jurisdiction to review the judgments of the N A CERTIFICATE from the United supreme court of the Philippine Islands that States Circuit Court of Appeals for the they may be reviewed here “in the same Sixth Circuit presenting the question as manner, under the same regulations, and by to whether a bona fide purchaser of county the same procedure, as far as applicable, as bonds for value and before maturity was en. the final judgments and decrees of the cir- titled to assume that a condition precedent cuit courts of the United States." In such to the issue of such bonds had been percases alleged errors not stated in the assign- formed. Answered in the affirmative. ment of errors filed with the petition for the writ have sometimes been considered. Statement by Mr. Justice Moody: The limits of this practice are accurately Plaintiff in error brought an action in the stated in the thirty-fifth rule of this court. circuit court of the United States for the There it is said that if errors are not as- western district of Kentucky upon certain signed with the petition for the writ they bonds and coupons purporting to have been will be disregarded, except that the court | issued by the defendant in error, one of the at its option may notice a plain error not counties of the state of Kentucky. The fol. thus assigned.

lowing was the form of the bond: But we find no such plain error in the opinion of the supreme court as warrants us

United States of America, in reversing its judgment. The findings of County of Green, State of Kentucky. fact made by that court support and re

$500.00 quire the judgment which it rendered. We For the Cumberland & Ohio Railroad. do not think it necessary or desirable to se- Twenty years after date, the county of lect from an opinion, which was engaged Green in the state of Kentucky, will pay to with a discussion of evidence and the infer- the holder of this bond the sum of $500 with ences which might properly be drawn from interest thereon at the rate of 6 per cent it, statements of law and subject them to per annum, payable semiannually upon minute scrutiny, where, on the whole, it is presentation of the proper coupons hereto clear that the facts found by the court justi- attached, the principal and interest being fy the judgment which it rendered. There- payable at the Bank of America, in the city fore we do not consider any questions except of New York. those set forth in the assignment of errors, In testimony whereof, the judge of said and, deeming that they allege no errors in county of Green has hereunto set his hand law, we affirm the judgment.

and affixed the seal of said county, on the Affirmed.

1st day of April, A. D., 1871, and caused the same to be attested by the county clerk,

who has also signed the coupons hereto atMARY AMIS QUINLAN, Executrix, tached.

(Green county seal.) GREEN COUNTY, Kentucky.

T. R. Barnett, Judge. Cases certified-form of question.

D. T. Towles, Clerk. 1. A question containing more than a single question or proposition of law can- The case was tried without a jury, and not be certified by a circuit court of appeals the court, after finding facts, rendered judg. to the Supreme Court of the United States ment for the defendant. The case then went for determination.

to the court of appeals for the sixth circuit, Evidence - presumption - performance of and that court has certified here two ques

condition precedent to issue of municipal tions of law upon which it desires instrucbonds. 2. A presumption, though not a conclu- tions, with a statement of facts upon which

In addition to the sive one, that there has been a compliance the questions arise. with the condition precedent to the issuance statement of facts we take into account the of county bonds in payment of a subscrip- material parts of the charter of the Cumbertion to the capital stock of a railway com- land & Ohio Railroad Company, § 15 of pany that the county should first be exoner: which contains the following provisions: ated from a prior subscription to the stock of another railroad company, arises from the

"Sec. 15. That any city, town, or county mere fact of subscription and issuance by through which said proposed road shall pass the officer charged with the duty of issuing is hereby authorized to subscribe stock in the bonds upon the performance of the con- said railroad company in any amount any dition precedent.

such city, town, or county may desire; and

the county court of any such county is au[No. 213.]

thorized to issue the bonds of their respecArgued February 27, 28, 1907. Decided April tive counties in such amount as the county 8, 1907.

court may direct; and the chairman and

V.

