each one. So here one township through which the railroad was to pass, expecting to be largely benefited by its construction, might give its bonds and impose the tax requisite to meet the principal and interest, while another township similarly situated might refuse to do so. The rule would have no application to the latter. The 2d and 14th clauses of article 18 prescribe that when private property is taken for public use just compensation shall be made to the owner. These provisions relate to the exercise of the right of eminent domain.

It does not belong to courts to interpolate constitutional restrictions. Our duty is to apply the law, not to make it. All power may be abused where no safeguards are provided. The remedy in such cases lies with the people, and not with the judiciary.

We pass by, without remark, the point whether in cases like this the public or private character of the work is not a legislative rather than a judicial question.

The

It is insisted that the invalidity of the statute has been determined by two judgments of the The 13th clause of article 15 declares that Supreme Court of Michigan, and that we are 676*] "the *Legislature shall provide for the bound to follow those adjudications. People v. incorporation and organization of cities and vil- | Salem, 20 Mich., 452; Bay City v. Treasurer, 23 lages, and shall restrict their powers of taxa- Mich., 499. We have examined those cases with tion, borrowing money, contracting debts and care. With all respect for the eminent tribunal loaning their credit." The power here in ques- by which the judgments were pronounced, we tion was exercised by a township. The language must be permitted to say that they are not satisof this clause clearly implies that the powers to factory to our minds. We think the dissenting be restricted may be exercised; and what is im- opinion in the one first decided is unanswered. plied is as effectual as what is expressed. U. S. Similar laws have been passed in twenty-one v. Babbit, 1 Black, 61, 17 L. ed. 96. Congress States. In all of them but two, it is believed can pass no laws but such as the Federal Con- their validity has been sustained by the highest stitution expressly, or by necessary intendment, local courts. It is not easy to resist the force of permits. such a current of reason and authority. question before us belongs to the domain of general jurisprudence. In this class of cases this court is not bound by the judgment of the courts of the States where the cases arise. It must hear and determine for itself. Here, commercial securities are involved. When the bonds were issued, there had been no authoritative intimation from any quarter that such statutes were invalid. The Legislature affirmed their validity in every Act, by an implication [*678 equivalent in effect to an express declaration. And during the period covered by their enactment, neither of the other departments of the government of the State lifted its voice against them. The acquiescence was universal. Gelpcke v. Dubuque, 1 Wall., 175, 17 L. ed. 520.

The legislative power of a State extends to everything within the sphere of such power, except as it is restricted by the Federal Constitution or that of the State. In the present case we have found nothing that in our judgment warrants the conclusion that the Act in question is wanting in validity by reason of its unconstitutionality.

But it has been argued that aside from any constitutional prohibition the Legislature had no power to authorize the imposition of a tax for any other than a public purpose, and that this Act is not within that rule. Conceding, for the purposes of this opinion, the soundness of the first proposition, the second can by no means be admitted.

Though the corporation was private, its work was public, as much so as if it were to be constructed by the State. Private property can be taken for a public purpose only, and not for private gain or benefit. Upon no other ground than that the purpose is public can the exercise of the power of eminent domain in behalf of such corporations be supported. This view of the subject has been taken by the Supreme Court of Michigan. Swan v. Williams, 2 Mich., 427. But upon other grounds, we think the public character of such works cannot be doubted. Where they go they animate the sources of prosperity, and minister to the growth of the cities and towns within the sphere of their influence. Unless prohibited from doing so, a municipal corporation has the same power to aid in their construction as to procure water 677*] for its water-works, coal for its gasworks, or gravel for its streets from beyond its territorial limits. Meyer v. Muscatine, 1 Wall., 389, 17 L. ed. 566. Under the limited powers conferred by the Federal Constitution, Congress has frequently given aid in such cases. The Pacific railroads and the Louisville Canal furnish instances of such action by that body. The gift to the sufferers from the overflow of the Mississippi, and prior Acts of the kind, must also be borne in mind. Cannot a State Legislature do the same things?

