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while this power of the commissioners to prescribe what returns should be made by savings banks was in full force, and while the construction placed by the commissioners on the law was known by public promulgation, Congress passed the Act of July 14, 1870, 16 Stat. at L.,

after on his part touching the property by virtue of his original title. The commissioners must have found that Bankston had done all that he was bound to do by his contract. An act done by a public officer which presupposes another act is presumptive proof of the latter. Bk. v. Dandridge, 12 Wheat., 70; Ward v. Bar-256, and in the 15th section used substantially rows, 2 Ohio St., 242.

The certificate issued by the recorder of land. titles under the Act of 1815, the location of that certificate and the patent, inured to Bankston and his legal representatives. Bissell v. Penrose, 8 How., 338; Hogan v. Page, 2 Wall., 605, 17 L. ed. 854; Papin v. Massey, 27 Mo., 445; Boone v. Moore, 14 Mo., 420; Carpenter v. Rannells, 45 Mo., 591; Page v. Hill, 11 Mo., 149. No other representative of Butler, whether hereditary or by contract, has any right, legal or equitable, to the premises. The testimony in the record is conclusive upon the subject.

The judgment of the Supreme Court of the State of Missouri is affirmed.

THE DOLLAR SAVINGS BANK, Plff. in Err.,

บ.

UNITED STATES.

the same language concerning the subject-matter in question as was contained in the Act of 1866; and the case stands thus: Congress required the commissioners to prescribe what returns savings banks should make. This necessarily required him to put a construction on the law. He did so, and held they were not required to return the sums held undisturbed solely for the security of these depositors. After this practical construction had been made, and acted upon for nearly four years, Congress re-enacted the tax, reduced in amount in the same words, which had received this practical construction.

It is a settled rule, that the re-enactment of the statute which has received a judicial construction in effect adopts that construction.

Kirkpatrick v. Gibson, 2 Brock., 388; Adams v. Field, 21 Vt., 256; Yates' case, 4 Johns., 359. And why not apply the same principle to a contemporaneous practical construction put upon the Act by an officer expressly required to construe it? Edward v. Darby, 12 Wheat., 206. The court erred in holding that an action of Tax on Savings Bank-action of debt for, by debt was maintainable in that court for the reUnited States-Act of 1866-assessment un-covery of the taxes in question. necessary.

(See S. C., 19 Wall., 227-241.)

1. The Act of Congress of July 13, 1866, which was an amendment to the Internal Revenue Law, authorizes the levy and collection of a tax upon the accumulated earnings of a savings bank, carried to the contingent fund.

2. An action of debt is maintainable in the circuit court by the United States for the recovery of the taxes.

3. The Government is not prohibited by anything contained in the Act of 1866 from applying any common law remedy for the collection of its dues; besides, the Act of Congress authorizes suits at law to recover unpaid taxes.

4. Such taxes need not be assessed. No other assessment than that made by the statute was necessary to determine the extent of the Bank's liability.

[No. 203.]

Argued Jan. 22, 1874. Decided Mar. 2, 1874.

IN ERROR to the Circuit Court of the United States for the Western District of Pennsylvania.

This was an action of debt, brought in the court below by the United States against a Savings Institution, to recover taxes alleged to be due under the Act of 1866, ch. 184, sec. 9, 14 Stat. at L., 138.

This was an action at the common law. The United States has no common law (Wheaton v. Peters, 8 Pet., 658), but the 34th section of the Judiciary Act provides that the laws of the several States shall be the rules of decision in the trial of actions at the common law.

the law of Pennsylvania as it existed in 1789, The first question, therefore, is whether, by an action of debt would lie to recover a tax authorized to be levied and collected by statute, which statute afforded a remedy for its assessment and collection.

I understand this question to be settled, not only in Pennsylvania, but in many States. The principle is that, where a statute creates a right and provides a particular remedy by which that right may be vindicated, no other remedy than that afforded by the statute can be used.

