106
FEDERAL REPORTER,
vol. 47.
intended to be decided in White v. Cotzhausen. Certainly it is not apparent that the federal court intended to give a different construction to the section of the statute than the one placed upon it by the state court, but the presumption is very strong that the holding of the latter was adopted by the former as entirely satisfactory, and meeting fully the mischief intended to be remedied by the Illinois legislature. If at the time White v. Cotzhauscn was decided-January 28, 1889-the Illinois supreme court had made no decision construing this statute, or had made a decision giving it the construction contended for by complainants' counsel in this case, or if, even, since that time the Illinois courts had yielded to such a construction, I might feel more embarrassment. But DO sucb altitude is presented. Federal courts undoubtedly bave an independent co-ordinate jurisdiction with the state courts in the administration of state law'l, II.ndwhere the law has Dot been settled by the latter it is the clear rigbt and duty of tbeformer to exercise their own independent judgment. Where it has been settled, however, by the state courts, the federal courts are careful in avoiding any unseemly conflict, and desirous, in the spirit of comity, to act in harmonywitbstate courts in the construction of their . own laws. From the views herein expressed it follows that the bill must be dismissed; and accordingly it is so decreed.
SUTLIFF t1. LAKE
COUNTY.
(Cfn'tmU Court. D. Colorado.. July 24,1891:) ll(mnoTPu BOND8-V
WherQcounty b9ndll a;r6 issued in excess. of the constitutional limit of indebted· ness, a recital in the bonds tbat they are issued by virtue of a legislative act which reoltes the constitutional limitation, .and that all the provisions of· such act have been fully complied with, does not estop the county:trom d8IIling the validity of the bonda.
LIMI'.l' OJ'
·DEJrt'; ," ..
At Law. J. W. McOlure, for plaintiff. Daniel Eo Par'hl, J08. S. and H. B. Johnson, for defendant. (1) An estoppel cannot arIse upon a recital In a municIpal bond respectIng . the question ·of anthol'ityto issue the same. Dixorh Co. v.Field, HI U. S. 92, 4 Sup: Ct. Rep. 815; Catroll 00. v. Smith, 111 U. S. 556, 4 Sup. Ct. Rep. 539; Katzenbe1'ge1' v. Abe1'deen, 121 U. S. 172, 7 Sup. Ct. Hep, 947. (2) No tribunal can be authorized by Il:'gislative authority to make a recital in a municipal bond which will work an estoppel as against a constitutional limitation or Indebtedness. Lake 00. v. fimham, 13G O. S. 683, 9 Sup. Ct. Rep. 654. (3) The supreme court of the United States has always held that a purchaser of municipal bonds must take notice of the assessed valuation of the property of the municipality; and for the same reason, Where the act author"izing the issuance. of the bonds requires. as in this case, (Gen. St. § 670,) a record t-o be made .qf thll public indebtedness of the municipality, notice
SUTLIFF V. LAKE COUNTY.
107
114 Pa, St. 435, 7 At!. Rep. 156.
thereof is imputed to the purchaser. Borongh of Millerstown v. Ihedel'ick,
HHLETT, J., (omlly.) John Sutliff against The Board ofCollnty Commissioners of the County of Lake is an action upon coupons attached to certain bonds issued by that county under the provisions of the act of March 24,1877. The case is submitted to the court upon an agreed statement of facts, from which it appears th:1t the bonds upon which the action is founded were in excess of the constitutional limit; and the question is whether the case is within the decision in Lake Co. v. Gmham, 130 U. S. 683, 9 Sup. Ct. Rep. 654. The plaintiff maintains that the county is estopped to deny the force and validity of the bonds by some recitals in them. The plaintiff, being an innocent holder of the bonds. is entitled to the protection of such recital. His position is stated in the brief filed by his' counsel in these words: '''fhe bonds upon their face recite that they were issued in compliance with a majority vote of the qualified electors of said county, under and by virtue of the above-mentioned act of the legislature, and that all the provisions of said act have been fully complied with by the proper officers in the issuance of this bond." The act of assembly under which the bonds were issued, contains the same limitation, as to the indebtedness of the county which the county commissioners were not to exceed, as is in the constitution. In effect, it repeats the language of the constitution upon this subject, stating what the limitation shull be; but there is nothing in the act authorizing the county commissioners to ascertain the amount of the indebtedness, and determine the fact whether the bonds were or were not in excess of the constitutional limit. If there had been in the act such a provision as that by which the connty commissioners would be authorized to determine the amount of the indebtedness existing at the time of issuirig the bonds, and