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 County,
122 U. S. 306.
While the bonds on their face recite that they are
"issued under and pursuant to order of the County Court of
Knox
Page 147 U. S. 95
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,"
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 and 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 and 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
Page 147 U. S. 96
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 thirty to
seventy-five cents on the one hundred dollars, until the year 1875,
when it was only five cents, or one twentieth of one percent. It
was admitted that in May, 1874, a decision of the Supreme Court of
the State of Missouri was announced,
State v. Shortridge,
56 Mo. 126, by which the power of county courts to levy taxes for
the payment of bonds issued to the Missouri and Mississippi
Railroad Company was limited to one twentieth of one percent, as
prescribed in section 13 of its charter, and that the order made by
the County Court of Knox County on the 23d of April of that year,
levying seventy-five cents on the one hundred dollars, was on the
1st day of June set aside, and a levy of five cents ordered. There
was also offered in evidence a certified copy of certain leaves of
the bond register of Knox County, showing a statement of the bonded
debt outstanding January 1, 1874, on which is a minute that
$100,000 of the bonds issued to the Missouri and Mississippi
Railroad Company were "ordered by an election held 12th of March,
1867;" also a statement of the financial condition of the county,
published in a county newspaper by order of the county court, in
which was a substantially similar statement.
Upon this we notice two or three of the principal points made by
counsel for plaintiff in error. The order for the election directed
that notice thereof "be given through the
Missouri
Watchman for five weeks, and by printed handbills, publicly
exposed through out the county." It also named the second Monday in
March as the day for the election. No evidence was offered of any
printed handbills or of the publication of notice in the
Missouri Watchman. It is insisted that in the absence of
evidence, there can be no presumption that notice was given either
by handbills or in the newspaper, and secondly that between the
date of the order (February 6th) and the date of the election
(March 12th), it was not possible to make the prescribed
publication because, excluding the day of the order
Page 147 U. S. 97
and including the day of the election, there would be only
thirty-four days, or one day lacking the five full weeks. The
statutes of Missouri at that time in force provided, in accordance
with the general rule in respect to such matters, that "the time
within which an act is to be done shall be computed by excluding
the first day and including the last." General Statutes of Missouri
of 1866, p. 84, ยง 6. But the notice required for this election was
not prescribed by statute. It was fixed by order of the county
court, and, there being but thirty-four days between the day of the
order and that named for the election, it must be presumed that
what was intended was not a publication for five full weeks of
seven days each, but a publication in each of the five weeks, which
could easily be made in the thirty-four days. It cannot be supposed
that the county court directed a notice which it was impossible to
give, or that it was putting the people to the annoyance and the
county to the expense of an election which was necessarily void by
reason of an inability to comply with the terms of the order. The
order must be construed so as to make possible a valid election,
and that is accomplished by construing it, and in a reasonable way,
as requiring advertisement in five successive weekly issues of the
paper named.
Again, the election was held, the votes cast at that election
were canvassed by the proper officers, and an order made by the
county court for a subscription in accordance with the terms of the
order for the election. From these facts it may be presumed that
proper notices of the election were given, for it is a rule of very
general application that where an act is done which can be done
legally only after the performance of some prior act, proof of the
latter carries with it a presumption of the due performance of the
prior act. In
Bank of United States v.
Dandridge, 12 Wheat. 64,
25 U. S. 70, it
was said:
"The same presumptions are, we think, applicable to
corporations. Persons acting publicly as officers of the
corporation are to be presumed rightfully in office. Acts one by
the corporation which presuppose the existence of other acts to
make them legally operative are presumptive proofs of the latter. .
. . If officers of the corporation openly exercise a power
Page 147 U. S. 98
which presupposes a delegated authority for the purpose, and
other corporate acts show that the corporation must have
contemplated the legal existence of such authority, the acts of
such officers will be deemed rightful, and the delegated authority
will be presumed. . . . In short, we think that the acts of
artificial persons afford the same presumptions as the acts of
natural persons. Each affords presumptions from acts done of what
must have preceded them, as matters of right or matters of
duty."
But further, the validity of the bonds is admitted by the
answer, and therefore it is unnecessary to prove every separate
step which otherwise might be required in order to show the
legality of this issue. The inquiry here is under what act and by
what authority the county court issued them, and in determining
that question, any statement on the records of the county may be
competent evidence, and from all the acts and circumstances it is
to be determined under which act the county was proceeding. Suppose
the bonds contained no recitals, but simply an acknowledgment of
indebtedness, and in a suit on them their validity was admitted,
and there were two statutes, under either of which the bonds might
have been issued, a single entry on the records of the county might
be sufficient, in the absence of all other testimony, to support a
finding that the bonds were issued under one, rather than the
other, statute. All that can be said from the omission to introduce
in evidence a full recital of all the steps necessary to make a
perfect proceeding under the general statute is that such omission
detracts from the force of the testimony from the records and
proceedings actually produced. In this respect, it will be noticed
that there is a marked difference between an omission to prove one
step that such omission detracts from the force of that such step
was not taken, for, if it were established that one essential step
in a course of proceeding required by one statute was not taken, it
might well be held that the bonds admitted to be valid were in fact
issued under the other statute.