board of trustees, or mayor and aldermen, and kind of payment that may be set forth of any town, and the mayor and aldermen in the subscription.” The commissioners of or council of any city, are hereby authorized the Cumberland & Ohio Railroad requested to issue the bonds of their respective towns the county court to submit to the qualified or cities in like manner. All said bonds voters of the county the question whether shall be payable to bearer, with coupons at the county should subscribe to $250,000 of tached, bearing any rate of interest not ex- the capital stock of the company, payable ceeding 6 per cent per annum, payable semi- in bonds of the county, whereupon the judge annually in the city of New York, payable of the county court on the 17th of June, at such times as they may designate, not 1869, ordered an election in the following exceeding thirty years from date; but before terms: any such subscriptions on the part of any

"Whereas the commissioners of the Cumcity, town, or county shall be valid or bind- berland & Ohio Railroad Company, by viring on the same the mayor and aldermen, tue of the authority delegated to them by or chairman and board of trustees of any the charter of said company, have retown, the mayor and aldermen or council of quested the county court of Green county, any city, and the county court of any coun- to order an election in said county of Green, ty, having jurisdiction, shall submit the and to submit to the qualified voters of said question of any such subscription to the county the question whether said county qualified voters of such city, town, or coun- court shall subscribe for and on behalf of ty in which the proposed subscription is said county $250,000 to the capital stock of made, at 'such time or times as said chair- the Cumberland & Ohio Railroad Company, man and board of trustees, or mayor and al.. and payable in the bonds of said county, havdermen of any town, mayor and aldermen ing twenty years to run, and bearing 6 per or council of any city, or the county cent interest from date, and upon condition court of any county, as aforesaid, may, by that said company shall locate and construct order, direct; and should a majority of the said railroad through said county of Green, qualified voters voting at any such election and within 1 mile of the town of Greensburg, vote in favor of subscribing said stock in in said county, and shall expend the amount said railroad company, it shall be the duty so subscribed within the limits of Green counof such county court, trustees, or other au- ty; and also upon the further condition that thorities aforesaid, to make the subscrip- said bonds shall not be issued or said countion in the name of their respective cities, ty pay any part of the principal or interest towns, or counties, as the case may be, and on said amount subscribed to said Cumberproceed to have issued the bonds to the land & Ohio Railroad Company, until said amount of such subscription as hereinbefore county of Green is fully and completely exdirected;

onerated from the payment of the capital

stock voted by said county, and authorized “That, if preferred, the application herein to be subscribed by said Green county court authorized to be made to the county court to the Elizabethtown & Tennessee Railroad, may be made to the presiding judge of the or any part of the interest thereon. It is county court; and all the powers herein therefore ordered by the court that an elecgiven to the county court are hereby vested tion, by the qualified voters of Green coun. in the presiding judge of the county court. ty, at the voting places in said county, be At all meetings of the stockholders for the held and conducted by the several officers, purpose of electing officers, or any other as prescribed by law, for holding elections, purpose, the said town, cities, and counties on the 3d day of July, 1869, to vote on the may, by proxies duly authorized by the au- question as to whether or not the said counthorities thereof, cast a vote for each share ty court shall, for and on behalf of said so subscribed by said town, city, or county.” county, subscribe $250,000 to the capital The charter gives to the Cumberland & stock of said Cumberland & Ohio Railroad, Ohio Railroad "all the powers and privi- conditioned and to be paid as above stated." leges conferred upon the Louisville & Nash- The election was duly held July 3, 1869, ville Railroad Company by the laws of and the vote was in the affirmative. During Kentucky for constructing and operating the year before this vote the voters of the their said proposed railroad.” The charter county had voted in favor of a proposition to of the Louisville & Nashville Railroad Com- subscribe to the stock of the Elizabethtown & pany provides “that said railroad company Tennessee Railroad, 'thereupon the counmay receive subscriptions of stock to their ty judge had ordered the clerk of his court company by individuals, towns, cities, coun- to make a subscription to the stock of the ties, or other corporations, whether payable Elizabethtown & Tennessee Railroad Comin money or other things, with such terms pany, "on the terms specified in the order and time of payment, conditions annexed, submitting the question to a vote.” This

