1. The submission to the voters of a county, under the Code of
Iowa, of the question
"whether the county judge at the time of levying the annual
taxes shall levy a special tax of a specified number of mills on a
dollar of valuation for the purpose of constructing a courthouse in
the county, the tax to be levied from year to year until a
sufficient amount is raised for said purpose, not to exceed"
&c., is (by implication) a submission of the question
whether money shall be
borrowed to build the courthouse,
and negotiable bonds be sold as the means of borrowing; this though
the same section of the code enacts that the county judge may
submit to voters the question "whether money may be
borrowed to aid in the
Page 83 U. S. 7
erection of public buildings" and though the question submitted
to the voters as above mentioned be submitted only in virtue of an
enactment immediately following that
"when the question so submitted involves the expenditure of
money, the proposition of the question must be accompanied by a
provision to levy a tax for the payment thereof in addition to the
usual taxes."
This, at least as respects the holders,
bona fide and
for value, of bonds so issued, when the bonds declare on their face
that "all of said bonds are issued in accordance with a vote of the
people of said county."
2. The county judge being, by the Code of Iowa, the officer
designated to decide whether the voters have given the required
sanction to the borrowing of money and issuing of bonds, his
execution and issue of bonds setting forth on their face that "all
of said bonds are issued in accordance with a vote of the people of
said county," and that "the people have voted the levying of
sufficient taxes" &c., is conclusive evidence against the
county of the popular sanction so far as respects holders
bona
fide and for value.
3. A power given to issue county bonds carries with it a power
to make them payable beyond the limits of the county for which they
are issued, as also beyond the limits of the state in which the
county is, and to sell them beyond such limits.
4. It carries with it also a right to cancel bonds previously
given to a contractor with the county but not yet put by him on the
market, and to issue to him new ones in a different form.
5. Under the Code of Iowa, which enacts that in case of the
"absence" of the county judge, the county clerk shall supply his
place, the said judge is not, when, owing to his absence from the
state, the county clerk is acting as county judge in the county --
holding a term of the county court there, issuing county warrants,
and doing other business in the county in discharge of his duties
as acting county judge -- so wholly superseded in his office as
that he may not, when beyond the limits of the county, do certain
ministerial acts, as
ex. gr., execute and issue bonds,
whose purpose is to advance the concerns of the county, and for
that purpose buy, at the place where he is, a new county seal, the
Code having authorized the county judge to procure one.
The Code of Iowa of 1851, section 98, thus enacts:
"Each county now or hereafter organized is a body corporate for
civil and political purposes only, and as such may sue and be sued;
shall keep a seal such as provided by law; may acquire and hold
property and make all contracts necessary or expedient for the
management, control, and improvement of the same, and for the
better exercise of its civil and political powers
Page 83 U. S. 8
may take any order for the disposition of its property, and may
do such other acts and exercise such other powers as may be allowed
by law."
By section 106, the county judge is made:
"The accounting officer, and general agent of the county, and as
such is authorized and required . . . to take the management of all
county business; . . . to audit all claims for money against the
county; to draw and seal with the county seal all warrants on the
treasurer for money to be paid out of the county treasury; . . . to
superintend the fiscal concerns of the county, and secure their
management in the best manner."
By section 129, the county judge as a county court has
power:
"To provide for the erection and reparation of courthouses,
jails, and other necessary buildings within and for the use of the
county."
By sections 114-116, it is enacted that:
"The county judge may submit to the people of his county at any
regular election or at a special one called for that purpose the
question
whether money may be borrowed to aid in the erection
of public buildings."
"When the question so submitted involves the borrowing or the
expenditure of money, the proposition of the question must be
accompanied by a provision to levy a tax for the payment thereof,
in addition to the usual taxes. No vote adopting the question
proposed, will be of effect unless it adopt the tax also."
Section 119 proceeds:
"The county judge on being satisfied that the above requirements
have been substantially complied with and that a majority of the
votes cast are in favor of the proposition submitted,
shall
cause the proposition and result of the vote to be entered at
large on the minute book, and a notice of its adoption to be
published for the same time and in the same manner as is above
provided for publishing the preliminary notice,
and from the
time of entering the result of the vote in relating to borrowing or
expending money, . . . the vote and the entry thereof on the county
records shall have the force and effect of an act of the General
Assembly. "
Page 83 U. S. 9
Section 94 enacts that:
"The county judge of each county having a seal is required to
obtain, as soon as practicable, for his county, a new seal of the
same size with the present one, and with the same device, but the
inscription on which shall be 'seal of the county of _____ Iowa'
(naming the county), in capital letters; and each new seal
hereafter obtained, shall be of the same description,"
&c.
