UNITED STATES SUPREME COURT DECISIONS ON-LINE
CAIRO V. ZANE, 149 U. S. 122 (1893)
149 U. S. 122U.S. Supreme Court
Cairo v. Zane, 149 U.S. 122 (1893)
Cairo v. Zane
No. 210
Argued April 13-14, 1893
Decided April 24, 1893
149 U.S. 122
Syllabus
In accordance with a previous resolution of the City Council of Cairo, Illinois, an election was duly held there on the 28th of May, 1867,
"for the purpose of voting upon the question of the city's issuing $100,000 in twenty-year bonds, drawing eight percent interest, as a subscription to the capital stock of the Cairo and Vincennes Railroad,"
and it was, by a vote of 695 to 1, "declared to be the wish of the people that the said sum of $100,000 be so subscribed." Such subscription was accordingly made. In November following, the railroad company and the city further agreed that the railroad company should commence work within six months and push it with dispatch; that the city should issue its bonds to the amount of $50,000, when the road should be completed to the boundary line between Alexander and Pulaski Counties, and a like amount when it should be completed to the boundary line between Pulaski and Johnson Counties, and that each amount when issued should be delivered to the railroad company in exchange for a like amount of its stock, and that the city should, as each issue of stock was made, sell it to the railroad company for the sum of $2500 in bonds of the city. In July, 1871, an ordinance was passed authorizing this contract to be carried out, and in December, 1872, the city, by its trustee, delivered to the railroad company bonds to the amount of $100,000, the company delivered to the trustee for the city certificates of stock to the like amount and bonds of the city to the amount of $5,000, and the trustee thereupon transferred the certificates of stock to the company. The Mayor of the city then, on the 14th of December, 1872, reported to the Auditor of the State of Illinois an issue of bonds of the city to the amount of $95,000 for subscriptions to the stock of the railroad company, and the bonds were certified by the auditor as registered pursuant to the laws of Illinois "to fund and provide for paying the railroad debts of counties, townships, cities and towns." The bonds were sold by the company and passed into the hands of innocent holders for value. The city having failed to pay the coupons on said bonds as maturing, one of the holders brought suit to recover the same.
Held:
(1) That the executed agreement on that part of the city to subscribe for stock, and on the part of the company to receive bonds in payment therefor, was not affected by the further act of the city in parting with its stock to the company in consideration of a return of a portion of the bonds, and that whatever wrong might have clubjuris
been committed by the City Council in the latter transaction did not vitiate the bonds issued under the former after they had passed into the hands of a bona fide holder.
(2) That as the statute of the state had provided for the registry of municipal bonds in such cases and a certificate thereof, such certificate should be held to be sufficient evidence to a purchaser of the existence of the facts, upon which alone the bonds could be registered.
(3) That the bonds were valid in the hands of a bona fide holder.
(4) That under the laws of Illinois governing the issue, the city had the power to make the bonds payable in New York.
(5) That under the settled rule in Illinois, the coupons drew interest after maturity.
On August 3, 1883, defendant in error commenced suit in the Circuit Court of the United States for the Southern District of Illinois on certain coupons attached to bonds issued by the City of Cairo, plaintiff in error. After answer had been filed, a trial was had which resulted in a judgment in favor of plaintiff for $8,556.36. This judgment was entered on February 27, 1888, and to reverse such judgment the city sued out a writ of error from this Court.
The facts as developed in the case are these: on May 28, 1867, a resolution passed the City Council of the City of Cairo, ordering a special election
"for the purpose of voting upon the question of the city issuing $100,000 in twenty-year bonds, drawing eight percent interest, as a subscription to the capital stock of the Cairo and Vincennes Railroad."