whether the bonds were within or beyond the constitutionallimit, there would be something in many decisions of the supreme court to support the position of the plaintiff; because it has been many times decided by the supreme court that, whenever a matter offaot is submitted to the county authorities for their decision and determination, such as the holding of an election, the form in which the bonds shall be issued, and the like, and the county authorities proceed under the a,ct to determine the fact, the county sball be bound by that decision and determination; there shall be no other inquiry cQnceruing it. But the question in this case lies back of that, and relates to the power of the county to create the indebtedness. It is believed that, whenever such a question has come before the supreme court, it has been uniformly held that the county authorities .cannot determine for themselves or otherHere is something wise the question of their authority in from Bank v. Porter Tp., 110 U. S. 1314,4, Sup. Ct. Rep. 254: "It is, however, contended that, by'the settled doctrines of this court, ,the township is estopped, by the recitals of the bdnds In suit, to make its preS'eht defense. The bonds, upon their face, purport to have been issued' in PUl1lUthe provisions of the several acts oNhegeneral assembly olthe state
108
of Ohio, and of a vote of the qualified electors in said township of Porter, taken in pursuance thereof.' These recitals, counsel argue, import a compliance in all respects with the law, and therefore the township wiII not be allowed, against a bona jide holder for value, to 8'1)' that the circuillstances did not exist which authorized it to issue the bonds. It is not to be denied that there are general expressions in some fonner opinions which, apart from their special fact;.;, would seem to afford support to this proposition, in the general terms in which it is presented." And then the court proceeds to review several cases decided in that court, and comes to the ca"e of Town of ColO/ita v. Eaves, 92 U. S. 484, from which the court quotes this language: "When legislative authority has been given to a municipality, or to its otlicers, to subscribe to 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 municiplllity were invested with power to decide whether the conditions precedent has been complied with, their reCltal'that it has been, made in the bonds issued by them, and held by a bonaji<'le purchaser, is conclusive of the fact and binding upon the municipality; for the recital itself is a decision of the fact by the appointed tri bUlla!." This states the proposition to which I referred a moment ago, that when the municipality is authorized to decide a question, and the dec:ision is made, the municipality is bound by thatdecision. The court then further states: . "But we are of opinion that the rule as thns stated does not support the position which counsel for plaintiff in error take in the present case. The ad· special circumstances, show tlmt judged cases, examined in the light of the facts which a municipal corporation, issuing bonds in /lid of the construction of a railroad, was not,perillitted,against a bonajide holder, to question. in face of II rp:eital in the bond of their existence, were those connected with or growing out of the discharge of the ordinary duties of such of its oHicers as were invested with authority to execute them, and which the statute couferring the po\\rer made it their duty to ascertain and determine before the bonds were issued; not merely forthernselves. as the ground of their own action, in issuing the bonds, but equally as authentic, and tinal evidenco of their existence, "for the information and action of all others dealing with them in reference to, It. SLJch is not the case before us. Had the statutes of Ohio conferred upon a township in Delaware county authority to make II subscription to the stock of this company, upon the approval (jrthe voters at an election previously held, tl1en a recital by its proper officers, such as is found in the bonds in suit; would ha ...'e estoppt-d the township from proving that no election was in fact held,. or,that the'election was not called and conducted in the mode prescribed by law; for in such case it would be clear that the law had referred to the officers of. the township, not only the lIscertainment, but the decision, of ple invol ved mode of exerdsing the power granted. Hut in this' case,' as we have seen, power in townships to did not come into eidstence,-that did notexist,-except where the coil'nty commission7 .ershad not been authorized to make a subscription." . case,dearly points9Qt the distinction between power conferred exerCis-ed in a maJ,lU,e,rdescribed: and power, altogether withheld, Whl.'neyer the power is given, and regulations arf3; prescribed as to the manner of its exercise,' the.recital of the n1unieipal authorities as to the .
SUTLIFF V. I,AKE COUNTY.