Mayer v. Kirby, 4 S. & R., 165; Turnpike Co. v. Brown, 2 Pa., 463; Turnpike Co. v. Martin, 12 Pa., 361; Boston v. Shaw, 1 Met., 138.

Mr. C. H. Hill, Asst. Atty-Gen. for the United States:

The statute, under which this suit was brought, is the section amending section 120, of The jury returned a special verdict, the sub- the Act of 1864, ch. 173, 12 Stat. at L., 283, 284. stance of which appears in the opinion, and the Construing this section by itself, there can circuit court rendered judgment for the United be no doubt that the Savings Bank, which is States for the sum of $5,356, from which judg-plaintit in error in this suit, falls within it. ment the defendant prosecutes this writ of error. Messrs. B. R. Curtis and Chas. E. Strong, for plaintiff in error:

The Act of Congress in question does not authorize the levy and collection of the tax in question upon the defendant Bank; and the ruling of the court to the contrary was erroneous. It is important to note in this connection that,

NOTE. Provisos in statute-see note to U. S. v. Dickson, 10 L. ed. U. S. 689.

This contingent fund, thus accumulated, falls within the body of the statute, and this construction is placed beyond a doubt by the exception in the proviso of the annual or semiannual interest allowed or paid to depositors. This construction of this part of the section is not affected by the preceding part (14 Stat. at L., 136), amending the 110th section of the Act of 1864, which was before this court for construction in the case of Oulton v. German Sav

ings & Loan Society at last term. 17 Wall. That, of course, it to be construed in [*236 109, 21 L. ed. 618.

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The facts found by the special verdict are that the plaintiff in error is a banking Institution created by the laws of the State of Pennsylvania, without stockholders or capital stock, and doing the business of receiving deposits to be loaned or invested for the sole benefit of its depositors; that the charter authorizes the retention of a contingent fund accumulated from the earnings to the extent of ten per centum of its deposits for the security of its depositors; that the Bank has earned and added to the said contingent fund, or undistributed sum, from July 13, 1866, to December 31, 1870, $107,000; and that such earnings were carried to and added to said contingent or undistributed fund semi-annually, on the first days of January and July in each year.

connection with the section of which it is a part, and it is substantially an exception. It takes out of the operation of the body of the enactment that which otherwise would be within it. It restrains the generality of the previous provisions. Its language is: "Provided that the tax upon dividends of life insurance companies shall not be deemed due until such dividends are payable; nor shall the portion of premiums returned by mutual life insurance companies, nor the annual or semi-annual interest allowed or paid to the depositors in savings banks or savings institutions be considered as dividends." But so far as it relates to savings banks, the only subject of the proviso is the annual or semiannual interest allowed or paid to the depositors. It makes no reference to the undistributed surplus which may be carried to a surplus fund. That it leaves as it was in the body of the section, subject to the tax therein imposed. And to us it appears quite plain that such was the intention of Congress. Had it been the purpose to exempt savings banks from liability to pay the tax on both the interest paid to its depositors and on all undistributed sums carried to the surplus fund, the plain mode of expressing such a purpose was to say in the proviso that such banks should be excepted from the operation of the section. If such was the purpose, why except them expressly from the operation of a part of the section only? Why take out one subject of taxation specifically, and leave the other unmentioned? And still more, If, as the plaintiff in error contends, it was intended that savings banks should pay no tax on either of the two subjects mentioned in the body of the section, why were such banks mentioned in the section at all? The broad construction of the proviso contended for makes it plainly repugnant to the body of the Act, and it is, therefore, inadmissible.

