Statement of the Case. ratification or rejection of the action of the board of mayor and aldermen of the Town of Milan, in regard to the issuance of the $12,000 in bonds to the Mississippi Central Railroad Company upon certain conditions. The returns of said election show a vote of 117 for subscription and 2 no subscription;" "W. M. McCall and W. H. Algea were appointed a committee to correspond with Judge Milton Brown, of Jackson, Tenn., in regard to the proposition of Milan corporation in regard to issuing the $12,000 in bonds to the Mississippi Central Railroad Company;" that the foregoing entries constitute all the proceedings in regard to the subscription of the $12,000 in bonds, and in regard to the election held for ratifying or rejecting the action of the board in directing the issue of the bonds; that there was nothing to show the manner in which the election was held, or by whom the returns were made, or that the required number of votes was polled in favor of the proposition, as required by law; that the order of the board directing the issue of the bonds was without authority, (1) because the order was adopted and the election ordered without any application in writing, or otherwise, to the board for the purpose, as required by section 1144 of the Code of Tennessee; (2) because the election was ordered to be held, and was held, by the town marshal or constable, and not by the sheriff of the county of Gibson, as required by section 1143 of the Code; (3) because the marshal, after the polls were opened, and before they were closed, suffered the box in which the votes were deposited to be removed from the place in the town fixed for receiving ballots, to various other places in the town, and put into the ballot-box votes offered at such places not fixed by law as a place of voting, and without authority; and (4) because, at the time, the entire line of the contemplated road in which the stock was to be taken had not been surveyed by a competent engineer and substantially located by designating the termini and approximating the general direction of the road, and no estimate of the grading, embankment, and masonry had been made by any one authorized to make it, and no such estimate as was required by section 1145 of the Code had ever been filed; that, at the time of ordering Statement of the Case. and holding such election, the population of Milan was less than 1000 inhabitants, and, therefore, it was not authorized by law to take stock in railroads, issue bonds, or levy a tax for their payment; that, on the 23d of June, 1873, the said board made the following order: "On motion of W. M. McCall, the mayor was instructed to issue twelve bonds to the said Mississippi Central Railroad Company, of the denomination of $1000 each, with interest from date of issuance at the rate of 7 per cent per annum;" that, thereupon, said mayor prepared twelve bonds, designated as the "Bonds of the Town of Milan," of $1000 each, payable to the Mississippi Central Railroad Company, or bearer, twenty years from the date of issue, and dated July 1, 1873, bearing 7 per cent interest per annum, to which bonds were attached coupons for the payment of such interest on the 1st of July of each year the bonds had to run, each one of the bonds and coupons being signed by A. Jordan, mayor and recorder, and being made payable in the city of New York; that, on the 4th of August, 1883, the bonds and coupons were delivered to the Mississippi Central Railroad Company, through one Hall, its treasurer and cashier; that the bonds, with the coupons, one year's interest being due on July 1, 1874, were still in the possession of Hall, or some other officer or agent of the company, and the company was attempting to collect the interest due on the bonds; that the town was not bound to pay the bonds, their issue being made contrary to law, but, if the company should sell them to innocent purchasers, the town would be bound in law to pay them; that the officers of the company would sell and assign the bonds, with a view to making the town liable, if they had not already done so in part; and that they were attempting to negotiate them, and would do so unless restrained by injunction. The bill prayed that the company and its officers be enjoined perpetually from transferring or disposing of the bonds and coupons, and from collecting the same; and that they be delivered up and cancelled. On the 10th of July, 1874, (the same day on which the bill was filed,) a temporary injunction, in accordance with its prayer, was issued. The defendants thereafter filed a deVOL. CXXVII-10 Statement of the Case. murrer to the bill, and, on the 9th of January, 1875, the following final decree was entered in the suit: "A. Jordan, W. I. House, J. Q. Boyd, M. L. Baird, W. Y. Williamson, S. F. Rankin, et als., Mayor and Aldermen of the Town of Milan v. "The Mississippi Central Railroad Company, H. S. McComb, and James Hall. "Be it remembered, that this cause, this 9th of January, 1875, came on to be heard and was heard before Hon. John Somers, chancellor, etc.; and, it appearing that this suit had been settled by the following agreement, to wit: 'Whereas the Board of Mayor and Aldermen of the Town of Milan, in Gibson County, Tennessee, having filed a bill in the Chancery Court at Humboldt against the Mississippi Central Railroad Company, to enjoin the collection of certain bonds issued by the Town of Milan to aid in the construction of said road, to wit, twelve bonds of $1000 