was the subscription from which Green The plaintiff is the bona fide holder for county desired to be exonerated before the value of the bonds and coupons in suit but Cumberland & Ohio Railroad bonds should had notice that the railroad had not been be issued, or any part of their principal or laid further than Greensburg, and therefore interest paid. On June 3, 1870, the county did not extend "through” the county. judge entered an order reciting the election The questions certified by the circuit at which the qualified voters had approved court of appeals are: the subscription to the capital stock of the "Ist. Do the facts found by the circuit Cumberland & Ohio Railroad, and conclud- court conclude or estop the county from deing: “Now, therefore, I, Thomas R. Bar- nying liability to the plaintiff upon the nett, the presiding judge of the Green coun-bonds and coupons in suit, by reason of ty court, by virtue of the authority in me noncompliance with the terms and condivested by law, and to carry out the wishes tions imposed by the favorable vote of the of said voters, do hereby subscribe for $250,- county authorizing a subscription to the 000 of the capital stock of said Cumberland stock of the Cumberland & Ohio Railroad & Ohio Railroad Company for and on behalf Company and the issuance of bonds in pay. of said county of Green, which subscriptionment therefor? Or, if this question should is to be paid in the bonds of said county be deemed too broad, then, as prescribed in said order of submission, “2d. Assuming the facts to be as found, and this subscription is made with the con- was a bona fide purchaser, before maturity, ditions set out in the order of this court or of these bonds and coupons for value, entidering said election, and now of record in tled to assume in his purchase that Green the office of this county."

county had, before their issuance, been At the April term, 1871, the supreme 'fully and completely exonerated from the court of the state rendered a decision in the payment of the capital stock subscribed for case of Mercer County Court v. Kentucky by the county court of said county for and River Nav. Co. 8 Bush, 300. It is argued in behalf of said county to the Elizabeththat this decision shows that the subscrip- town & Tennessee Railroad Company ??” tion to the stock of the Elizabethtown & Tennessee Railroad was void. However Messrs. Edmund F. Trabue, George Duthat may be, at a time which does not dis- Relle, John J. McHenry, John C. Doolan, and tinctly appear, but later than that decision, Attilla Cox, Jr., for Quinlan. the judge of the county court issued and Messrs. Ernest Macpherson and John W. delivered to the Cumberland & Ohio Railroad Lewis for Green county. Company bonds of Green county to a small amount. On August 15, 1872, the judge, in Mr. Justice Moody, after making the forea formal order, reciting that application had going statement of facts, delivered the opinbeen made for the issue of the balance of ion of the court: the bonds, directed that, "the court being The first question certified is thought by sufficiently advised,” they be signed and is a majority of the court to contain more sued. Thereupon certificates of 2,500 shares than a single question or proposition of law, of that stock of the par value of $100 per and for that reason it is not answered. share were delivered to Green county, whic The second question deals with the exon. has since held and owned them. It was con- eration from subscription to the stock of ceded at the argument that the county had the Elizabethtown & Tennessee Railroad made payment of interest on the bonds thus Company which was made by the vote of the issued to the Cumberland & Ohio Railroad. county a condition to the issue of the bonds, No formal or express exoneration of said and we confine our consideration to that county from the payment of the subscription question and the facts relevant to it. to the stock of the Elizabethtown & Ten- There is no doubt of the power of the denessee Railroad was ever made or attempted, fendant to issue the bonds. The legislature but nothing further has, up to this date, of Kentucky gave it in plain terms, upon ever been done in respect to it, and neither the condition that its exercise receive the bonds by the county nor stock by the said approval of the qualified voters. That aplast-named railroad company have ever been proval was given upon the condition imissued or delivered in execution of said or posed by the vote that the bonds should not ders or under the terms of said subscrip.be issued before the county had been exontion. The proceeds of $150,000 of the bonds erated from a subscription to the stock of were expended within Green county in the another railroad company.