Upon this state of facts, the first question presented is whether the Act of Congress of July 13th, 1866, which was an amendment to the Internal Revenue Law (14 Stat. at L., 138), 235*] authorizes the *levy and collection of a tax upon the accumulated earnings carried to the contingent fund. It is very plain that the first intent of the Act was to impose a tax upon all the earnings, income or gains of the institutions mentioned therein. The language of its 120th section is, "There shall be levied and collected a tax of five per centum on all dividends in scrip or money thereafter declared due, whenever and wherever the same shall be payable to stockholders, policy holders or depositors, or parties whatsoever, including non-residents, whether citizens or aliens as part of the earnings, income, or gains of any bank, trust company, savings institution, and of any fire, marine, life, inland insurance company, either stock or mutual, under whatever name or style known Our attention has been called to the fact that or called in the United States or Territories, in 1867, and again in 1870, the Commissioners whether specially incorporated or existing un- of Internal Revenue construed the proviso as exder general laws; and on all undistributed sum empting savings institutions from the tax upon or sums made and added during the year to all sums added to their surplus or contingent their surplus or contingent funds." This tax funds, and that the Act of Congress of July 14, the banks, trust companies, savings institu- 1870, 16 Stat. at L., 256, which reduced [*237 tions, and insurance companies are required to internal taxation, employed substantially the pay, and they are authorized to deduct it from same language respecting savings banks as that all payments made on account of any dividends contained in the Act of 1866. In view of this, the or sums of money that may be due and payable plaintiffs in error argue that Congress required as aforesaid. It is, however, only so much of the commissioner to prescribe what returns the tax as is levied upon dividends or sums of savings banks should make; that this made it money due and payable to stockholders, policy his duty to put a construction on the law; that holders, or depositors, etc., which they are au- he did so, and held that such institutions were thorized to deduct. Thus it appears the tax is not required to return undistributed earnings laid upon two subjects-the one dividends or carried to a surplus fund, and that after this sums due and payable, and the other the undis- practical construction had been made and acted tributed surplus of gains or earnings car ied upon more than three years, Congress re-enactto a surplus or contingent fund. These ub-ed the tax, reduced in amount, in the same jects, though together making up the entire net earnings, are distinct from each other; and they are thus treated throughout the section as well as throughout other sections of the Act. If the portion of the Act which we have quoted were all, it would not admit of a doubt that both these subjects the dividends, or annual or semi-annual payments, and the sums added to the contingent fund-are made taxable.

It is argued, however, that savings institutions were relieved by the proviso to the section.

words. Hence, it is inferred, the construction given by the commissioner was adopted. It is, doubtless, a rule that when a judicial construction has been given to a statute, the re-enactment of the statute is generally held to be in effect a legislative adoption of that construction. This, however, can only be when the statute is capable of the construction given to it, and when that construction has become a settled rule of conduct. The rule, we think, is inapplicable to this case. In the first place, the deci

sions of the internal revenue commissioner can hardly be denominated judicial constructions. That officer was not required by the law to prescribe what returns savings banks were required to make. That was prescribed by the Act of Congress itself, and he had no power to dis-ed out in the statute, for he is forbidden to make pense with the requisition. There is, therefore, no presumption that his decisions were brought to the knowledge of Congress when the Act of 1870 was passed. And again; the construction he gave is an impossible one, for, as we have seen, it makes the proviso plainly repugnant to the body of the section.

We are constrained, then, to hold that the Act of Congress does impose upon the plaintiffs in error the tax, to recover which the present suit was brought.

The second error assigned is, that the circuit court erred in holding that an action of debt is maintainable in that court for the recovery of the taxes.

er remedies, and the rule, therefore, rests upon a presumed statutory prohibition. It applies and it is enforced when anyone, to whom the statute is a rule of conduct, seeks redress for a civil wrong. He is confined to the remedy pointuse of any other. But by the Internal Revenue Law, the United States are not prohibited from adopting any remedies for the recovery of a debt due to them which are known to the laws of Pennsylvania. The prohibitions, if any, either express or implied, contained in the enactment of 1866, are for others, not for the Government. They may be obligatory upon tax collectors. They may prevent any suit at law by such officers or agents. But they are not rules for the conduct of the State. It is a familiar principle that the King is not bound by any Act of Parliament unless he be named therein by special and particular words. The most general words that can be devised (for example, any person or

We do not perceive that the question present-persons, bodies politic or corporate) affect not ed by this assignment was raised or even men238*] tioned in the court below, *and it is not clear that it may first be raised here. But if it may, the answer must be that the taxes may be recovered in an action of debt brought in the circuit court.