each, with coupons attached, and said suit is now pending in said court; and whereas it is agreed by and between said corporation of the Town of Milan and the New Orleans, St. Louis and Chicago Railroad Company, into which said Mississippi Central R. R. Co. has been merged by contract of consolidation between said lastnamed company and the New Orleans, Jackson and Great Northern R. R. Co., that said suit be compromised as follows, to wit: The said New Orleans, St. Louis and Chicago R. R. Co. is to issue to the Town of Milan certificates of stock in the sum of $500 each, dollar for dollar, for said bonds, and the said Town of Milan on their part agrees, on receipt of said stock, to let a decree be entered in said cause in favor of the validity of said bonds, which are to be redelivered, with the seal of the town affixed, and the costs of said suit to be paid by the said New Orleans, St. Louis and Chicago R. R. Co. "In testimony whereof we herewith sign our names and affix our official seal, this December 18th, 1874. "A. JORDAN, Mayor. "2d Vice-President N. O., St. Louis & C. R. R. Co.' Statement of the Case. "In pursuance of this agreement, and by consent of the parties, it is ordered, adjudged, and decreed, that the New Orleans, St. Louis and Chicago R. R. Co. shall issue to the Town of Milan certificates of stock in said company, in sums of $500 each, dollar for dollar, for said twelve bonds of $1000 each, referred to in the bill; and it is further ordered, adjudged, and decreed, that, on the presentation of these certificates of stock, the Town of Milan shall have the corporate seal of said town affixed to each of said twelve bonds, and delivered to H. S. McComb, to whom they rightfully belong, or his authorized agent, and said bonds and coupons attached are declared to be valid and binding on said town and its authorities. It is, by consent, further ordered, adjudged, and decreed, that the injunction be dissolved, the demurrer herein filed be, and the same is hereby, overruled, and this decree is declared a final settlement of the right of the parties; the New Orleans, St. Louis and Chicago Railroad Company to pay the costs, and this case only retained on the docket so far as is necessary to enforce the final execution of this decree." It was further agreed by said stipulation, that the records of the town were destroyed by fire in 1879; that no census authorized by law, of the town, had been taken before 1880, when the population was ascertained to be 1600; that the railroad was not completed to the town until after July, 1873; that, after the final decree in the Chancery Court, the plaintiffs became the owners of the bonds and the coupons attached, purchasing the same for value and before they were due; and that, in the proposition submitted to the voters of the town, the question of subscribing $12,000 to the stock of the railroad company, payable in the bonds, "was also submitted in one question and at one and the same time, and was so approved by the requisite majority." The bill of exceptions stated that the plaintiffs offered in evidence the above named record of the Chancery Court at Humboldt, found in the stipulation; that the defendant, waiving all other objections, objected to the same because the record showed upon its face that it was not binding in law upon the town as a matter of adjudication, and, therefore, did Citations for Plaintiffs in Error. not sustain the replication to the plea; that the court sustained the objection and the plaintiff excepted; and that the court found, as one of the facts to support its judgment, that, at the time the bonds and coupons were issued, the town did not contain 1000 inhabitants. The court found that the facts and the law were with the defendant, and rendered a judgment in its favor, for the costs of the suit, to review which the plaintiffs have brought a writ of error. The opinion of the Circuit Court is reported in 21 Fed. Rep. 842. Mr. Holmes Cummins and Mr. J. B. Henderson for plaintiffs in error cited: Humboldt Township v. Long, 92 U. S. 642; Marcy v. Oswego, 92 U. S. 637; Moultrie County v. Rockingham Savings Bank, 92 U. S. 631; Walnut Township v. Wade, 103 U. S. 683; Oregon v. Jennings, 119 U. S. 74, 95; Pana v. Bowler, 107 U. S. 529; Harter v. Kernochan, 103 U. S. 562; Anthony v. Jasper County, 101 U. S. 693; Dixon County v. Field, 111 U. S. 83; Buchanan v. Litchfield, 102 U. S. 278; Northern Bank v. Porter Township, 110 U. S. 608; Lynde v. The County, 16 Wall. 6; Commissioners v. January, 94 U. S. 202; Coloma v. Eaves, 92 U. S. 484; Commissioners v. Bolles, 94 U. S. 104; County of Warren v. Marcy, 97 U. S. 96; Johnson v. Stark County, 24 Illinois, 75; Clay v. Hawkin's County Justices, 5 Lea, 137; Meyer v. Muscatine, 1 Wall. 384; Flagg v. Palmyra, 33 Missouri, 440; Supervisors v. Galbraith, 99 U. S. 214; Milan v. Tennessee Central Railroad, 11 Lea, 329; Adams v. Memphis & Little Rock Railroad Co., 2 Coldwell, 645; Louisville & Nashville Railroad v. Tennessee, 8 Heiskell, 663, 780; McCallie v. Chattanooga, 3 Head, 317; Seybert v. Pittsburgh, 1 Wall. 272; Nichol v. Nashville, 9 Humphrey, 250; Gifford v. Thorn, 9 N. J. Eq. (1 Stockton) 702; Green v. Hamilton, 16 Maryland, 319; Olcott v. Supervisors, 16 Wall. 678; Ohio Life Ins. Co. v. Debolt, 16 How. 416, 432; The City v. Lamson, 9 Wall. 477, 485; Douglass v. County of Pike, 101 U. S. 677; Taylor V. Ypsilanti, 105 U. S. 60; New Buffalo v. Iron Company, 105 U. S. 73; Corpenning v. Kincaid, 82 Nor. Car. 202; Wood |