In cases

The general understanding of the legal profession throughout the country is believed to have been that they were valid. The National Constitution forbids the States to pass laws impairing the obligation of contracts. properly brought before us that end can be accomplished unwarrantably no more by judicial decisions than by legislation. Were we to yield in cases like this to the authority of the decisions of the courts of the respective States, we should abdicate the performance of one of the most important duties with which this tribunal is charged and disappoint the wise and salutary policy of the framers of the Constitution in providing for the creation of an independent Federal judiciary. The exercise of our appellate jurisdiction would be but a solemn mockery. Butz v. Muscatine, 8 Wall., 579, 19 L. ed. 492.

The question here under consideration was fully considered by this court in R. R. Co. v. Otoe Co., 16 Wall., 667, 21 L. ed. 375, and in Olcott v. Supervisors, 16 Wall., 678, 21 L. ed. 382. We have no disposition to qualify any thing said in those cases. They are conclusive in the case before us.

In Sedgwick on Statutory and Constitutional Law, p. 90, it is said: "It must be further borne in mind that the invalidity of contracts made in violation of statutes is subject to the equitable

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END OF VOLUME 84.

XIX WALLACE.

19 Wall. 1-12, 22 L. 90, BARINGS v. DEBNEY.

Banks and banking.-Insolvent bank, of which State is sole stockholder, cannot object to any disposition of its assets prescribed by legislature; creditors alone can question validity of act, p. 8.

Banks and banking.- Legislative act appropriating assets of insolvent State bank to satisfy certain debts of bank, makes bank a trustee, and invests assenting beneficiaries with contractual right that trust shall be performed, p. 9.

Applied in McKee v. Lamon, 159 U. 8. 322, 40 L. 167, 16 S. Ct. 13, to broad proposition that money received for delivery to another is charged with enforceable trust in his favor.

Constitutional law. Act of legislature appropriating assets of insolvent State bank to pay State's debts is invalid as impairing obligation of contracts with bank's own creditors, pp. 11, 12.

Cited in Lamb v. Pannell, 28 W. Va. 667, assets of Insolvent bank trust fund for its creditors; Pyles v. Furniture Co., 30 W. Va. 136, 2 S. E. 917, approves, but holds insolvent corporation may prefer creditors. See note, 57 Am. St. Rep. 79, on withdrawing corporation's assets.

19 Wall. 12-13, 22 L. 46, HODGES V. VAUGHAN.

Appeal and error.- Where sole defect in transcript is lack of clerk's certificate that it contains complete record, certiorari is not proper remedy, but leave will be granted to withdraw transcript and apply to clerk below for necessary certificate, p. 13.

Approved in Meyer v. Mansur, etc., Co., 85 Fed. 876, 52 U. S. App. 478, motion to dismiss granted when certificate shows papers are true copies, but not that record complete; Nashua, etc., R. R. v. Boston, etc., R. R., 61 Fed. 241, 21 U. S. App. 50, motion to dismiss denied, certificate shows certain parts of record omitted on request, but not shown to be material.

19 Wall. 13-17, 22 L. 144, STOWE v. UNITED STATES.

Estoppel. One who suffers action to be brought, co-operates in Its prosecution, and allows settlement to be made on basis of truth of statements in petition, cannot later deny their truth, because his interest in subject-matter is left unprotected by settlement, p. 16.

223

U. S. Notes 19 Wallace, 22 L. ed. 234-66 p.

Approved in Brigham Young Trust Co. v. Wagener, 13 Utah, 241, 44 Pac. 1031, one who by silence, word or deed injuriously misleads another may not contradict original representations.

Principal and agent.- Agent having brought suit under de fective power of attorney, but the principal having recognized his authority, a settlement made with such agent held to preclude principal from subsequent amended proceedings, p. 17.

19 Wall. 17-20, 22 L. 46, SALOMON v. UNITED STATES.

United States.- Act of 1862, requiring contracts for military supplies to be in writing, is not infringed by officer in charge accepting delivery of supplies after day stipulated in written contract; nor is verbal agreement to extend time of performance invalid, pp. 19, 20.

United States. Though act of 1862 requires contracts for mili. tary supplies to be in writing, contract to pay value of produce received and receipted for by quartermaster in authority will be implied when government uses part and suffers remainder to spoil; in absence of testimony, value is presumed to be that fixed in quartermaster's voucher, p. 20.