The argument in support of the assignment of error is that the United States has no common law; that the 34th section of the Judiciary Act enacts that the laws of the several States shall be the rules of decision in the trial of actions at common law, of which debt is one; that the Act of Congress which imposes the tax on savings banks provides a special remedy for its assessment and collection, and that it is a principle of the common law of Pennsylvania, that when a statute creates a right and provides a particular remedy by which that right may be enforced, no other remedy than that afforded by the statute can be used.

It must be conceded that in the section of the Act (Act of 1866, sec. 120), which required savings banks to pay the tax, they are also required to render to the assessor or assistant assessor a list of the amount of taxes with a declaration under oath attached thereto, on or before the 10th day of the month following that in which any dividends or sums of money may be due and payable, and for any default in rendering such a list they are liable to a penalty. The Act also declares that "in case of any default in making or rendering said list or return, or any default in the payment of the tax as required, or any part thereof, the assessment and collection of the tax and penalty shall be in accordance with the general provisions of law in other cases of neglect and refusal." What those general provisions are may be seen in other sections of the Act which prescribe assessments, delivery thereof to the collectors, and distraint if necessary.

It must also be conceded to be a rule of the common law in England, as it is in Pennsylvania and many of the other States, that where a statute creates a right and provides a particular remedy for its enforcement, the remedy is generally exclusive of all common law remedies. But it is important to notice upon what the 239*] rule is founded. The reason of the rule is that the statute, by providing a particular remedy, manifests an intention to prohibit oth

him in the least, if they may tend to restrain or diminish any of his rights and interests. Magdalen College case, 11 Coke, 74; King v. Allen, 15 East, 333. He may even take the benefit of any particular Act, though not named. Case of a Fine Levied, etc., 7 Coke, 32; Pott. Dwarris, 151, 152. The rule thus settled respecting the British Crown is equally applicable to this Government, and it has been applied frequently in the different States, and practically in the Federal Courts. It may be considered as settled that so much of the royal prerogative as belonged to the King in his capacity of parens partiæ, or universal trustee, enters as much into our political state as it does into the principles of the British Constitution., Com. v. Baldwin, 1 Watts, 54; People v. Rossiter, 4 Cow., 143; U. S. v. Davis, 3 McLean, 483; U. S. v. Williams, 5 McLean, 133; Com. v. Johnson, 6 Pa. St., 136; U. S. v. Greene, 4 Mas., 427; U. S. v. Hoar, 2 Mas., 311; U. S. v. Hewes, Crabbe, 307.

It must, then, be concluded that the Government is not prohibited by anything contained in the Act of 1866 from employing *any [*240 common law remedy for the collection of its dues. The reason of the rule which denies to others the use of any other than the statutory remedy is wanting, therefore, in applicability to the Government, and the rule itself must not be extended beyond its reason. And we do not find that either in England or in Pennsylvania it has been held to be applicable. On the contrary, in England informations of debt, and exchequer informations for discovery and account, to recover duties on importations, have been of frequent occurrence, though the Acts of Parliament have provided a different remedy for enforcing the payment. Numerous such cases are reported in Bunbury's Reports 155, 299, 300, 339. See, also, Comyn, Dig., title "Debt," A, 9; 1 Rolle, 383. And in U. S. v. Lyman, 1 Mas., 482, Judge Story held that debt might be maintained in the Circuit Court for Massachusetts to recover duties upon imported goods-a doctrine re-asserted by this court in Meredith v. U. S., 13 Pet., 486.