Section 111 enacts that:
"In case of a vacancy in the office of county judge, and in the
case of the absence, inability, or interest of that officer, the
prosecuting attorney of the county shall supply his place, . . .
and when the prosecuting attorney cannot act the county clerk shall
fill the place of the judge."
The office of "prosecuting attorney of the county" was
afterwards abolished.
These provisions of the Code being in force, Robert Clark, the
County Judge of Winnebago, submitted to the voters of that county,
at a special election held on the 6th day of March, 1860, the
question of levying a tax of seven mills on the dollars, for the
purpose of building a courthouse, the said tax to be levied
annually, not exceeding ten years, until a sufficient amount was
raised for the said purpose. The whole number of votes at the
election was twenty-nine, of which twenty-four were in favor of the
proposition.
No proposition was ever submitted to the voters to borrow money
or to issue bonds for that or any other purpose.
The county judge then made a contract with one Martin Bumgardner
to build a courthouse for the county, and on account of the
contract made and delivered to him on the 9th day of March, 1860,
bonds in the name of the county for $20,000, the amount for which
the courthouse was to be built.
Afterwards he went to New York with Bumgardner, and professing
to act as county judge of the county, made and issued to Bumgardner
new bonds for $20,000, which new bonds differed in the amount of
each, in time of payment, and in the amount of coupons, and in
other particulars, and
Page 83 U. S. 10
he had a seal made at New York which he called the seal of the
county. He then and there signed the said bonds and affixed the
said seal to them, and delivered them to Bumgardner. [
Footnote 1]
The bonds thus issued, and which by their terms were payable to
Martin Bumgardner or bearer, contained this recitation on their
face:
"All of said bonds are issued in accordance with a vote of the
people of said county and in pursuance of an order of the County
Court of Winnebago County, legally entered of record in the office
of the county judge on the 9th day of March, A.D. 1860, in
fulfillment of a contract entered into with said Martin Bumgardner,
for the erection of a courthouse for said County of Winnebago. And
the people of said county have voted the levying of sufficient
taxes, from year to year, to pay the principal and interest of each
and all of said bonds as the same mature and become payable."
And they ended with a teste thus:
"In witness whereof I, Robert Clark, county judge of said
county, have hereto set my hand and affixed seal of the said
county, the 9th day of March, A.D. 1860."
"ROBERT CLARK"
"[SEAL] County Judge"
The old bonds were now, in accordance with a proposition made by
Clark when the new ones were spoken of, delivered up to Clark at
New York, and were afterwards cancelled.
While Clark was in New York, making and delivering the new
bonds, the clerk of the District Court of Winnebago
Page 83 U. S. 11
was acting as county judge in said county, and held a term of a
county court, and issued county warrants, and did other business in
discharge of his duties as acting county judge.
The new bonds coming into the possession of one Lynde, who
purchased them for value, without notice of any defense to them, he
dying left them by his last will to his son; and neither principal
nor interest of the bonds being paid, the son sued the county on
them in the court below.
The facts being found by the court essentially as above stated,
the court gave judgment on them for the county. To this judgment
the plaintiff excepted.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The case involves the validity of certain bonds issued by the
judge of the County of Winnebago. Such cases have been numerous in
this Court. The one before us, though new in some of its aspects,
presents no point which has not been substantially determined in
preceding cases. The parties waived a jury, and the court,
according to the provisions of the statute upon the subject, found
the facts. The findings are set forth in the record. The
proposition for us to decide is, whether the facts found warrant
the judgment given.
The Code of Iowa of 1851 [
Footnote 2] authorizes the county judge, sitting as the
County Court, "to provide for the erection and reparation of
courthouses, jails, and other necessary buildings within and for
the use of the county."