An election was duly had at which 695 votes were cast in favor of the subscription and 1 vote against. At a meeting of the council on July 1, the vote was canvassed and a motion carried "that it be declared the wish of the people that the said sum of $100,000 be so subscribed." On November 5, 1867, the journal of the proceedings of the City Council contains this record:
"A proposition was received from the Cairo and Vincennes Railroad Company, proposing to purchase from the City of Cairo the $100,000 capital stock of said company subscribed by said city, accompanied by the following contract for consideration, viz.:"
"This contract, made and entered into by and between the
City of Cairo, Illinois, party of the first part, and the Cairo and Vincennes Railroad Company, party of the second part, witnesseth:"
"That whereas heretofore, to-wit, on the first day of July, 1867, by a vote of the electors of the City of Cairo, Illinois at an election held in said city, the Mayor and City Council of Cairo were authorized to make a subscription of one hundred thousand dollars to the capital stock of the Cairo and Vincennes Railroad Company, and to pay for said stock in bonds of the City of Cairo of the denomination of five hundred dollars with the bonds to run for twenty years, and to bear interest at the rate of eight percentum, payable half-yearly on the first days of January and July of each year in the City of New York, said City of Cairo being required by the laws of this state to issue installments of said bonds from time to time as assessments may be made upon said stock by said railroad company;"
"And whereas, the said railroad company proposes to guarantee that work on said road shall be commenced at Cairo within six months from the date of this contract and that the construction of the roadbed and laying the track from Cairo northward shall be pushed with reasonable dispatch, and also to release the City of Cairo from the obligation to issue any part of said bonds until said railroad shall be built from Cairo to the boundary line between Alexander and Pulaski Counties, and also to purchase of the City of Cairo the stock to be issued to said city upon the delivering of the city bonds aforesaid, it is therefore hereby stipulated and agreed by and between the parties aforesaid as follows:"
"Article 1. The party of the second part agrees that work on said road shall be commenced at Cairo within six months of the date of this contract, and that the construction of the roadbed and laying of the track from Cairo northward shall be pushed with reasonable dispatch."
"Article 2. The party of the second part agrees that instead of the City of Cairo's issuing bonds in payment for stock upon assessments made from time to time by said railroad company, the City of Cairo shall issue fifty thousand dollars of bonds
and deliver the same to said company in payment for stock, when the track of said road shall have been laid to the boundary line between the Counties of Alexander and Pulaski, and cars shall have run thereon, and the said city shall issue fifty thousand dollars of bonds as aforesaid, and deliver the same to said company in payment for stock, when the track of said company shall have been laid, and cars shall have run thereon, from the City of Cairo, through Pulaski County to the boundary line between that county and Johnson County, Illinois."
"Article 3. The party of the first part hereby agrees to issue the fifty thousand dollars of bonds of the City of Cairo in payment for fifty thousand dollars of stock of said Cairo and Vincennes Railroad Company, and deliver said bonds to said company whenever the railroad track of said company shall be laid from Cairo to the boundary line between Alexander and Pulaski Counties, and cars shall have run thereon, and also to issue fifty thousand dollars of said bonds in payment for stock as aforesaid, and deliver the same to said company whenever the railroad track of said company shall have been laid from the City of Cairo to the boundary line between Pulaski and Johnson Counties, and cars shall have run thereon."
"Article 4. And whereas the early construction of said road is of vast importance to the City of Cairo, therefore, in consideration of the stipulations made by the party of the second part in articles first and second of this contract and in consideration of the sum of five thousand dollars to be paid by the said party of the second part as hereinafter stated, the party of the first part hereby agrees to sell and transfer to said party of the second part the one hundred thousand dollars stock of said railroad company, to be issued to the City of Cairo, Illinois, in payment for one hundred thousand city bonds at and for the sum of five thousand dollars, as follows: when fifty thousand dollars of the stock of said company shall be issued to the City of Cairo, the party of the first part agrees to transfer and assign the same to the party of the second part on payment of twenty-five hundred dollars in Cairo city bonds,
and when the fifty thousand dollars of the stock of said company shall be issued as aforesaid, the party of the first part agrees to transfer and assign the same to the party of the second part on payment of twenty-five hundred dollars in Cairo city bonds."
"Alderman Baker then offered the following resolution, viz.:"
"Resolved that the contract between the City of Cairo and the Cairo and Vincennes Railroad Company this evening laid before the City Council by the president of said company be, and the same is hereby, approved, ratified, and confirmed by the City Council of the City of Cairo, and that the proper city officers be, and are hereby, authorized, empowered, and instructed to sign, seal, and execute said contract for and in behalf of the city."
"Alderman Vincent moved that said resolutions be adopted, which motion was carried by the following vote, viz.:"
"Ayes: Baker, Halliday, Hamilton, Lansden, Redman, Rittenhouse, Vincent, and Webb."
"Nays: None."