Nor is there anything in the objection that the taxes for which judgment has been recovered in this case had not been assessed. No other assessment than that made by the statute was necessary to determine the extent of the Bank's liability. An assessment is only determining

the value of the thing taxed, and the amount of the tax required of each individual. It may be made by designated officers or by the law itself. In the present case the statute required every savings bank to pay a tax of five per cent. on all undistributed earnings made, or added 241*] during the year to their contingent funds. There was no occasion or room for any other assessment. This was a charge of a certain sum upon the Bank (Atty. Gen. v. 2 Anst., 558), and without more it made the bank

a debtor.

We think, therefore, the second assignment of error cannot be sustained. The judgment is affirmed.

Mr. Justice Bradley, dissenting:

The judgment of the court below was in favor of the defendant, also defendant here, upon demurrer to the plaintiff's replication. The case is stated as follows in the opinion of the court below:

This is an action of assumpsit on ninety coupons issued by the County of Putnam for the interest on certain bonds issued by said County. The complainant declares on these coupons, to which the defendant pleads several pleas, denying the validity of the bonds and coupons, to which the plaintiff replies, setting up certain matters by which he claims that the validity of the bonds is fully established, and also that the defendant is estopped from denying the validity of the bonds.

The material facts, eliminated from the I dissent from the judgment of the court, on pleadings, appear to be these: that on and prior the ground that an action will not lie for a tax to June 4, 1869, a corporation existed in this of the kind in question in this case, unless it be State under a special charter, known by the corfirst entered on the assessment roll. The assess-porate name of the Kankakee & Illinois River ment roll should be regarded as conclusive as to Railroad Company, with authority to construct the persons or things liable to taxation. If it and maintain a railroad from the eastern line is not, if the matter is left open so that any per- of this State by way of Momence, Kankakee, son or corporation may be prosecuted for taxes Dwight and Streeter to Bureau Junction, in at any time, it leaves the citizen exposed to Bureau County, with a capital of $100,000, submany hazards, and to the mercy of prying inject to be increased to such an amount as should formers, when the evidence by which he could be necessary to complete the road of the Comhave shown his immunity or exemption has pany; and June 4, 1869, the Board of Superperished. If an action of debt without an asvisors of the County of Putnam, through which sessment can be brought, what is the limit of the proposed line was to pass, ordered an electime within which it must be brought? To tion to be held at the usual place for holding what Statute of Limitations is the Government elections in said County, to determine whether subject? It seems to me that the decision in- said County should subscribe for $75,000 of the troduces a new principle in the system of taxa- stock of said company, conditioned that said tion, dangerous to the rights of the citizen and stock should be paid for in the bonds of said the peace and security of society. I am authorized to say that Mr. Justice Field County, bearing interest at ten per cent. per annum, payable annually; provided said road concurs in this dissent. should be located and constructed through or within one half mile of the corporate limits of the Town of Hennepin, in said County.

GEORGE NUGENT, Plff. in Err.,

v.

THE BOARD OF SUPERVISORS OF

NAM COUNTY.

(See S. C., 19 Wall., 241-253.)

The election was held, resulting in favor of said subscription; and Jan. 4, 1870, another PUT-election was called by said Board, to be held Feb. 8, 1870, to determine whether said County would subscribe for $25,000 of the stock of said railroad company, payable in the bonds of County bonds in aid of railroad-subscription said County, on the condition that said railfor stock, when unnecessary—when subscrib-road should be located within one half mile of er released. the corporate limits of the Town of Hennepin, these bonds to bear interest at ten per cent. per annum.

1. Where bonds of a county were issued in payment of the county's subscription to the capital stock of a railroad company, the fact that no subscription was formally made upon the books of the company is quite immaterial.

valid.

