school district was really and in fact organized and created under said chapter 122 of article 3 of the Laws of 1876, and the bonds were voted and issued under valid and existing laws, and the school-fund commissioners purchased the same under valid and existing laws."

Moreover, we are unable to yield our assent to the broad proposition that there can be no de facto corporation under an unconstitutional law. Such a law passes the scrutiny and receives the approval of the attorney general, of the lawyers who compose the judiciary committees of the state legislative bodies, of the legislature, and of the governor before it reaches the statute book. When it is spread upon that book, it comes to the people of a state with the presumption of validity. Courts declare its invalidity with hesitation and after long deliberation and much consideration, even when its violation of the organic law is clear, and never when it is doubtful. Until the judiciary has declared it void, men act and contract, and they ought to act and contract, on the presumption that it is valid; and where, before such a declaration is made, their acts and contracts