208
FEDERAL REPORTER.
posed constitution or amendment was ratified or not by the people of the state, and the jUdicial power has followed its decision." On the point of the authority in the constitution for the federal courts to entertain ju'risdiction in this class of cases, Mr. Justice WOODBURY, who agreed with the opinion of the court on this branch of the case, says: "Again, the constitution of the United States enumerates specially the cases over which its judiciary is to have cognizance, but nowhere ineludes controversies between the people of a state as to the formation or change of their oonstitutions." The case of Luther v. Borden is still the law of the federal courts, and it has been followed by the supreme court wherever similar· questions have arisen. White v. Hart, 13 Wall. 646; Georfiia v. Stanton, 6 Wall. 50. . In this case the law of the state has provided (act March 10,1886, c. 550, Pub. Laws) that the question of the adoption of this amendment should be submitted to the people, that the ballots should be counted .by the governor l secretary of state l and attorney general, and the result authoritatively announced by the governor by proclamation. So far as . the federal courts are concerned, I think that the determination made by the state officers, acting under and in pursuance of this provision, is toM taken as the voice of the people of Rhode Island on the question whethe:r :the amendment has· or has not been adopted. Further questions might arise if the supreme court of the state should at any time decide to'the contrary, but with these questions we have nothing to do in the present case. It is sufficient now to say that since the result of the vote on amendment has been ascertained by the authority appointed for that purpose by the law of the statej and no other authority or department of the state government has spoken to the contrary, it seems clear to me that the federal government is to take the result as announced by the governor as a final statement of the fact in the case. I am of opinion, both upon reason and authority, that this court has no lawful power to inquire into the validity of artiole 5 of amendments to the constitution of Rhode Island, and therefore judgment must be entered for the defendant.' Judgment for defendant.
HILL t1. SCOTLA;Np CoUNTY.
(Oircuit Oourt, E. D. Mis8ouri. 'N, D. March 1>,1888.) 1. COiJNTIES-LuBILITIES AND INDEBTlilDNESS-BoNDS-BoNA FIDE HOLDER.
2.
SAME-PURCHASER OF BONA FIDE HOLDER.
A purchaser from an innocent holder of negotiable bonds of a county, issued under proper authority in subscription for. stock of a railroad corporation, call recover thereon against the county, even though he purchased them with the.pendencJ:of a suit to test the validity of such bonds, in which they· were adJudged· vOId.
HILL
v.
SCOTLAND COUNTY.
209
At Law. F. T. Hughes, for plaintiff. H. A. Cunningham, for defendant. THA'V....,tt, J. This is a suit on 46 coupons clipped from 40 bonds of series of 200 bonds of the denomination of $1,000 each, alleged to have been issued by Scotland county to the Missouri, Iowa & Nebraska Railroad Company in payment for stock of that oorporation subscribed in 1870. By stipulation of counsel the case was submitted on the testimony contained in the printed transcript of the record of a case between the same parties, which was tried some years since by my predecessor, Judge TREAT, at St. Louis, Mo., and is now pending on appeal from his decision in the supreme court of the United States. The answer in this case, as I take it, admits that all the coupons sued upoo and filed in this case bear the signature of the county clerk of Scotland \.>Ounty, and were detached from bonds which were signed by the presiding justice of the county court of Scotland county, and that his signature is duly attested by the signature of the county clerk and seal of the oounty court. There is a plea that the coupons declared upon are not the act or deed .of Scotland county, but, taken as a whole, it is clear, I think, that the answer puts in issue, not the genuineness of signatures to the bonds, or the existence of instruments purporting to be bonds of Scotland county, such as are described in the petition, but the power of the various county officials to execute such securities, and thereby bind the county. The authority of the county court to issue the bonds in question, notwithstanding the consolidation of the Alexandria & Bloomfield Railroad with the Iowa Southern Railway, thereby forming the Missouri, Iowa & Nebraska Railroad, and notwithstanding the change of the route of the road, is settled, so far as this court is concerned, by the decision in Scotland Cb. v. Thomas, 94 U. S. 682, where these questions are fully considered and determined. The answer contains a further plea to the effect that the entire issue of bonds by Scotland county, including, of course, those from which the coupons in suit were detached. have been adjudged void by the supreme court of the state of Missouri, in the case of Wagner v. Meety, 69 Mo. 150, and that the plaintiff stands in privity with the defendants in that suit, and is bound by the decree therein, not being himself an innocent purchaser of the bonds, and not having derived title thereto by, through, or under an innocent purchaser thereof. This latter defense was mainly relied upon in the case tried before Judge TREAT, and is particularly invoked in the present suit. In the case of Scotland Cb. v. HiU, 112 U. S. 185, 5 Sup. Ct. Rep. 93, also in the case of Warren Co. v. Marcy, 97 U. S. 96, it was held that purchasers of commercial paper like that now in suit were not chargeable with constructive notice of the pendency of litigation affecting the title or validity of such securities; that to bind a purchaser of such securities by a decree or judgment in a suit affecting the same to which he was not a party, it must appear that he bought v.34F.no.3-14 6.