Doctrine extended to hold municipalities liable for services rendered of which corporation has availed itself, in; Ellsworth v. Rossiter, 46 Kan. 242, 26 Pac. 675, Beers v. Dalles City, 16 Or. 342, 18 Pac. 840, and Cincinnati v. Cameron, 33 Ohio St. 371. Cited in Swigett v. United States, 78 Fed. 460, to point that United States can be sued on implied contract; and arguendo in Railroad Co. v. United States, 101 U. S. 549, 25 L. 1070, and Bond v. United States, 42 Fed. 781.

Distinguished in Coleman v. United States, 152 U. S. 99, 38 L. 369, 14 S. Ct. 474, promise to pay implied only when payment may reasonably be expected; Camp v. United States, 113 U. S. 654, 28 L. 1083, 5 S. Ct. 689, contract will not be implied to pay one who has not title to goods.

19 Wall. 20-32, 22 L. 49, MCCARTHY v. MANN.

Public lands Deeds.- Defective entry of public land by A., having been cured by act of Congress, and A.'s title having previously passed by successive deeds through B. and C. to D., the last being merely quitclaim deed, the curative statute enacted that A.'s confirmed title should inure to his grantees; held, D. and not C. took the title, notwithstanding C.'s mere quitclaim deed, p. 32.

Approved in Dunn v. Barnum, 51 Fed. 358, 10 U. S. App. 86. where same act under consideration as in principal case; German Ins. Co. v. Hayden, 21 Colo. 137, 52 Am. St. Rep. 211, 40 Pac. 456, to point of authority of commissioners to set aside land entry; Dunn v. Barnum, 51 Fed. 361, 10 U. S. App. 86, to point that grantee under quitclaim deed is not a bona fide purchaser without notice.

ANN

19 Wall. 32-37, 22 L. 96, ZANTZINGERS v. GUNTON.

--

Banks and banking. Statutory prohibition against bank or trustees thereof holding title to real estate, not infringed by individual member of board of bank trustees taking title in trust to sell and turn proceeds over to bank trustees, p. 37.

Not cited.

19 Wall. 37-41, 22 L. 62, BULKLEY v. UNITED STATES.

Contracts.- Notice of intention of government to present supplies for transportation on certain day, given under terms of general contract for government transport, does not, though assented to, constitute an agreement so to do; and on failure to require transportation, action for damages in amount of profits possible to have been earned, cannot be maintained, p. 40.

Approved in Cincinnati Gas Co. v. Western, etc., Co., 152 U. S. 206, 38 L. 413, 14 S. Ct. 525, and Howard v. Stillwell, etc., Co., 139 U. S. 206, 35 L. 150, 11 S. Ct. 503, to general rule that anticipated profits not recoverable as damages for breach of contract.

Damages. Government transport contractor erroneously not!fied by government to be ready for certain transport work on certain day, held entitled to reimbursement for loss of time, trouble and expense in preparing for it, pp. 40-41.

Followed in Parish v. United States, 100 U. S. 507, 25 L. 766, analogous case, where order acted upon by contractor was withdrawn; United States v. Behan, 110 U. S. 343, 28 L. 170, 4 S. Ct. 83, as rule of damages when, without contractor's fault, other party ends contract before completion.

19 Wall. 41-58, 22 L. 52, THE WENONA.

Collision. Rules of navigation are obligatory upon vessels ap proaching, from time necessity for precaution begins, and while means and opportunity to avoid danger remain, p. 52.

Followed in The Breakwater, 155 U. S. 264, 39 L. 143, 15 S. Ct. 102, and The Chatham, 52 Fed. 399, 8 U. S. App. 104.

Collision.- Errors committed at moment of collision are to be less strictly regarded than those which may have superinduced them, committed when vessels further apart, p. 54.

Appeal and error.- In absence of reason upon record for imputing willful falsehood to witnesses, their direct testimony wil stand as against circumstantial inferences to the contrary, p. 58. Approved in Wolf v. Schooner Bertie Calkins, 2 Fed. 804.

19 Wall. 58-62, 22 L. 70, KNOWLES v. GASLIGHT, ETC., CO. Court of general jurisdiction will be presumed to have had jurisdiction of cause until contrary appears, p. 61.

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