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scription, and the duty of issuing the bonds. They were equally charged with the duty of ascertaining the fact of the assent. The record evidence of their proceedings shows that their order for the election was made 33 days before the election was to be held; that they met “pursuant to law for the purpose of canvassing returns of the election;" that they discharged that duty and certified that there was a majority of votes in favor of the proposition; that in November, 1869, they resolved that, “in accordance with the vote, heretofore had and taken, of the electors of said county to that effect," they subscribed for the stock; and that in July, 1870, in their order authorizing the bonds to be delivered by Joy to the company, they recited that the bonds were issued “according to the provisions of the vote of the electors of said county." In view of all this, the statement by the commissioners, in the bond, that it is issued “in pursuance to the vote of the electors of Anderson county, of September 13, 1869,” is equivalent to a statement that “the vote" was a vote lawful and regular in form, and such as the law then in force required, in respect to prior notice. The case is, therefore, brought within the cases, of which there is a long line in this court, illustrated by Town of Coloma v. Eaves, 92 U. S. 484, 491, and which hold, in the language of that case, that "where legislative authority has been given to a municipality or to its officers to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with the power to decide whether the condition precedent has been complied with, their recital that it has been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunals." This doctrine is adhered to by this court. Dixon Co. v. Field, 111 U. S. 83, 93, 94; S. C. 4 Sup. Cr. REP. 315.
In the present case, there was nothing shown to rebut the presumption arising from the production of the coupons, that the plaintiff was prima facie the holder of them for value. The defendant did not show any want, or failure, or illegality, of consideration. By the passage of the first resolution of November 5, 1869, the board thereby subscribed for the stock. The transactions between the board, on the one side, and Mr. Joy, as president of the company, and the company, on the other side, before and at the time the bonds were finally delivered to the company, were an acceptance of the subscription. The statute (section 53) provided that, on the making of the subscription, the bonds should be issued to the company, to pay for the subscription and for the stock agreed to be taken. When the bonds were delivered to the company the transaction was complete, and the bonds, as they afterwards passed to bona fide holders, passed free from any impairment by reason of any dealing by the board with the stock subscribed for, to which the county became entitled by the issuing and delivery of the bonds. The board may have committed an improper act in parting with the stock, but that is no concern of a bona fide holder of the bonds or coupons.
It is further to be said that if there was in fact any want of proper notice of the election, the omission was only an irregularity in the exercise of an express power to issue the bonds,-an irregularity in respect to a step forming part of preliminary conditions,--and that the failure of the municipality and of the tax-payers to enjoin the issue or use of the bonds, during the long period from the day of the election, September 13, 1869, until the bonds were registered in March, 1872, when they still belonged to and were in the hands of the company, coupled with the annual payment by the county, for 10 years, of the interest on the bonds, are sufficient grounds for holding that the municipality is estopped from defending on the ground of such non-compliance with a condition precedent as is set up in this case, after the bonds have been
negotiated for value by the company. The record of the proceedings of the board shows that a tax was levied to pay the interest which fell due January 1, 1871, while the company still held the bonds.
There was no error in overruling the demurrer to the evidence which the plaintiff had given to sustain his case at the time the demurrer was interposed, or in overruling the motion to instruct the jury at that time that upon the pleadings and proofs he was not entitled to recover. Upon such evidence, all of which was record evidence, admitted without objection, and involving no disputed question of fact, but only matters of law, the plaintiff was entitled to recover, as has been shown. For the same reasons, it was not error to instruct the jury, at the close of the trial, to find a verdict for the plaintiff. The only defenses set up in the answer were those as to the notice of the election and as to the transfer of the stock to Joy. The first resolved itself into a question of law, and the latter was immaterial. The defendant did not ask to go to the jury on any question of fact, and if a verdict had been rendered for the defendant, it would have been the duty of the court, under the views of the law above laid down, to set it aside.
In Pleasants v. Fant, 22 Wall. 116, 120, this court said, by Mr. Justice MILLER, citing Improvement Co. v. Munson, 14 Wall. 448, that “in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof imposed." Those cases were cited in Herbert v. Butler, 97 U. S. 319, 320, and this court there said, by Mr. Justice BRADLEY: Although there may be some evidence in favor of a party, yet if it is insufficient to sustain a verdict, so that one based thereon would be set aside, the court is not bound to submit the case to the jury, but may direct them what verdict to render.” It is true that in the above cases the verdict was directed for the defendant. But where the question, after all the evidence is in, is one entirely of law, a verdict may, at the trial, be directed for the plaintiff, and where the bill of exceptions, as here, sets forth all the evidence in the case, this court, if concurring with the court below in its views on the questions of law presented by the bill of exceptions and the record, will atfirm the judgment.
