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was cerebral apoplexy; that he did not think the insured had any other disease, acute or chronic, or had ever had any injury or infirmity; and that there was nothing in his habits or mode of life predisposing him to disease, except a tendency to overwork.
Several instructions were submitted by the company touching this part of the case. In the form asked they were refused; but such refusal would not constitute ground for reversing the judgment, if the propositions they involved, so far as correct, were embraced by the charge. The jury were in. structed, upon the whole case, that the insured warranted the truth in all respects of each answer, statement, representation, and deciaration contained in the application, which was a part of the policy; that any inquiry as to their materiality or his good faith was removed, by the agreement of the parties, from the consideration of the court or jury; that the truth of each answer was an express condition to the existence of liability on the part of the con. pany; and that if the answers, or any of them, were, in fact, untrue, the contract was at an end, although the insured, in good faith, believed them to be true. Their attention was particularly called to the answer to the eighth question in the application, in which the insured, responding to the inquiry whether he bad had any other illness, local disease, or personal injury, stated nothing more than that “he had colic for one day, October, 1877; no recurrence; general health good." The court said: “Illness is a word which may include, properly, an attack of a less grave and serious character than a disease; an illness may be slight severe; in either case it is an illness.” Referring, also, to a question which required the insured to state any fact relating to his physical condition, personal or family history, or habits, not already disclosed, and with which the company ought to be made acquainted, the court, almost in the language of defendant's eighth request, charged the jury that if they believed, on the evidence, “that the trip to Europe advised by Dr. Baner, the illness in 1875, or the illness in 1876, or the suffering of several attacks of malarial fever, accompanied by cerebral engorgement, (if those attacks occurred, or either of them,) were facts relating to the physical condition and personal history of the insured of importance to the ascertainment of the condition of his health at the time of his application, the omission of those facts, or either of them, from the application avoids the policy, and the defendant is entitled to recover.” After reviewing all the evidence, the court concluded its charge by instructing the jury that, if they found*affirmatively that the insured “did not answer one of these questions truly, then there is nothing more for you to do except to find for the defendant; if you find affirmatively that he was guilty of concealment in his answer to the fifteenth question, then you will find for the defendant."
We are of opinion that the charge—the most important parts of which we have quoted—was not one of which the company had any reason to complain; and the plaintiff, having recovered a verdict, makes no objection to it. In reference to that portion of the charge referring to the statements in the certificate of Dr. Baner, made part of the proofs of loss, the point is made that the court erroneously instructed the jury that they could not, upon that certificate,-made without cross-examination and simply to inform the company of the death of the insured,-find as an affirmative fact that the malarial attacks therein referred to as a remote cause of death, existed. Without determining whether this certificate, so far as it assumes to state the causes of the death of the insured, was required by the contract as a condition of the plaintiff's right to sue on the policy, or whether, under the circumstances of this case, it was proof of all the facts stated in it, it is sufficient to say that the objection that the court in effect discredited that certificate as prima facie evidence of the facts stated, cannot be entertained. No one of the requests for instructions submitted by defendant covers the precise point now made, nor was any exception taken at the time to that part of the charge which, it is claimed,
refers to the certificate of the attending physician. The only exception taken by the defendant to the charge was “to the charge of the eighth proposition, as modified by the court and embraced in his general charge." The eighth proposition submitted by the defendant was given in the words already quoted from the charge, with the modification that the jury were to determine, on the evidence, whether the insured had had the before-mentioned attacks of malarial fever, accompanied by cerebral engorgement. That modification was entirely proper, since it was the province of the jury to determine the weight of the evidence. Cushman v. United States*Life Ins. Co. 70 N. Y. 77. If : the subsequent part of the charge, which is now referred to as discrediting Dr. Baner's certificate as evidence of the facts stated in it, was regarded at the trial as a modification of the defendant's eighth proposition, or as objectionable in itself, the exception taken should have been more specific. The attention of the court should have been called to the particular point by something more definite than the general exception taken. Beckwith v. Bean, 98 U. Š. 284; Lincoln v. Claflin, 7 Wall. 132; McNitt v. Turner, 16 Wall. 362; Beaver v. Taylor, 93 U. Š. 46.