109
way in which it has been exercised is conclusive upon them; whenever the power is withheld from the corporation, no recital whatever binds the corporation. This appears still more clearly in the case of Dixon Co. v. Field, 111 U. S. 92, 4 Sup. Ct. Rep. 315: "Recurring, then, to a consideration of the recitals in the bonds, we assume, for the purposes of this argument, that they are ill legal effect equivalent to a representation or warranty or certificate on the part of the county officers that everything necessary by law to be done has been done, and every fact necessary by law to have existed did exist, to make the bonds lawful and binding. Of course this does not extend to or cover matters of law. All parties are equally bound to know the law; and a certificate reciting the actual facts, and that thereby the bonds were conformable to the law, when judicially speaking they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the la w. Otherwise it would always be in the power of a l:lunicilJal body, to which pllwer was denied, to usurp the forbidden authority, by declaring that its assumption was within the law, 'fhis would be the clear exercise of legislative power, and would suppose sm:!h corporate bodies to be superior to the law itself. And the estoppel does not arise, except upon matters of fact which the corporate officers had authority byhw to determine and to certify. It is not necessary, it is true, that the recital should enumerate eaeh particular fact essential to the existence of the obligation. A general statement that the bonds have been issuerl in conformity with the law will sulfite, so far as to embrace every fact which the officers making the statement are al\thorized to determine and certify. A determination and statement as to the whole series, where more than one is involved, is a determination and certificate as to each essential particular. But it still remains that there must be authority vested in the officers, by law, as to each necessary fact, whether enumerated or non-enumerated, to ascertain and determine its existence, and to guaranty to those dealing with them the truth and conclusiveness of their admissions. In such a case, the meaning of the law granting power to issue bonds is that they may be issHed, not upon the existence of certain facts to be aSf'ertained and determined wlien ever disputed, but upon the ascertainment and determination of tbeir existence by the officers or body designated by law to issue the bonds upon such a contingf'ncy.. This becomes very plain when we suppose the case of such a power granted to issue bonds upon the existence of a state of facts to be aScertainecl and determined by some persons or tribunal other than those authorized to issue the bonds. In that case it would not be conten<led that a recital of the facts in the instrument itself, contrary to the finding of those charged by law with that duty, would have any legal effect. So, if the fact necessary to the existence of the authority was by law to be ascertained, not officially by t'le officers charged wtth the execution of the power. but by reference tu some f'Xpress and detinite record of a public character, then the true meaning of tile la w would be that the authority to act at all depended upon the actual objectjve existence of the rf'quisite fact, as shown by the record, and not upun its ascertainment and determination by anyone; and the consequence 'Would necessarily follow that all persons claiminl{ under the exercise of such a power mighlibe put to proof of the fact lnade a condition of its.lawfulne:ls, notwithstanding any recitals in the instrument."
And again: lIThis is the rule which has been cons'talitly' applied by this court in the numerous cases in which ,it has been invol\' d; The differences in 'We result of the judgments have depended upon the qupstion whether, in the particular ,case under consideratiOn, a fair oonstructiOIl of the law. authorized the officers
110
issuing the bonds to ascertain, determine, and certify the existence of the facta upon which their power, by the terms of the law, was made to depend; not inclu\ling, of course, that class of cases in which the controversy related, not to conditions precedent, on which the right to act at all depended, but upon conditions affecting only the mode of exercising a power admitted to have come into being. In the present case there was no power at all conferred to issue bonds in excess of an amount equal to ten per cent. upon the assessed valuation of the taxable property in the county."
That is the principle upon which Lake Co. v. Graham was decided. This decision is cited in that opinion. The principle is that, when power is not given to the county to issue the bonds, no recital whatever binds the county. There must pe power to act in the first place; when the power exists, recitals that it is exercised in conformity to the IIlW are conclusive. In this instance, as said in Lake Co. v. Graham, there was no power. ,The power not existing, 01 course the bonds issu!)d are void. The judgment will be for defendant. As counsel for the plaintiff in this suit resides abroad, 90 days will be allowed him to file a bill of exceptions, and bond on writ of error will be in the sum of $500.
In re
PERRY
et al. April 27, 1891.)
(Circuit Court, S. D. New York.
1. 2.
CUSTOMS DUTIES. SAME.
Painted glass windows, specially imported in good faith for the use of a society or institution incorporated or established for religious purposes, and not intended for sale, are free of duliy, under paragraph 677. Painted glass windows held to be "paintings," within the definition of that term in paragraph 677 of the list; and the particular use of the importation, as therein described, constitutes'a more specifio designation thereof than the language used in paragraph.122. . '.', ",. , .
S.
SAME..
At Law·. Appeal from decision of board of United States general appraisers. . Perry & Ryerimported intothe port of New York, per Rugia, Novemstained or painted glass windows Of paintings on .ber 24, 1890, glass wh!ch were specially imported in good faith for the use of the Convent of the Sacred Heart at Philadelphia, and not intended for sale. They were invoiced as "three cases paintings," and were returned by the appraiser as attaining to the rank.of wdrks of art. The conector of customs at the port of New York assessed duty thereoh'at 45 per centuDl ad valorem under the provisions of paragraph 122 of Schedule B of the tariff act ofOctober 1, for that rate of duty upon "all stained or painted window.glassand stained or painted glass windows." The importers duly protested, claiming that the said paintings were entitled to exemption from duty under the provision in the free list of said