In Bevans v. U.S. 13 Wall. 56, a verdict was directed for the United States, in a suit by them on the official bond of a public officer, and the ruling was sustained, the evidence for the plaintiff being all of it documentary; this court saying, by Mr. Justice STRONG: “The instruction was, therefore, in accordance with the legal effect of the evidence, and there were no disputed facts upon which the jury could pass.” The same rule was applied in Walbrun v. Babbitt, 16 Wall. 577, to the direction of a verdict for the plaintiff, after oral evidence which this court states "was received without objection, and about which there is no controversy," and on which it says it bases its decision. That was a suit to recover the value of goods transferred in fraud of the bankrupt law.
In Hendrick v. Lindsay, 93 U.S. 143, the circuit court directed the jury to find for the plaintiffs, in an action on a bond of indemnity, the plaintiff's evidence being all of it documentary, and the defendant giving no evidence. This court said, by Mr. Justice Davis: “There were no disputed facts in this case for the jury to pass upon. After the plaintiffs had rested their case, the counsel for the defendant announced that he had no evidence to offer; and thereupon the court, considering that the legal effect of the evidence war. ranted a verdict for the plaintiffs, told the jury, in an absolute form, to find for them. This was correct practice where there was no evidence at all to contradict or vary the case made by the plaintiffs; and the only question for review here is whether or not the court mistook the legal effect of the evi. dence."
In Arthur v. Morgan, at this term, (112 U. S. 495; S. C. ante, 241,) after oral evidence for the plaintiff, there being no evidence for the defendant, the court below had directed a verdict for the plaintiff for the recovery of excess. ive duties paid under protest, to which direction the defendant had excepted, and this court, treating the question as one of law, as to the proper rate of duty, on undisputed facts, affirmed the judgment.
These decisions are controlling on the point. Judgment afirmed.
(113 U. S. 9)
HEAD 0. AMOSKEAG MANUF'G CO.
(January 5, 1885.) CONSTITUTIONAL LAW-DUE PROCESS OF LAW-DEPRIVATION OF PROPERTY-STATE STAT
A statute of a state, authorizing any person to erect and maintain on his own land a water-mill and mill-damn upon and across any stream not navigable, paying to the owners of lands flowed damages assessed in a judicial proceeding, does not deprive them of their property without due process of law, in violation of the four: teenth amendment of the constitution of the United States. In Error to the Supreme Court of the State of New Hampshire.
C. R. Morrison, for plaintiff in error. Geo. F. Hoar and B. Wadleigh, for defendant in error.
Gray, J. This was a writ of error to reverse a judgment of the supremo court of the state of New Hampshire against the plaintiff in error, upon a petition filed by the defendant in error (a corporation established by the laws of New Hampshire for the manufacture of cotton, woolen, iron, and other materials) for the assessment of damages for the flowing of his land by its mill-dam at Amoskeag falls on the Merrimack river, under the general mill act of that state of 1868, c. 20, which is copied in the margin.
•In the petition filed in the state court, the Amoskeag Manufacturing Company alleged that it had been authorized by its charter to purchase and hold real estate, and to erect thereon such dams, canals, mills, buildings, machines, and works as it might deem necessary or useful in carrying on its manufactures and business; that it had purchased the land on both sides of the Mer
1 AN ACT FOR THE ENCOURAGEMENT OF MANUFACTURES. Section 1. Any person, or any corporation authorized by its charter so to do, may erect and maintain on his or its own land, or upon land of another with his consent, a water-mill, and dam to raise the water for working it, or for creating a reservoir of water, and for equalizing the flow of the same, for its use and of mills below, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, hereinafter expressed.