No error was committed in overruling the instructions asked by the defendant, since whatever they contained that ought to have been approved, was embodied in the charge to the jury. We find no error in the record of which this court can take cognizance, and the judgment must be afirmed.
(112 U. S. 261) BOARD OF SUP'RS OF GRENADA Co. and others 0. BROWN and others.
(November 17, 1884.) 1. CONSTITUTIONAL LAW-CONSTRUCTION OF STATUTE.
That construction of a statute should be adopted which, without doing violence to the fair meaning of the words used, brings it into harmony with the constitu
tion. 2. SAME-MUNICIPAL SUBSCRIPTION TO RAILROAD Stock-LEGALIZING Act.
A municipal subscription to the stock of a railroad company, or in aid of the con. struction of a railroad, made without authority previously conferred, may be confirmed and legalized by subsequent legislative enactment, when legislation of that character is not prohibited by the constitution, and when that which was done would have been legal had it been done under legislative sanction previously given. In Error to the District Court of the United States for the Northern Dis. trict of Mississippi.
H. P. Branham, for plaintiffs in error. R. O. Reynolds, for defendants in error.
*HARLAN, J. This action was brought to recover the amount of certain bonds and interest coupons issued under date of May 1, 1872, in the name of Grenada county, Mississippi, by its board of supervisors, and made payable to the Vicksburg & Nashville Railroad Company or bearer, at its agency in the city of New York. Each bond, signed by the president of the board and countersigned by its clerk with his official seal affixed, recites that it is one of a series issued and delivered to the Vicksburg & Nashville Railroad Company by Grenada county, to meet and pay off the amount subscribed by the county to the capital stock of the railroad company aforesaid, “in pursuance of an act of the legislature of the state of Mississippi, entitled •An act to aid in the construction of the Grenada, Houston & Eastern Railroad,' now Vicksburg & Nashville Railroad, approved February 10, 1860, and of an act amendatory thereof, passed March 25, 1871, and in obedience to a vote of the people of said county at an election held in accordance with the provisions of said acts." The county disputes its liability on the bonds or coupons, although the plain. tiffs, who are defendants in error, became holders for value without notice of any defense except such as the law implies. The defense rests mainly on the ground that the subscription was made and the bonds issued without
previous legislative authority conferred in conformity with the constitution of Mississippi.
The history of the issue of these securities, as disclosed by legislative enactments, the proceedings of the board of supervisors of Grenada county, and the bill of exceptions, is substantially as will be now stated. The Grenada, Houston & Eastern Railroad Company was incorporated by an act approved February 6, 1860, with power to construct a railroad from Grenada, in Yallobusha county, to Houston, in the county of Chickasaw, thence eastwardly to the* Alabama line, and with authority to connect or consolidate with any other company upon such terms as might be mutually agreed upon, not inconsistent with the laws of the state. Laws Miss. 1859, 1860, pp. 394, 402. By the act approved February 10, 1860, the boards of police of Yallobusha, Calhoun, Chickasaw, and Monroe counties were authorized for their respective counties to subscribe, upon such terms as they saw proper, to the capital stock of the company in an amount not exceeding $200,000 for any one county, to be paid by taxation; provided a majority of the qualified electors voting at an election held for that purpose, upon due notice, should first assent thereto, in which event it was made the duty of the board to make the subscription. Id. 412. On the first day of December, 1869, a new constitution for Mississippi went into operation, article 12, § 14, of which declares that “the legislature shall not authorize any county, city, or town to become a stockholder in or lend its credit to any company, association, or corporation, unless twothirds of the qualified voters of such county, city, or town, at a special election or regular election to be held therein, shall assent thereto.” On the ninth of May, 1870, the county of Grenada was created out of parts of Yallobusha, Tallahatchie, Carroll, and Choctaw counties. Laws Miss. 1870,
By an act approved March 25, 1871, amending the preceding statutes, it was declared, among other things, that the act of February 10, 1860, should apply, in all its provisions, to Grenada county and its officers; and it was made the duty of the board of supervisors of that and other counties along the line of the Grenada, Houston & Eastern Railroad, upon the petition of 25 or more citizens, to cause an election to be held in their respective counties to take the sense of the legal voters, whether a sum not exceeding $200,000 to each county shall be subscribed to the capital stock of said railroad company, to be paid by taxation; also, that whenever, in the act of February 10, 1860, any duty is required of, or authorized to be performed by, the boards of police, or the president thereof, of any of the counties therein named, the same should apply to the board of supervisors of the different counties and to the president thereof; further, that "all such elections when held shall be conducted in all things as required in the act of which this is amendatory, and of the constitution and laws of this state in force at the time so held.” Section 1. The fourth section authorizes the board of supervisors of any county voting the tax to issue bonds, maturing at such times, not beyond 10 years, and for such sums, as the board deemed necessary, to pay off the subscriptions of said counties, respectively, for capital stock in the Grenada, Houston & Eastern Railroad, the bonds to be signed by the president of the board of supervisors issuing the same, and made payable to the company and their successors and assigns. The sixth section provides that bonds may be issued with interest coupons attached, and, when issued, paid over and delivered to the railroad company in satisfaction of the subscription to the extent of the principal of the bonds; the board taking from the company certificates of stock for the shares paid for, and the stock to be deemed the property of the municipality paying for it.
