Knox County v. Ninth Nat Bank of City of New York
| Decision Date | 03 January 1893 |
| Docket Number | No. 78,78 |
| Citation | 13 S.Ct. 267,37 L.Ed. 93,147 U.S. 91 |
| Parties | KNOX COUNTY v. NINTH NAT. BANK OF CITY OF NEW YORK |
| Court | U.S. Supreme Court |
Action by the Ninth National Bank of the city of New York against Knox county, in the state of Missouri, to recover upon certain county bonds and coupons. Verdict and judgment for plaintiff. New trial denied. 37 Fed. Rep. 75. Defendant brings error. Affirmed.
Statement by Mr. Justice BREWER:
On February 20, 1865, the legislature of the state of Missouri passed an act to incorporate the Missouri & Mississippi Railroad Company. Sess. Acts 1865, p. 86. Section 7, prescribing the route of said road, reads:
By section 13 it was provided:
Chapter 63 of the General Statutes of Missouri of 1866 is a general statute in reference to railroad companies. Section 17 of that chapter is as follows:
Gen. St. Mo. 1866, p. 338; 1 Wag. St. 1870, p. 305.
On October 1, 1867, and on February 1, 1868, the county of Knox issued $100,000 in 10-year bonds to the Missouri & Mississippi Railroad Company. The body of the bond is in these words:
'Know all men by these presents, the county of Knox, state of Missouri, acknowledges itself indebted to the Missouri and Mississippi Railroad Company (organized by an act of the general assembly of the state of Missouri) or bearer, in the sum of $500.00, which said sum the said county promises to pay at the National Bank of Commerce in the city of New York, * * * with interest at 7 per cent. per annum, which interest shall be payable annually on presentation of the coupon hereto annexed at said National Bank of Commerce in the city of New York; this bond being issued under and pursuant to order of the county court of Knox county, for subscription to the stock of the Missouri and Mississippi Railroad Company, as authorized by an act of the general assembly of the State of Missouri, entitled 'An act to incorporate the Missouri and Mississippi Railroad Company,' approved February 20, 1865.'
On June 14, 1884, the defendant in error, claiming to be the owner of certain of these bonds, brought suit in the circuit court of the United States for the eastern district of Missouri. In the petition it was alleged that 'all of said bonds and coupons were authorized, issued, and negotiated by said defendant county under and by authority of orders of the county court of said county, duly entered on the records of said court, and under and by the authority of a special election of the qualified voters of said Knox county, duly ordered and held under and according to the laws of Missouri, in said county, on the 12th day of March, 1867, at which election five hundred and ten votes were duly and legally cast in favor of making the subscription to the said company, and of issuing therefor the bonds herein described, and only ninety-eight votes were cast against the said subscription and issue of bonds.' The answer admitted the issue of the bonds, but alleged that they were issued under the authority conferred upon the county court of Knox county by the thirteenth section of the act incorporating the Missouri & Mississippi Railroad Company, and expressly denied that they were 'issued to said Missouri & Mississippi Railroad Company in payment of said subscription in compliance with a vote of the people of said county, as alleged in said petition.' Upon these pleadings the case went to trial before a jury, which resulted in a verdict and judgment on March 7, 1888, in favor of the plaintiff for the amount due on the bonds and coupons, and an adjudication 'that the bonds and coupons sued upon by plaintiff were duly issued by the defendant county under and by authority of order of the county court for the purpose, and under and by authority of a special election of the qualified voters of said county, duly ordered and held in said county for that purpose, at which more than two thirds of such qualified voters voting at said election voted for the subscription of stock and issue of said bonds and coupons, as charged in plaintiff's petition; and, further, said bonds and coupons, together with the subscription aforesaid, were duly authorized by a vote of the qualified voters of said county, taken according to the laws of the state of Missouri.' To reverse which judgment the county sued out this writ of error.
Robt. G. Mitchell and B. R. Dysart, for plaintiff in error.
John B. Henderson, for defendant in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
No question arises in this case as to the amount of the judgment, or as to the validity of the bonds as obligations of Knox county. The answer in terms admitted the indebtedness, and the only question which was litigated was whether the bonds were issued solely under and by virtue of section 13 of the act incorporation the Missouri & Mississippi Railroad Company, or were supported by a vote of the people under the general railroad law. The difference between the two consists in this: If the bonds were issued under the general statute, and in pursuance of the vote of the people, they are payable without restriction as they fall due, and mandamus will lie to compel a levy sufficient to pay the judgment; if issued only under section 13 of the Missouri & Mississippi Railroad Company act, a special levy of not exceeding one twentieth of 1 per cent. of the assessed valuation for each year is all that can be enforced. U. S. v. County of Macon, 99 U. S. 582.
That this was a matter properly determinable in a suit on the bonds, and one to be finally settled by the judgment therein, is clear from the case of Harshman v. Knox Co., 122 U. S. 306, 7 Sup. Ct. Rep. 1171.
While the bonds on their face recite that they are 'issued under and pursuant to order of the county court of Know county for subscription to the stock of the Missouri & Mississippi Railroad Company, as authorized by an act of the general assembly of the state of Missouri, entitled 'An act to incorporate the Missouri and Mississippi Railroad Company,' approved February 20, 1865,' and while such a recital may be invoked by the holder of the bonds as an estoppel against the county, it is not conclusive in its favor as to the act under which the bonds were in fact issued. Commissioners v. January, 94 U. S. 202. The questions, therefore, to be considered are those which arise in respect to the admission of testimony, its sufficiency, and the instructions of the court. In reference to the former, it may be remarked that several witnesses were called, among them two who were county judges at the time the bonds were issued; that all were asked as to the talk which took place at the time the bonds were issued, and the county judges as to which act they relied upon in the issue of the bonds, and what they thought and intended in the matter. It is unnecessary to express an opinion as to the competency of this testimony, for no exceptions were taken to that which was offered by the plaintiff, and of course the defendant cannot allege error in the admission of that which it offered.
The record evidence consisted, among other things, of these matters: An order of the county court of Knox county, on February 6, 1867, upon a petition therefor, directing a special election to be held on the question of subscribing $100,000 to the stock of a railroad company constructing a road through Knox county, (no particular company was mentioned in the order, and three different lines of road were described, one of them similar to that named in the charter of the Missouri & Mississippi Railroad Company;) a record of the canvass of the votes at such election, showing 510 votes for and 98 votes against the subscription; and an order of the county court of May 13, 1867, authorizing the presiding justice of the court to subscribe in the name of the county of Knox for $100,000 of the capital stock of the Missouri & Mississippi Railroad Company. The terms of this subscription, as prescribed in this order, were the same as those in the order for an election, to wit, that the bonds should be used for work actually done on the road within the limits of Knox county. The plaintiff also introduced the orders of the county court with respect to the levy of taxes to pay the interest on these bonds for the years from 1868 to 1875, inclusive, which ranged from 30 to 75 cents on the $100, until the year 1875, when...
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