This brings us to notice a point made in reference to the
instructions. There was testimony tending to prove that a
Page 147 U. S. 99
registration had been made of the qualified voters of the
county, and that it showed over 1,000 such voters. The vote cast at
the election was, for the subscription 510 and against 98 -- that
is, more than two-thirds of those who actually voted assented to
the subscription, but not two-thirds of the qualified voters as
shown by the registration. Several decisions of the Supreme Court
of Missouri are cited, the latest being that of
State v.
Harris, 96 Mo. 29, in which that court has held that
two-thirds of those actually voting is not sufficient, and that it
must appear that two-thirds of the qualified voters, as ascertained
by the registration, assented to the subscription, and it is said
that this Court follows the settled construction placed upon its
statutes by the supreme court of a state. This question has been
thoroughly discussed in this Court, and it is unnecessary to enter
into any reexamination of it. These decisions were made after the
issue of the bonds, and cannot be deemed controlling.
Cass
County v. Johnston, 95 U. S. 360;
Daviess County v. Huidekoper, 98 U. S.
98;
Douglass v. Pike County, 101 U.
S. 677;
Carroll County v. Smith, 111 U.
S. 556.
Another matter is this: it will be remembered that the court
permitted the plaintiff to offer in evidence the tax levies for
several years after the issue of the bonds, a copy of the entries
made on the bond register of the county in 1874, showing the bonded
indebtedness of the county, and a financial statement of the
county, published by direction of the county court. It also
instructed the jury that they might consider these matters in
determining what was the intent of the county court in issuing the
bonds -- "that is to say, whether they intended to act exclusively
under the railroad charter, or under authority conferred by a
popular vote, or under both powers." It was not said by the court
that these matters created an estoppel upon the county, or
concluded it as to the question, but simply that they were matters
to be considered. It is a familiar rule that the interpretation
given to a contract by the parties themselves is competent, and
oftentimes very weighty, evidence in determining its meaning and
force. So in a matter of this kind, the whole conduct of the
county, both before,
Page 147 U. S. 100
at the time, and after the issue of the bonds may be shown to
aid in determining under what statute and by what authority the
county proceeded in the issue of these bonds.
Chicago v.
Sheldon, 9 Wall. 50,
76 U. S. 54;
Steinbach v.
Stewart, 11 Wall. 566,
78 U. S. 576;
Canal Company v.
Hill, 15 Wall. 94;
Merriam v. United
States, 107 U. S. 437;
United States v. Gibbons, 109 U.
S. 200.
Again, it is urged that the order for the election was invalid
inasmuch as no corporation was named as the proposed recipient of
the subscription; but it has been held to the contrary, and that it
is sufficient if the route is designated, leaving to the county
authorities the selection of the particular corporation to be the
recipient of the subscription.
Commissioners v. Thayer,
94 U. S. 631;
Scipio v. Wright, 101 U. S. 665.
Another matter requires notice, and it is of great significance:
the Constitution of the State of Missouri, adopted July 4, 1865,
article 11, section 14, provided that
"The General Assembly shall not authorize any county, city, or
town to become a stockholder in, or to loan its credit to, any
company, association, or corporation, unless two-thirds of the
qualified voters of such county, city, or town at a regular or
special election, to be held therein, shall assent thereto."
At the October term, 1867, of the Supreme Court of Missouri, the
case of
State v. Macon County Court, 41 Mo. 453, was
decided, in which it was held that the constitution had no
retroactive effect upon statutes passed before its adoption, and
that therefore, under the Missouri and Mississippi Railroad Company
Act, passed February 20, 1865 -- a few months before the adoption
of the constitution -- there was power in the county authorities to
subscribe without the assent of the voters. It may well be
believed, as asserted by counsel for defendant in error, that until
that decision was announced, the understanding that the prohibition
in the constitution superseded all unexecuted authority given by
prior charters was so general that no county court would have dared
to subscribe stock and issue bonds without the assent of two-thirds
of the qualified voters. This subscription was made, some of the
bonds issued, as well as the vote held, before the decision in the
Macon County Court case, and it is difficult to believe
that the county court did not issue
Page 147 U. S. 101
these bonds in reliance upon the authority given them by the
vote of the people, in pursuance of the general laws of the state,
although referring on the face of the bonds to the Missouri and
Mississippi Railroad Company act, which specially authorized the
company to receive, and the counties through which it ran to make,
subscriptions. It is very likely that the county court had in mind
the special act creating the Missouri and Mississippi Railroad
Company, as well as the general law and the vote of the people
under it, and that it meant to exercise all the authority conferred
by both. It is enough for this case that the vote of the people
authorizing this issue of bonds was given, and that the county
court acted in reliance thereon, for by assent, through their vote,
to such issue of bonds, the people, in the way prescribed by the
statutes of the state, in effect consented that a levy beyond the
meager one provided for by the Missouri and Mississippi Railroad
Company act might be resorted to for the payment of these
bonds.
These are the substantial matters involved in this litigation.
We find no error in the proceedings of the circuit court, and its
judgment is
Affirmed.