Under an order made by the board of supervisors of Grenada, in conformity with the petition of more than 25 of its citizens, the question was submitted to the qualified voters, at a general election held November 7, 1871, whether the board, by its president, should subscribe, in behalf of that county, $50,000 to the capital stock of the Grenada, Houston & Eastern Railroad Conn.
pany, and a like sum to the capital stock of the “Vicksburg & Grenada Railroad Company,”—each subscription to be met and paid off in eight annual installments, with 8 per cent. interest upon the amount due January 1, 1873, or from the date of the county bonds, if any should be issued, payable annually by taxation upon the property of the tax-payers. The board, at its De cember term, 1871, caused it to be entered upon its records that the election had been duly advertised and regularly held according to law; that “a consti. tutional majority of two-thirds of the legal and registered voters of said county were cast,” for each subscription; and that the board, hy its president, "subscribe for $50,000 each of the capital stock of the Grenada, Houston & Eastern Railroad Company and of the Vicksburg & Grenada Railroad Company; for and on behalf of Grenada county, to be met and paid by taxation as aforesaid," etc. When the election was held, there was no such corporation as the Vicksburg & Grenada Railroad Company; but the bill of exceptionssetting out what the parties agree are the facts established by the evidencestates that, “for a long tiine previous to said vote, a scheme had been agitated in said county for such a railroad, with its termini at Vicksburg and Grenada, as well as for the construction of the Grenada, Houston & Eastern Railroad; * and on the third day of January, 1872, the projectors and managers of the railroad, so designated and intended in said vote, were incorporated by an act of the legislature entitled 'An act to incorporate the Vicksburg, Yazoo Valley & Grenada Railroad Company.'
By an act approved January 27, 1872, the Grenada, Houston & Eastern Railroad Company was authorized to extend their road from Grenada via Yazoo City to Vicksburg, thus enabling it to cover the route proposed to be occupied by the so-called Vicksburg & Grenada Railroad, or the Vicksburg, Yazoo Valley & Grenada Railroad. By the same act the name of the Grenada, Houston & Eastern Railroad Company was changed to that of the Vicksburg & Nashville Railroad Company, giving the company all the rights by the lat. ter name which it had under its old name. Its fourth section is as follows: “Sec. 4. Be it further enacted, that, inasmuch as the question of subscription or no subscription for fifty thousand dollars to aid in the construction of a railroad from Vicksburg to Grenada, in this state, was, by the board of supervisors of Grenada county, submitted to the qualified voters of Grenada county, and the same was sustained by a majority of two-thirds of the quali. fied voters of said county at a general election held therein on the seventh day of November, 1871, it shall and may be lawful for the board of directors of the Vicksburg & Nashville Railroad Company, by resolution made and entered in the minutes of said board at a regular meeting thereof, sanctioned by a majority of said board of directors, to accept all the provisions of this act, and adopt, as a part and portion of the Vicksburg & Nashville Railroad, the ex-; tension specified in this act from Grenada to Vicksburg; and when, after such acceptance and adoption, the said so-called Vicksburg & Grenada Rail. road shall form and constitute a part and portion of the Vicksburg & Nashvilie Railroad, and shall be constructed, owned, and held by the Vicksburg & Nashville Railroad Company; and it shall be lawful for, and it is hereby made the duty of, the board of supervisors of Grenada county, through the presi. dent of said board, upon the application of the president or other authorized agent of the Vicksburg & Nashville Railroad Company, to subscribe for fifty thousand dollars of the capital stock of the Vicksburg & Nashville Railroad Company, based upon the submission to and the approval of the vote of twothirds of the qualified voters of said county, which is hereby ratified and confirmed to the Vicksburg & Nashville Railroad Company so heretofore had on behalf of the Vicksburg & Grenada Railroad as aforesaid, and bonds of said county to secure the payment of said subscription for the stock and interest thereon, and also certificates of stock in said company shall be used as ir other cases provided for in this act."