Sec. 2. If the land of any person shall be overflowed, drained, or otherwise injured by the use of such dam, and said damage or injury shall not, within thirty days after due notice thereof, be satisfactorily adjusted by the party erecting or maintaining said dam, either party may apply by petition to the supreme judicial court, in the county or coun: ties where such damage or grievance arises, to have the damage that may have been or may be done thereby, assessed; which petition shall set out the title and description of the premises damaged, the right by reason whereof said grievance arises, the location of the dam, and extent of the damages that may be occasioned thereby; and said court, after reasonable notice to all persons interested, shall, unless the parties agree upon the judgment that shall be rendered, refer said petition to a committee of three disinterested persons, to be appointed by said court, to determine in relation to the matters set forth therein.
Sec. 3. The committee shall give such notice to the parties as shall be ordered by said court; shall hear the parties and view the premises; and, if they shall be of opinion that the flowing or draining of said land, to the depth and extent that the same may or can be flowed by said dam, is or may be of public use or benefit to the people of this state, and that the game is necessary for the use of the mill or mills for which said dam was designed, they shall estimate the damages, and make report to the said court at the next term thereof after said view and estimate. Upon the return of the report of said
rimack river at Amoskeag falls, including the river and falls, and had there built mills, dug canals, and established works, at the cost of several millions of dol and, for the purpose of making the whole power of the river at the falls available for the use of those mills, had constructed a dam across the river; that the construction of the mills and dam, to raise the water for working the mills, for creating a reservoir of water, and for equalizing its flow, was of public use and benefit to the people of the state, and necessary for the use of the mills for which it was designed; and that Head, the owner of a tract of land described in the petition, and bounded by the river, claimed damages for the overflowing thereof by the dam, which the corporation had been unable satisfactorily to adjust; and prayed that it might be determined whether the construction of the mills and dam, and the tlowing, if any, of Head's land to the depth and extent that it might or could be flowed thereby, were or might be of public use or benefit to the people of the state, and whether they were necessary for the mills, and that damages, past or future, to the land by the construction of the dam might be assessed according to the statute.
At successive stages of the proceedings, by demurrer, by request to the court after the introduction of the evidence upon a trial by jury, and by motion in arrest of judgment, Head objected that the statute was unconstitutional, and that the petition could not be maintained, because they contemplated the taking of his property for private use, in violation of the fourteenth amendment of the constitution of the United States, which declares that no state shall deprive any person of property without due process of law, nor deny to any within its jurisdiction the equal protection of the laws; as well as in violation of the constitution of the state, the bill of rights of which declares that all nen have certain natural, essential, and inherent rights, among which are the acquiring, possessing and protecting property, and that every member of the community has a right to be protected in the enjoyment of his property. His objections were overruled by the highest court of New Hampshire, and final judgment was entered, adjudging that the facts alleged in the petition were trne, and that, upon payment or tender of the damages assessed by the verdict, with interest, and 50 per cent. added, making in all the sum of $572.43, the company have the right to erect and
committee, any person interested therein may object to the acceptance of the same for any irregularity or improper conduct of said committee; and said court may set aside said report for any just and reasonable cause, and, if required, shall inquire for itself whether the erection of said dam is of public use or benefit, any finding of the com. mittee upon that point notwithstanding; and, if the court shall be of opinion that the erection of said dam is not of public use or benefit, the petition shall be dismissed. But if the report shall be accepted and established, the court shall render judgment thereon, after adding fifty per cent. to the estimate of damage; which judgment shall be final, and execution shall issue thereon. Before the reference of such petition to the com• mittee, if either party shall so elect, said court shall direct an issue to the jury, to try the facts alleged in the said petition, and assess the damages; and judgment rendered on the verdict of such jury, with fifty per cent. added, shall be final, and said court may award costs to either party at its discretion.
Sec. 4. No person or corporation shall derive any title from said proceedings, or be discharged from any liability in relation to said premises, until he or it has paid or tendered to the person aggrieved or damaged the amount of such adverse judgment.
Sec. 5. This act shall in no way affect existing suits, nor any mill of other persons lawfully existing on the same stream, nor any mill-site or mill privilege of other per. sons on which a mill-dam has been lawfully erected and used, nor the right of any owner of such mill, mill-site, or mill privilege, unless the right to maintain on such last-mentioned site or privilege shall have been lost or defeated by abandonment or otherwise; neither shall it affect the right of a town in any bighway or bridge which said town may by law be liable to keep in repair: provided, however, that the provis ions of this act shall not be applicable to any navigable waters in this state,
Sec. 6. This act shall take effect from and after its passage.
maintain the dam, and to flow his land forever to the depth and extent to which it might or could be flowed or injured thereby. 56 N. H. 386, and 59 N. H. 332, 563.