On July 22, 1871, this ordinance was passed:
"An ordinance to authorize the subscription of $100,000 to the Cairo and Vincennes Railroad Company, and for other purposes."
"Whereas, by an agreement entered into between the Cairo and Vincennes Railroad Company and the City of Cairo, and approved by the City Council November 25, 1867, it is provided that the stock, amounting to $100,000, to be issued by the Cairo and Vincennes Railroad Company to the city for the subscription of that amount, should be sold by the city to the said company upon certain conditions as expressed in said contract, and whereas it is understood that said company are willing to extend the time for the issue of said bonds and the commencement of the payment of interest on the same, therefore,"
"Be it ordained by the City Council of the City of Cairo:"
"SEC. 1. That the Mayor of the city be, and is hereby,
authorized and instructed to subscribe on behalf of the City of Cairo to the capital stock of the Cairo and Vincennes Railroad Company in the sum of one hundred thousand dollars, said subscription to be payable in bonds of the city, as hereinafter provided for; that the mayor, city clerk, and city comptroller be, and they are hereby, authorized and instructed to have prepared, and to sign and seal, bonds of the city to the amount of one hundred thousand dollars, to be issued to said railroad company, said bonds to be in such sums as the said company may desire, to bear interest at the rate of 8 percent per annum, and to be payable twenty years after the date thereof, with coupons attached for the payment of the interest semi-annually on the same; that the mayor is hereby authorized and instructed to take charge of said bonds when prepared and signed, sealed, and ready for delivery, and is authorized and instructed to deliver the same to some responsible banking, loan, or trust company, trustee or trustees, located or residing in the City of New York or elsewhere, as may be agreed upon by him and said railroad company, said bonds to be held by said banking, loan, or trust company, trustee or trustees, in escrow, and to deliver up to the said Cairo and Vincennes Railroad Company when the said Cairo and Vincennes railroad has been constructed -- that is to say, has been put in good ordinary running order -- from the City of Cairo, Illinois, to the City of Vincennes, Indiana, and the cars shall have run thereon, and not before, provided work on said road shall be resumed by or before October 1st next, and said road shall be finished by or before the first day of August, 1873, and provided also that the interest accruing on said bonds previous to their delivery to said railroad company shall not inure to the benefit of said railroad company, but the coupons for all accrued interest shall be detached from said bonds previous to their delivery to said railroad company, and be returned to said City of Cairo, so that interest shall not be paid or accrued to said railroad company before the time when said company shall be entitled to receive said bonds according to the condition herein expressed."
"SEC. 2. It shall be, and it is hereby, made the duty of the
banking, loan, or trust company or trustees which shall be chosen or selected to hold such bonds, as hereinbefore provided, to deliver up the said bonds to said railroad company upon the said company's issuing to said city and delivering to said trustee one hundred thousand ($100,000) dollars of paid-up stock in said railroad company, which said stock the said trustee is hereby authorized and directed to sell to said railroad company for five thousand dollars ($5,000) of Cairo City bonds, so as thereby to carry out the provisions of the agreement entered into November 25, 1867, by and between said city and railroad company."
"Approved July 22, 1871."
"John M. Lansden, Mayor"
"Attest: M.J. Howley, Clerk"
On January 6, 1873, these proceedings were had:
"The finance committee also reported that they had received from A. B. Safford, trustee, five bonds numbered from 96 to 100, inclusive, for $1,000 each, issued in favor of Cairo and Vincennes Railroad Company, and also 100 coupons detached from said bonds before being transferred to said railroad company. The committee reported that they had destroyed said bonds by burning, and asked that their action be approved."
"Alderman Safford moved that said report be received, and the action of the committee sanctioned. Carried."
"A communication was read from A. B. Safford, trustee, stating that he had, on the 4th day of December, delivered to the Cairo and Vincennes Railroad Company one hundred thousand dollars in bonds of the City of Cairo, from which he previously detached all the January, 1873, coupons, subject to the order of the city; that in return he received from said railroad company (a certificate) for one hundred thousand dollars paid-up stock of said company, and in accordance with the provisions of ordinance 119, approved July 22, 1871, he had transferred said stock to said railroad company, and received from said company therefor five thousand dollars in said bonds. Said trustee further stated in his communication that as he had detached all the January 1, 1873, coupons, the
company is entitled to sixteen days' interest, amounting to $337.82."