In Iowa every county is a body corporate. [
Footnote 3]
In
Clapp v. County of Cedar, [
Footnote 4] it was said by the supreme court of the
state that the office of county judge being created and his powers
and duties defined by statute, the principles of the law of agency,
where those powers and duties are drawn in question, have no
application; that "he
Page 83 U. S. 12
is the living representative and embodiment of the county," and
that "his acts are the acts of the corporation." In
Hull &
Argalls v. County of Marshall, [
Footnote 5] it was held that, by virtue of his general
authority, he might contract for the building of a courthouse, to
be paid for out of the revenue of the county, but that when a debt
was to be incurred for that purpose special authority must be
conferred by a popular vote in the manner provided by the statute.
It was further held that where a loan was thus authorized, the form
of the securities not being prescribed, negotiable bonds might be
issued.
The statute provides that the judge may submit to the people, at
a regular or special election, "the question whether money may be
borrowed to aid in the erection of public buildings," and other
questions not necessary to be mentioned; and that "when the
question so submitted involves the borrowing or expenditure of
money" it "must be accompanied by a provision to lay a tax for the
payment thereof," and that "no vote adopting the question proposed
will be of effect unless it adopt the tax also." [
Footnote 6]
Upon looking into the record in this case we find that the
question submitted to the voters was
"whether the county judge, at the time of levying the taxes for
the year 1860, should levy a special tax of seven mills on a dollar
of valuation, for the purpose of constructing a courthouse in said
county, and said tax to be levied from year to year until a
sufficient amount is raised for said purpose, not, however, to
exceed ten years."
There was the requisite majority in favor of the proposition. It
was expressed in this formula that a courthouse was to be built,
and we think it was implied that money was to be borrowed to
accomplish that object. Otherwise the vote gave no authority which
did not already exist, and was an idle ceremony. The statute
authorized an appeal to the voters only that they might give or
refuse authority to incur a debt. It could not have been intended
that the erection should be delayed until a sum
Page 83 U. S. 13
sufficient to pay for the structure had been realized from the
tax authorized to be imposed, or that the work should proceed only
pari passu with the progress of its collection from year
to year. What is implied is as effectual as what is expressed.
[
Footnote 7] Viewing the
subject in the light of the statutory provisions and of the action
of the people, we cannot say that the bonds were issued without due
authorization.
But if the authority were doubtful, there are other facts
bearing upon this point which, in our judgment, are conclusive. The
county judge is the officer designated by the statute to decide
whether the voters have given the required sanction. He executed
and issued the bonds, and the requisite popular sanction is set
forth upon their face. It is a settled rule of law that, where a
particular functionary is clothed with the duty of deciding such a
question, his decision, in the absence of fraud or collusion, is
final. It is not open for examination, and neither party can go
behind it. Here the bonds are in the hands of a
bona fide
purchaser, and under the circumstances he was not bound to look
beyond the averment on their face.
It is not a valid objection that the bonds were made payable and
were sold beyond the limits of the County of Winnebago and of the
state of Iowa. The power to issue them carried with it authority to
the county judge as to both these things -- to do what he deemed
best for the interests of the county for which he was acting.
These points have been so frequently ruled in this way that it
is needless to cite authorities to support them.
It was competent for the county judge to visit New York for
purposes connected with the proper disposal of the bonds. A statute
of the state authorized him to procure a seal, and prescribed
certain regulations to which all such seals should conform. While
there, he might well take up bonds which had been previously
issued, but not put on the market, and give others in their place,
affixing to them a seal there procured for that purpose. There is
nothing in the statutes of
Page 83 U. S. 14
Iowa forbidding either, and we are aware of no principle of
general jurisprudence which was violated by such a proceeding.
Certainly the county could sustain no injury by the change, and it
has therefore no right to complain. At most there was only an
irregular execution of a power of the existence of which we
entertain no doubt. Admitting an irregularity to have occurred it
certainly cannot affect the rights of a holder for value without
notice.
It is insisted that the county judge was
functus
officio at the time he issued the bonds in question, and that
they are for this reason void.
The statute of the state provides that, in case of the absence
of that officer, the county clerk shall fill his place. The absence
spoken of is doubtless absence from the county seat. In that event,
unlimited authority is given to the clerk to act as his substitute.