The law gave partial construction of 5 miles of the road the county the right to impose conditions. to Greensburg. This 5 miles was completed This particular condition is a condition preby a lessee at its own expense. Nothing cedent to the lawful issue of the bonds al. else has been done within the county. though it must not be understood that this

statement applies to the other so-called been complied with, merely from the facts conditions expressed in the vote. Of of the subscription and issue. But in this them nothing is intended to be said. If case there was a recital, and subsequent there hau been a recital in the bonds which cases have limited the adjudication to the imported that the condition had been per- precise point necessarily decided. Citizens' formed, that would have been conclusive in Sav. & L. Asso. v. Perry County, ubi supra. favor of a bona fide holder. Provident Life & In Marshall County v. Schenck, 5. Wall. 772, T. Co. v. Morcer County, 170 U. S. 593, 42 L. 18 L. ed. 556, it was said obiter by Mr. Jused. 1156, 18 Sup. Ct. Rep. 788; Gunnison tice Clifford, speaking of bonds of the kind County v. E. H. Rollins & Sons, 173 U. S. under consideration, “the bona fide holder 255, 43 L. od. 689, 19 Sup. Ct. Rep. 390. has a right to presume they were issued But there was no such recital in the body under the circumstances which gave the of these bonds, and the words of the head - requisite authority.” The same dictum was ing, "For the Cumberland & Ohio Railroad,” in substance repeated by the same justice cannot be interpreted as such without going in Lexington v. Butler, 14 Wall. 282–296, 20 beyond the decided cases, which themselves L. ed. 809-812. have gone far. In the absence of a recital In Pendleton County v. Amy, 13 Wall. 297, it is open to the defendant to show that the 20 L. ed. 579, it appeared that the county condition which it had a right to impose of Pendleton had issued bonds in aid of a and did impose by the vote of its elect- railroad company. An act of the legislature ors had not been complied with. Citizens' gave the county the authority to issue the Sav. & L. Asso. v. Perry County, 156 U. S. bonds, provided a majority of the real es692, 39 L. ed. 585, 15 Sup. Ct. Rep. 547. In tate owners of the county should so vote. other words, in the absence of a recital, the One of the pleas of the defendant in an acperformance of the condition is not conclu-tion on the bonds was that they had never sively presumed.

been authorized by the vote prescribed in the But, by the terms of the law, it was the act which gave the power to issue them. duty of the judge of the county court, in This plea was demurred to, and the court whom the powers of the court were vested, passed upon the question thus raised. Mr. to issue the bonds. After a favorable vote Justice Strong, in delivering the opinion of has been had in an election called by the the court, said: court, the law provides that "it shall be the "If the right to subscribe be made deduty of said county court ... to make pendent upon the result of a popular vote, the subscription in the name of their . the officers of the county must first detercounties .. and proceed to have is- mine whether the vote had been taken as sued the bonds to the amount of such sub-directed by law, and what the vote was. scription, as hereinbefore directed.” This When, therefore, they make a subscription, clearly placed upon the judge the duty and and issue county bonds in payment, it may responsibility of ascertaining and determin- fairly be presumed, in favor of ar innocent ing whether the condition of the issue of the purchaser of the bonds, that the condition bonds had been complied with. Coloma v. which the law attached to the exercise of Eaves, 92 U. S. 484, 23 L. ed. 579.

the power has been fulfilled. To issue the If he had issued the bonds and they had bonds without the fulfilment of the prececontained in them recitals which fairly im- dent conditions would be a misdemeanor, ported a compliance with the condition upon and it is to be presumed that public officers the happening of which their issue was au-act rightly. We do not say this is a conthorized, they would have gone into the clusive presumption in all cases, but it has hands of innocent holders with a conclusive more than once been decided that a county presumption that the condition had been may be estopped against asserting that the performed. This principle has been an. conditions attached to a grant of power nounced by repeated decisions of this court were not fulfilled.” and needs no other citations to support it In this case there was no recital in the than those already made. Without such bond. It appeared by the pleadings that recital the presumption is, as has been the bonds had been exchanged for the stock shown, not conclusive. The further ques of the railroad company which was retion arises, therefore, whether there is any tained, and the decision was based upon the presumption at all of the performance of ground that the retention of the stock crethe condition from the facts of subscription ated an estoppel. and issue. In the first case dealing with this

In the case of Coloma v. Eaves, supra, question (Knox County v. Aspinwall, 21 the opinion of the court lends some counteHow. 539, 16 L. ed. 208), it was said that a nance to the broad principle stated in Knox purchaser of such bonds had the right to County v. Aspinwall, but Mr. Justice Bradassume that the condition of their issue had i ley, in a concurring opinion, said:

"I dissent from the opinion of the court | dition precedent. That condition was that in this case, so far as it may be construed the county should be “fully and completely to reaffirm the first point asserted in the exonerated from the payment of the capital case of Knox County v. Aspinwall, to wit, stock voted by said county, and authorized that the mere execution of a bond by of- to be subscribed by said Green county court ficers charged with the duty of ascertain to the Elizabethtown & Tennessee Railroad.” ing whether a condition precedent has been the performance of that condition did not performed is conclusive proof of its per necessarily require any formal release or formance. If, when the law requires a vote the execution of any paper whatever. It of taxpayers before bonds can be issued, was completely fulfilled if, from any cirthe supervisor of a township, or the judge cumstance, it should appear that the counof probate of a county, or other officer or ty had been effectively relieved from any magistrate, is the officer designated to as liability on account of the vote in aid of certain whether such vote has been given, the Elizabethtown & Tennessee Railroad. and is also the proper officer to execute, and It would be impossible for any purchaser of who does execute, the bonds, and if the the bonds to ascertain whether this condibonds themselves contain a statement or re- tion had been complied with, except by an cital that such vote has been given, then inquiry, which would naturally be made of the bona fide purchaser of the bonds need the judge himself. The judge determined go back no further. He has a right to rely that it had been complied with, and the on the statement as a determination of the fact that for thirty-eight years no one has question. But a mere execution and issue made any claim against the county on acof the bonds without such recital is not, in count of its supposed liability to subscribe my judgment, conclusive. It may be prima to the stock of the Elizabethtown & Tenfacie sufficient, but the contrary may be nessee Railroad shows conclusively that he shown. This seems to me to be the true was right. distinction to be taken on this subject; and Construing the second question to inquire, I do not think that the contrary has ever not whether there is conclusive presumpbeen decided by this court."

tion, but whether, on the facts found, there These cases left it uncertain whether the is any presumption at all that the county court would give to the facts of subscription had been exonerated from its former subto stock and issue of bonds in payment scription to another railroad, we answer it therefor by officers charged with the duty "Yes.” of ascertaining whether conditions precedent had been complied with, the same conclusive effect as to the validity of the bonds IROQUOIS TRANSPORTATION COM which would exist when to those facts was

PANY, Claimant of the Steamer "Winne

bago,” etc., Plff. in Err., added a recital in the bonds themselves. But the tendency, observable in the earlier DE LANEY FORGE & IRON COMPANY. cases, to deny to bonds in the hands of an

(No. 218.) innocent holder any other defense than a want of power of the maker was arrested IROQUOIS TRANSPORTATION COM. by the cases of Buchanan v. Litchfield, 102 PANY, Claimant of the Steamer "Winne. U. S. 278, 26 L. ed. 138, and Citizens' Sav. bago," etc., Plff. in Err., & L. Asso. V. Perry County, ub. sup.,

V. which held that the mere facts of the sub- | GEORGE W. EDWARDS, Frank W. Eddy, scription to stock and issue of bonds con

and George W. Edwards, Executor of the

Estate of H. D. Edwards, Deceased, Cotaining no recital left it open to the obligor

partners as H. D. Edwards & Company. to show that a condition precedent had not

(No. 219.) been fulfilled. But these cases in no way conflict with the view expressed by Mr. Jus- Error to state court-review of questions of tice Strong in Pendleton County v. Amy, local law. and by Mr. Justice Bradley in Coloma v. 1. The decision of a state court upon Eaves, that a presumption arises from the questions of local law is not subject to remere fact of subscription and issue, though view in the Federal Supreme Court on writ not a conclusive one. Independent of au- of error to the state court. * thority such a presumption exists and is constitutional law—who may raise question, but an instance of the broader presumption

2. The question whether a state statute that officers charged with the performance giving a lien upon a vessel, enforceable in of a public duty perform it correctly. In nished on the credit of the vessel, is an un

a state court, for materials and supplies furthe case at bar the judge of the county constitutional infringement upon the exclucourt was charged with the duty of issuing sive admiralty jurisdiction of the Federal the bonds upon the performance of the con- courts of liens of a maritime character, is

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1049.

V.

.