'210
FEDERAL REP0RTER.
with actual notice of the pending litigation. Following that rule,' Judge TREAT held in the former suit between these parties that to preclude plaintiff from recovering upon the, UOripOIts then .in issue (inasmuch as the supreme court of the United States had decided that the county of Scotland had authority to issue the bonds'from which the coupons Were detached) it must be made to appear that 'every holder of the bonds, from the time they left Mety's hands, who" as an agent of the county, delivered ·tInem, down to·and including .theplaintiff, was affected with actual notice of the suit of Wagner Mety. In other words, it was ruled that,' if a single holder intermediate between Mety and the. plain;. tiffbought"the bonds in open market,'for.value; without notice of the suit, and prior to maturity, that such negotiation to an innocent chaser created a good title, upon which plaintiff might recover, notwithsianding;thedecree in .Wagnerv. Meety, and notwithstanding any notice which the plaintiff may have had of that suit at the date of his purchase. The ruling 9f the court on that point is not seriously questioned in the present case. "Indeed, it is a of commerdal law that title to a.' negotiable instrument created by a sale of the same to an cent person, for value, and before maturity, is a title upon which,any subsequent transferee can recover, notWithstanding he may have notice of infirmities of title, or. of equities or defenses that exist between the original parties. Cornmis,ioners v.. Clark Co., 94 U. S. 278; Oromwell v. SacCo., 96 U.S. 59; St'Ory, Prom. Notes,§ 191. It is insisted. however, that 23: of the bonds involved in the;,:present case were, not in;. volved iin the .former suit; ,that the title thereto was not traced in the ·former suit;; ;that no negotiation of the same to an innocent purchaser was proven; and that, when on the present trial the record in the' suit of Wagner v .,Mi!.ety was offered, the burden ·devolved ripon the plaintiff to sbowthat,he,was himselfaninnocent purchaser of the 23 bonds tion, or to show a title dellived thereto from an innocent purchaser, which, as it is claimed, the testirnonyin'the record wholly'fails to'establish. With reference ,to this contention I will saytbat, asltbe J plea relied upon is that of a fOl'meradjudibation that the bonds were illegally issued, which adjudication is claimed Ito be binding On the plaintiff he derives title to the bonds under persons who 'were parties to that suit, and with: notice of its· pendency, it is dotlbtful whether the production 'of that record iinposed on plaintiff tbe burden of tracing the bonds,' and showing,.that they had passed through the hands of an innocent'purcbllser. As ,plaintiff waanot a party to the suit of Wagner v. Meety, and as the bonds involved were negotiable securities, ,it wonld seem rather that, the decree in, that case would not be evidence as against the plaintiff that the borids were putin'circulation fraudnlently or gally, ,so as to 'cast the burden of proof upon plaintiffy until the defendant itself traced the history of the bonds, and given evidence at least ,tending to show that plaintiff and all preceding holders bought with notice oftnat suit, and so stood in privity with the defendants therein. Defendant: Beems to invoke the decree in that CAse as evidence of fraud
M'KINISTRY fl. UNITED STATES.
211
and illegality in the issue of the bonds before laying the necessary dation to make the decree evidence as against those who were not parties to the suit. But, be this as it may,assuming for the purpose qf this decision that the burden is on the plaintiff to show that the 23 bonds alluded to that were not involved or traced in the former suit have passed through the hands of an innocent purchaser, the testimony, in my opinion, fairly shows such fact. The evidence contained in the printed record upon which this case was submitted, shows that the Missouri, Iowa & braska Railroad Company transferred the entire issue of bonds for value and before maturity to the Iowa Railroad Contracting Company; that the latter company bought without notice of the suit of Wagner v. Meety, and without notice of any infirmity of title, and it subsequently sold the whole issue in open market at about 80 cents on the dollar to various purchasers. Without any reference, therefore, to the question whether the testimony also shows that plaintiff bought with notice of the pending suit, or with notice that a part of the bonds had been put ill: circulation in violation of an injunction of the state court, it appears to me that the evidence establishes the fact without contradiction that before the bonds reached his (plaintiff's) hands, they had passed through the hands of an innocent purchaser, and that he is not precluded from recovering in this case by reason of any notice or information which he may have had .at the date of his purchase. The result is, in my opinion, that judgment should be entered as prayed for by the plaintiff; and it is . . accordingly so ordered.
McKINISTRY '11. UNITED STATEs.
(O-vreuit Oourt, S. D. Alabama. March 9,1888.)
1.
U!UTll'JD;STATEll CoMMISSIONERS-FEES-COMPLAINT IN CRIMINAL CASE.
A United ,States commissioner is not entitled to a fee· for drawing a complaint in a criminal prosecution, but, such complaint being sworn to and filed. he is entitled to the fee. viz., 10 cents, prescribed (Rev. St. U. S. 847, par. 1) for administering an oath, and to that, viz., 10 cents, for filing a paper in a cause U. S. § 847, {lar. 7, and § 828, par. 3.) Code Aill. §§ 4256, 4257, provides tbat in the preliminary examination of a criminal the. magistrate shall reduce to writing the testimony of tbecomplainant and of such witnesses as. he may offer in support of the charge. and styles such testimony a deposition; but the testimonr of each witness need only be "signed" by him, and is not required to be certIfied and filed, nor are same formalities observed in tl:teproceeding as are prescribed (Id. §§ 2807, 2808) in the taking of depositions. Held, that such an examination in the case of one charged with an offense against the United States, reduced to writin&, by a United States commissioner in Alabama, was not a "deposition" withm the meaninp; of Rev; St. U., S.§847, par. 9, prescribing a fee of 20 cents a folio "for taking and certifying depositions to file." Under Hev. St. U. S. § 847, par. 7, and § 828, par. 1-8, a commissioner· is entitled to 8 fee of one dollar for issuing. and 10 cents for :filing, a warrant, and 25 cents for .issuing a summons, and 10 cents for tiling it when returned
SAME-REDUCING TESTIMONY TO WRITING.
8.
SAME-WARRANTS ·AND SUMMONS.