Bissell v. Spring Valley Township
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110 U.S. 162 (1884)
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U.S. Supreme Court
Bissell v. Spring Valley Township, 110 U.S. 162 (1884)
Bissell v. Spring Valley Township
Submitted January 2, 1884
Decided January 21, 1884
110 U.S. 162
1. A statute of the Kansas directed county commissioners of a county, when the electors of a township in the county should have determined, in the manner provided in the act, to issue bonds in payment of a subscription to railway stock, to order the county clerk to make the subscription and to cause the bonds to be issued in the name of the township, signed by the chairman of the board, and attested by the clerk under the seal of the county. Held that the signature of the clerk was essential to the valid execution of the bonds, even though he had no discretion to withhold it.
2. When bonds have been issued by a township in payment of a subscription to railway stock, under a statute which makes the signature of a particular officer essential, without the signature of that officer they are not the bonds of the township, and the municipality is not estopped from disputing their validity by reason of recitals in the bond setting forth the provisions of the statute and a compliance with them.
3. A statute of Kansas authorized the auditor of a state to receive from the holder of bonds issued by a township in payment of a subscription to
railway stock his bonds, and to register the same, and directed the auditor to notify the officers issuing the bonds of the registration of the same, and further directed such officers to enter the fact in a book kept by them for the purpose, and then provided that "the bonds shall thereafter be considered registered bonds." Held that until the notice to the township officers and their entry of the registration in their books, the bonds were not to be regarded as registered bonds within the intent of the statute and as entitled to the benefits of the act, and that no estoppel against disputing the validity of the bonds by reason of a certificate of registration arose. Lewis v. Commissioners of Barbour County, 105 U. S. 739, distinguished from this case.
This was an action brought by the plaintiff in error to recover the amount of certain interest coupons attached to municipal bonds which, it is alleged in the petition or complaint, were made, issued, and delivered by the defendant, a municipal corporation of Kansas, to aid in the construction of a railroad running within and through its corporate limits, under and in pursuance of an act of the Legislature of the State of Kansas entitled "An act to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same," approved February 25, 1870, under and in pursuance of an order of the Board of County Commissioners of the County of Cherokee, and under an in pursuance of a vote of more than three-fifths of the qualified voters of the township, voting at an election duly held therein for such purpose, being negotiable bonds payable to bearer. It is further alleged
"That afterwards, to-wit, on December 15, A.D. 1871, each of the said bonds, with all the interest coupons thereto attached, was put upon the market and sold and delivered to bona fide purchasers for value, the same passing from hand to hand like other negotiable securities."
"That afterwards, to-wit, on April 11, A.D. 1872, each of the said bonds, with all the interest coupons thereto attached, was duly registered in the office of the Auditor of the State of Kansas, according to law, and the fact that each of the said bonds was so registered was then and there, under the hand and official seal of the said auditor, in writing duly certified and endorsed upon each of the said bonds, a copy of which said certificate and endorsement
is filed herewith, made part hereof, and marked 'Exhibit B.'"
It is also alleged that after the issuing and delivering of the said bonds and before the maturity either of the bonds or of any of the coupons sued upon, they were sold and delivered to the plaintiff for the price of ninety cents on the dollar thereof in cash.
The following is the form of the bond:
"No. ___] UNITED STATES OF AMERICA [$1,000"
"COUNTY OF CHEROKEE, STATE OF KANSAS"
"Spring Valley Township Bond"
"Know all men by these presents that Spring Valley Township, County of Cherokee, State of Kansas, acknowledges itself and is firmly bound to the Atlantic and Pacific Railroad Company in the sum of one thousand dollars, which sum the said township therein promises to pay to the said Atlantic and Pacific Railroad Company or bearer at the office of Northrop & Chick in the City of New York and State of New York on the fifteenth day of December, 1886, together with the interest on the first day of July in each and every year, until this bond matures at the rate of seven percent per annum, which interest shall be payable annually on the presentation and delivery at said office of the coupons of interest hereto attached."
"This bond being issued under and pursuant to an order of the Board of County Commissioners of Cherokee County in the State of Kansas by virtue of an Act of the Legislature of the State of Kansas approved February 25, 1870, entitled 'An act to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same,' and authorized by a vote of the people taken on the fourth day of February, 1871, as required by law, upon the proposition to subscribe one hundred and fifty thousand dollars to aid in the construction of the said railroad, which proposition was voted upon on the day aforesaid, and three-fifths of the votes of said township being cast in favor of said proposition."
"In testimony whereof, the said Board of County Commissioners of Cherokee County have executed this bond by the chairman of
said board, under the order thereof, signing his name hereunto, and by the clerk of said board attesting the same and affixing the seal of said board."
"This done at Columbus, Cherokee County, this 15th day of December, 1871."
"[Seal of Cherokee county, Kansas]"
"WM. H. CLARK"
"Chairman Board of County Commissioners"
"J. G. DUNLAVY, County Clerk"
The certificate of registration is as follows:
"I, A. Thoman, Auditor of the State of Kansas, do hereby certify that this bond has been regularly and legally issued, that the signatures thereto are genuine, and that such bond has been duly registered in my office in accordance with an act of the legislature entitled"
"An act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, or other works of internal improvement, and providing for the registration of such bonds, the registration of other bonds, and the repealing of all laws in conflict therewith,"
"approved March 2, 1872."
"Witness my hand and official seal, this 11th day of April, 1872."
"[SEAL] A. THOMAN, Auditor of State"
The defendant, in answer to the petition, pleaded the following defense:
"That it ought not to be charged with the said supposed debt by virtue of the said supposed bonds and coupons because it, by its attorneys, says that J. G. Dunlavy, whose name appears on said bonds and coupons as county clerk, never signed his name thereto or thereon, nor ever authorized any party or parties to sign his name thereto or thereon, and that said signature is not his signature."
"Nor did he affix or authorize to be affixed the seal of said County of Cherokee to said bonds or coupons."
To this the plaintiff demurred. The demurrer was overruled and, the plaintiff declining to reply, judgment was rendered for the defendant, to review which this writ of error is
prosecuted. The assignment of error relied on is that this defense being insufficient in law, the demurrer thereto should have been sustained and judgment rendered for the plaintiff.