But it is not declared that the judge shall be regarded as out of
office while absent, or that he shall do no official act during
that period. Judicial power is necessarily local in its nature, and
its exercise to be valid must be local also. But it is otherwise as
to many ministerial acts, and different considerations apply where
they are drawn in question. It does not appear that there was any
conflict between what the judge did abroad and what the clerk did
at home. All the judge did was purely ministerial in its character,
and we see no sufficient reason for holding that to this extent he
did not bring with him his official character and exercise his
official authority. He did not for the time being wholly abdicate
his office. Certain powers with which it was clothed fell into
abeyance, and continued in that state until his absence ceased. The
authority to do all that he did in New York touching the bonds, we
hold not to have been in this category. [
Footnote 8]
Judgment reversed and the cause remanded with directions to
enter a judgment for the plaintiff in error.
Page 83 U. S. 15
[
Footnote 1]
The finding of facts by the court below did not state any reason
for the cancellation of the old bonds and the issue of new ones,
nor any history of the new seal bought in New York. The bill of
exceptions, however, stated that the
defendant (the
county) offered to show that Clark, "finding that the original
bonds could not be negotiated," had other bonds printed, purchased
a seal &c.; "that the seal thus obtained in New York was
brought back to Winnebago County, and was by Bumgardner sold to the
county for $4, and had ever since been used as the county seal."
The plaintiff objected to all such testimony as irrelevant; but the
court admitted it -- REP.
[
Footnote 2]
Chapter 15, § 129, p. 26.
[
Footnote 3]
Idem, chapter 14, § 93, p. 19.
[
Footnote 4]
5 Ia. 15.
[
Footnote 5]
12 Ia. 142.
[
Footnote 6]
Code of 1851, chapter 15, §§ 114-116, pp. 23, 24.
[
Footnote 7]
United States v.
Babbit, 1 Black 55.
[
Footnote 8]
Galveston Railroad v.
Cowdrey, 11 Wall. 459.
MR. JUSTICE FIELD (with whose views and dissent concurred the
CHIEF JUSTICE and MR. JUSTICE MILLER), dissenting.
I am compelled to dissent from the judgment of the majority of
the Court in this case, upon the following grounds:
1st. The county judge had no power to issue bonds binding upon
the county, without previous authority conferred by a vote of the
people. Such is the construction given to the statutes of Iowa,
which are supposed to confer such power, by the supreme court of
that state, and that construction is obligatory upon us. Here the
only question ever submitted to the voters of the county was
whether a tax of seven mills on the dollar should be levied for the
purpose of building a courthouse; and the only power conferred was
to levy such a tax. I cannot find in this vote any authority in the
county judge to issue bonds of the county for constructing a
courthouse, payable at different periods, and then to take up the
bonds by issuing new bonds drawing a larger interest than the
first, and differing in amount and time of payment, and providing
that a failure to pay the interest as it matures shall cause the
entire principal to become due.
2d. As the bonds were issued without the authorization of a vote
of the people, the county is not estopped to deny their validity by
reason of any recitals they contain. The county judge was only an
agent of the county, acting under a special and limited authority,
the exercise of which was supposed to be carefully guarded, and he
could not enlarge that authority by any representation that he
possessed what was never conferred. The statutes of the state never
intended to make the liabilities of its counties dependent upon the
mere statements of any of its officers. The law of agency is not
different when applied to the acts of agents of municipal bodies,
in a matter so serious and delicate as the contracting of a public
debt, and when applied to the acts of agents of private
individuals. They must both keep strictly within the limits of
their power of attorney or their acts will be invalid. They cannot
cure any inherent defect
Page 83 U. S. 16
in their action arising from want of power by any extent of
recitals that they had the requisite authority. With great
deference to the opinions of my associates, this seems to me to be
a legal truism.
3d. When the bonds in suit were executed and issued the county
judge was in the City of New York, and by express provision of the
statutes of Iowa his authority and functions ceased when he was
without the state. At the time he put his signature to these
instruments another person was acting as judge in his place and was
invested with his authority, and as such officer issued county
warrants, held a term of the county court, and discharged other
duties devolved by law upon the county judge.
It seems to me that the ruling of the majority of the court in
this case, holding that the bonds, issued under circumstances
attending the issue of these, are valid obligations, binding upon
the county, goes further than any previous adjudication towards
breaking down the barriers which state legislatures have erected
against the creation of debts, and consequent increase of taxation,
by careless, ignorant, or unscrupulous public officers.