"Accompanying said communication was a copy of a receipt of Councilman Wood, chairman of the finance committee, for said five thousand dollars in bonds and for said detached coupons, a copy of a receipt of the Cairo and Vincennes Railroad Company, by Edward F. Winslow, attorney in fact for said one hundred thousand dollars in bonds, and also a copy of a sworn certificate of E. F. Winslow, of the firm of Winslow & Wilson, and Charles O. Wood, to the effect that on the 13th day of December, 1872, a through train passed over the Cairo and Vincennes railroad from the City of Vincennes to the end of the track at Cairo."
On December 14, 1872, the mayor of the city furnished to the Auditor of the State of Illinois the following certificate of registration:
"Certificate of Registration"
"State of Illinois, County of Alexander"
"City of Cairo, December 14th, 1872"
"To the Auditor of Public Accounts of the Illinois."
"Sir: I hereby certify that the following described bonds are entitled to registration in your office under the provisions of the act entitled 'An act to fund and provide for paying the railroad debts of counties, townships, cities, and towns,' in force April 16, 1869, the bonds being numbered from No. 1 to No. 95, inclusive, for $1,000 each, dated July 1st, 1872, and payable July 1st, 1892, being in all 95 bonds, and amounting to $95,000, and bearing interest at the rate of eight percent per annum, payable semiannually on the first days of January and July. These bonds are issued by the City of Cairo, in the County of Alexander and State of Illinois, to the Cairo and Vincennes Railroad Company, under and by authority of the provisions of 'An act to incorporate the Cairo and Vincennes Railroad Company,' approved March 6th, A.D. 1867, and the general act of the legislature of this state for subscriptions of stock, etc., in railroad companies, approved November 6th, 1849, and by a vote of the people of said City of Cairo at an election
held on the first day of July, A.D. 1867, and I, as the Mayor of said City of Cairo, do hereby certify that all the preliminary conditions in the act 'in force April 16th, 1869,' required to be done to authorize the registration of these bonds and to entitle them to the benefits of said act last referred to, have been fully complied with, to the best of my knowledge and belief."
"John M. Lansden,"
"Mayor of the City of Cairo, Illinois"
"Subscribed and sworn to by the said John M. Lansden, Mayor, etc., before me this 14th day of December, A.D. 1872."
"[Seal]"
"H. H. Candee, Notary Public"
The bonds were, with the endorsements, in the following form:
"Bonds of City of Cairo"
"(Number ___.) United States of America ($1,000)"
"Bond of the City of Cairo, State of Illinois, issued in Payment of Stock in the Cairo and Vincennes Railroad Company."
"Know all men by these presents, that the City of Cairo, in the County of Alexander and State of Illinois, acknowledges itself indebted and firmly bound to the Cairo and Vincennes Railroad Company in the sum of one thousand dollars, which sum the said City of Cairo promises to pay to the said Cairo and Vincennes Railroad Company, or bearer at the National Bank of Commerce in the City of New York, on the first day of July, 1892, together with interest thereon from the first day of July, 1872, at the rate of eight percent per annum, which interest shall be payable semi-annually on the first days of January and July in each year, on the presentation and delivery at said National Bank of Commerce, New York, of the coupons of interest hereto attached."
"This bond is issued in pursuance of an ordinance passed by the City Council of said City of Cairo, and authorized by a vote of the citizens of said city, and in accordance with the laws of the State of Illinois. "
"In testimony whereof the said City of Cairo has executed this bond by the mayor, city clerk, and city comptroller thereof signing their names under the ordinance authorizing the same, and affixing the seal of said city at said City of Cairo, on the 1st day of July, A.D. 1872."
"J. M. Lansden, Mayor"
"E. A. Burnett, City Comptroller"
"M.J. Howley, City Clerk"
"[City of Cairo Seal]"
"(Endorsement on above bond:)"
"Auditor's Office, Illinois"
"I, Charles E. Lippincott, Auditor of Public Accounts of the State of Illinois, do hereby certify that the within bond has been registered in this office this day, pursuant to the provisions of an act entitled 'An act to fund and provide for paying the railroad debts of counties, townships, cities, and towns' in force April 16, 1869."
"In testimony whereof I have hereunto subscribed my name, and affixed the seal of my office, the day and year aforesaid."