On the fifth of March, 1872, the Vicksburg, Yazoo Valley & Grenada Railroad Company was consolidated with the Vicksburg & Nashville Railroad Com. pany, the articles of consolidation binding the consolidated company-which retained the name of the Vicksburg & Nashville Railroad Company—among other things, to construct the contemplated road from Vicksburg to Grenada. Subsequently, in the year 1872, the board of supervisors, by its president, executed and delivered to the Vicksburg & Nashville Railroad Company bonds of the county (those in suit being a part of them) in payment of the subscrip. tions which had been voted at the election in November, 1871, the county receiving certificates of stock therefor. In 1872 and 1873 the county assessed and collected taxes to pay the coupons maturing at these respective periods on all the bonds in suit. The coupons for those years have been fully paid. The county, by its duly-accredited agent, was represented at all the stockholders' meetings of the company, and voted a stock subscription of $100,000. There has been no meeting of stockholders since 1874, nor of the directors since July 6, 1875. About five miles of the Vicksburg & Nashville Railroad westward from Okolona was graded and ironed. The iron so laid was purchased from plaintiffs, and they received in payment the bonds in suit.
Under the acts in question, assuming them to be constitutional, the county had authority, upon certain conditions, to make a subscription to the capital stock of the Grenada, Houston & Eastern Railroad Company, now the Vicksburg & Nashville Railroad Company, and its board of supervisors was invested with power to determine whether those conditions were performed, and, upon their being performed, to issue bonds in payment of such subscription. According to the settled doctrines of this court, the county is estopped, as against the plaintiffs, to say that the conditions were not duly performed; for the recitals in the bonds import that they were issued in pursuance of the acts of 1860 and 1871, and in obedience to a vote at an election held in accordance with the provisions of said acts. Coloma v. Eaves, 92 U. S. 484; Buchanan v. Litchfield, 102 U. S. 278; Northern Bank v. Porter Tp. 110 U.S. 617; S. C. 4 Sup. Cr. REP. 254; Otoe Co. v. Baldwin, 111 U. S. 1; S. O. 4 SUP. Cr. REP. 265. Upon this general question there seems to be no disagreement between this court and the supreme court of Mississippi. City of Vicksburg v. Lombard, 51 Miss. 126; Cutler v. Board Sup'rs, 56 Miss. 123. But it is contended that the act of March 25, 1871, in violation of the constitution of Mississippi, authorized—by its reference to the act of February 10, 1860—a subscription upon the assent thereto of a bare majority of its qualified electors voting, and, consequently, the recitals in the bonds do not protect even a bona fide holder. This is not, in our judgment, a proper interpretation of that act. Its express requirement is that elections to determine the question of subscriptions be held and conducted, in all things, as required by the act of which it is amendatory, and by “the constitution and laws of this state in force at the time so held. As Grenada county came into existence after the constitution of 1869 went into operation, it could not, even under legislative sanction, make a valid subscription to the stock of a corporation unless two-thirds of its qualified voters, at a special or general election, assented thereto. That the legislature, when passing the act of 1871, had in mind the constitutional provision relating to municipal subscriptions to the stock of corporations, is plain from the second section of the act, which authorizes certain incorporated towns, including the town of Grenada, to subscribe to the stock of the Grenada, Houston & Eastern Railroad Company, when such subscription should be approved by "a constitutional majority of two-thirds of the votes polled at an election regularly held," La provision which this court adjudged, in Carroll Co. v. Smith, 111 U. S. 556, S. C. 4 SUP. Cr. REP. 539, to be consistent with the constitution of Mississippi. It cannot be supposed that the legislature intended to invest the town of Gre