* The position that the plaintiff in error has been denied the equal protection of the laws, was not insisted upon at the argument. The single question presented for decision is whether he has been deprived of his property without due process of law, in violation of the fourteenth amendment of the constitution of the United States. It is only as bearing upon that question that this court, upon a writ of error to a state court, has jurisdiction to consider whether the statute conforms to the constitution of the state. The charter of the Amoskeag Manufacturing Company, which authorized it to erect and maintain its mills and dam, gave it no right to flow the lands of others. Eastman v. Amoskeag Manuf'g Co. 44 N. H. 143. The proceedings in the state court were had under the general mill act of New Hampshire, which enacts that any person, or any corporation authorized by its charter so to do, inay erect or maintain on his or its own land a water mill and mill-dam upon any stream not navigable, paying to the owners of lands flowed the damages which, upon a petition filed in court by either party, may be assessed, by a comunittee or by a jury, for the flowing of the lands to the depth and extent to which they may or can be flowed by the dam. N. H. St. 1868, c. 20.
The plaintiff in error contends that his property has been taken by the state of New Hampshire for private use, and that any taking of private property for private use is without due process of law. The defendant in error contends that the raising of a water-power upon a running stream for manufacturing purposes is a public use; that the statute is a constitutional regulation of the rights of riparian owners; and that the remedy given by the statute is due process of law. General mill acts exist in a great majority of the states of the union. Such acts, authorizing lands to be taken or towed in invitum, for the erection and maintenance of mills, existed in Virginia, Maryland, Delaware, and North Carolina, as well as in Massachusetts, New Ilampshire, and Rhode Island, before the declaration of independence; and exist at this day in each of these states, except Maryland, where they were repealed in 1832. One passed in North Carolina, in 1777, has remained upon the statute book of Tennessee. They were enacted in Maine, Kentucky, Missouri, and Arkansas soon after their admission into the union. They were passed in Indiana, Illinois, Michigan, Wisconsin, Iowa, Nebraska, Minnesota, Mississippi, Alabama, and Florida while they were yet territories, and re-enacted after they became states. They were also enacted in Pennsylvania in 1803, in Connecticut in 1864, and more recently in Vermont, Kansas, Ore gon, West Virginia, and Georgia, but were afterwards repealed in Georgia. The principal statutes of the several states are collected in the margin.' *In most of those states their validity has been assumed without dispute,
For convenience of reference, the names of the states are arranged in alphabetical order. The territorial acts of Indiana and Illinois not being in the library of congress, the citations of those acts are taken from Gould, Waters, 8 616, and notes.
ALABAMA. Terr. St. 1811, 1812, Toulmin's Dig. 1823, tit. 45; Clay's Dig. 1843, p. 376 ; Code 1852, 22 2089-2115; Rev. Code 1867, 22 2481-2508; Code 1876, 72 3555-3579.
ARKANSAS. Rev. St. 1837, c. 98; Dig. 1846, c. 107; Dig. 1858, c. 114; Gantt's Dig. 1873, c. 95. CONNECTICUT. St. 1864, c. 26; Gen. St. 1866, tit. 1, c. 16; Gen. St. 1876, tit. 19, a 17,
DELAWARE. Prov. St. 1719, 1760, 1773, 1 Laws 1700-97, p. 535, app. pp. 63, 72; Rov. St. 1852, c. 61 ; St. 1859, c. 538; Rev. Code 1874, c. 61.
FLORIDA. Terr. St. 1827, 1829, Duval's Compilation, pp. 61–55; Thompson's Dig. 1847, c. 10; McClellan's Dig. 1881, c. 152.
GEORGIA. St. 1869, c. 98. Repealed by Code of 1882, & 3018.
ILLINOIS. 2 Terr. Laws 1815, p. 456; St. 1819, p. 265; Rev. Code 1827, p. 297; Rey. St. 1845, c. 71 ; Rev. St. 1869, c. 71; Rev. St. 1874, c. 92; Rev. St. 1830, c. 92.
INDIANA. Terr. St. 1807, p. 194 ; Rev. Laws 1824, c. 117; Rev. Laws 1831, c. 1; Rev.