"[Seal]"
"C. E. Lippincott, Auditor P.A."
The coupons attached were in the ordinary form of such instruments, being simply an acknowledgment of so much due at a given date, for interest on he bond.
The statutes and constitutional provisions bearing upon the question are the following: First. The act incorporating the Cairo & Vincennes Railroad Company, passed March 6, 1867 (Private Laws of Illinois, 1867, vol. 2, p. 558), the 10th section of which authorized towns, cities, or counties through or near which the railroad should pass to subscribe for and take stock in the company and issue bonds in payment for such stock of $500 each, and required, as a condition of such subscription, a majority of the legal votes cast at an election held upon the question. Second. The General Railroad Law of November 6, 1849, (Laws of Illinois, 1849, second session, p. 18), authorizing cities and counties to subscribe for stock in clubjuris
railroad companies, and to pay for such stock in bonds. Third. An act passed February 9, 1869, amending the act incorporating the Cairo and Vincennes Railroad Company (vol. 3, Private Laws of Illinois, 1869, p. 259), the third section of which is as follows:
"SEC. 3. Be it further enacted that all contracts made by towns, cities, and counties, into, through, or near which the Cairo and Vincennes railroad shall run, whereby, as an inducement for the construction of said railroad, such towns, cities, and counties agreed, upon the completion of certain portions of said railroad, to sell to the said company at a nominal price, the stock of said company which such towns, cities, or counties, by a vote of their electors, had theretofore subscribed and agreed to issue bonds in payment thereof, thereby in effect agreeing to make a donation to said company of certain amounts of the bonds of such towns, cities, or counties, as an inducement for the construction of said railroad, are hereby declared to be valid and binding upon such towns, cities, and counties, and shall be carried into effect, in good faith by the same, and all orders and notices of election, and elections and returns of such elections in respect to such subscriptions of stock to said company, in any such towns, cities, and counties, are hereby declared to be valid and binding upon such towns cities, and counties."
Fourth. An act approved April 16, 1869, to fund and provide for paying the railroad debts of counties, townships, cities, and towns. (Public Laws, Illinois, 1869, p. 316.) That act authorized the registering of bonds by the state auditor. Section 7 forbade the registry, unless the debt was authorized by a majority of the legal votes cast at an election duly held, and until the railroad aided had been completed, and cars run thereon, and all conditions prescribed in the subscription had been fully complied with. It then continued as follows:
"And the presiding judge of the county court, or the supervisor of the township, or the chief executive officer of the city or town, that shall have issued bonds to any railway or railways, immediately upon the completion of the same near to, into, or through such county, township, city, or town,
as may have been agreed upon, and the running of the cars thereon, shall certify under oath that all the preliminary conditions in this act required to be done to authorize the registration of such bonds and to entitle them to the benefits of this act have been complied with, and shall transmit the same to the state auditor with a statement of the date, amount, number, maturity, and rate of interest of such bonds, and to what company and under what law issued, and thereupon the said bonds shall be subject to registration by the state auditor as is hereinbefore provided."
Fifth. These sections of the Constitution of 1870:
"No county, city or town, township, or other municipality shall ever become subscriber to the capital stock of any railroad or private corporation, or make donation to or loan its credit in aid of such corporation. provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption."
1 Starr & Curtis' Stat. 167.
"Article 9, Section 12"
"No county, city, township, school district, or other municipal corporation shall be allowed to become indebted in any manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five percentum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness. Any county, city, school district, or other municipal corporation incurring any indebtedness as aforesaid shall, before or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same. This section shall not be construed to prevent any county, city, township, school district, or other municipal corporation from issuing their bonds in compliance with any vote of the people which may have been had prior to the adoption of this constitution, in pursuance of any law providing therefor."
1 Charters and Constitutions 4986; 1 Starr & Curtis' Stat. 153.
"Schedule"
"That no inconvenience may arise from the alterations and amendments made in the constitution of this state, and to carry the same into complete effect, it is hereby ordained and declared:"
"Section 1. That all laws in force at the adoption of this Constitution, not inconsistent therewith, and all rights, actions, prosecutions, claims, and contracts of this state, individuals, or bodies corporate, shall continue to be as valid as if this Constitution had not been adopted."
1 Charters and Constitutions 491; 1 Starr and Curtis' Stat. 168. clubjuris