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2. Where the bonds were delivered and the county accepted the position of a stockholder, received certificates for the stock subscribed, voted as stockholder, and proceeded to levy a tax to pay the interest falling due on the bonds, the bonds are 3. A subscriber for the stock of a company is not released from his engagement to take it and pay for it by any alteration of the organization or purposes of the company which, at the time the subscription was made, were authorized either by the general law or by the special charter.

4. The subscriber for stock is released from his subscription by a subsequent alteration of the organization or purposes of the company, only when such alteration is both fundamental and not provided for or contemplated by either the charter itself or the general laws of the State.

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This election was held and resulted in favor of said proposition.

After said election of the 10th day of July, 1870, the said Board of Supervisors adopted a resolution, stating that said subscription of $75,000, "Is hereby made in pursuance of said election, subject to the following conditions: that a committee of five persons be hereafter appointed by this Board, whose duty it shall be to direct the issue of said bonds, and protect the interests of said County, and discharge such other duty as shall be devolved upon them by said Board, and the bonds of said County shall be issued on said subscription in sums of not less than $500, payable in annual installments of not less than $10,000, five years after the date of issue, bearing interest at the rate of ten per cent. per annum, payable annually, and that the clerk of the county court should issue to said railroad company the said bonds, but providing that the bonds should not be issued until a bona fide con

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estopped from denying its validity upon these bonds and coupons?"

Messrs. Thomas S. Shaw and R. G. Ingersoll, for plaintiff in error:

I. The consolidation of the Kankakee & Illinois River Railroad Company with the Plymouth, Kankakee & Pacific Railroad Company, being specially authorized by the charter of the former company at the time the stock was voted, as well as by the general laws of Illinois, did not release the subscriptions of Putnam County to the stock of the former company, made and accepted before such consolidation. Redf. Railw., 2d ed., 95; Pierce, R. R., 95; Cork & Youghal R. Co. v. Paterson, 37 Eng. L. & E., 398; Flooks v. London R. R. Co., 19 Eng. L. & E., 7; Hayes v. Ottowa R. R. Co., Supreme Court, Illinois, 1873, unpublished; R. Co. v. Earp, 21 l., 292; R. Co. v. Beers, 27 Ill., 189; Robertson v. Rockford, 21 Ill., 451; Macoupin Co. v. People, 58 Ill., 191; Sparrows v. R. R. Co., 7 Port. (Ind.), 369; Bish v. Johnson, 21 Ind., 299; Hanna v. R. Co., 20 Ind., 30; Bishop v. Brainard, 28 Conn., 289; R. Co. v. Thatcher, 11 N. Y., 102; R. Co. v. Dudley, 14 N. Y., 336; Oliver Lee & Co.'s Bank, 21 N. Y., 9; Plank Road Co. v. Griffin, 24 N. Y., 150; Moore v. R. Co., 12 Barb., 156; White v. R. Co., 14 Barb., 559; R. Co. v. Miller, 10 Barb., 260; South Bay Meadow Dam Co. v. Gray, 30 M., 547; R. Co. v. Winchester, 13 Allen, 29; Gray v. Nav. Co., 2 Watts & S., 156; R. Co. v. Renshaw, 18 Mo., 210; Plank Road Co. v. Clemens, 16 Mo., 359; Fry v. R. Co., 2 Met. (Ky.) 314; R. Co. v. White, 5 Clark, Ia., 409.

tract was made with responsible parties for all the iron necessary to the construction of the road, and that said bonds issued to said Company, upon the orders of said Board, shall be applied to the construction of said railroad in and through said County of Putnam, as specified in the previous order of this Board." And Mar. 15, 1870, said Board passed a resolution, resolving that said subscription of $25,000 is hereby made in pursuance of said resolution of Feb. 8, subject to the following conditions (being substantially the same as were attached to the $75,000 issue). But no subscription was in fact ever made to the stock of said Company, by or in behalf of said County. That, on and prior to Oct. 21, 1870, there existed in the State of Indiana, a corporation known as the Plymouth, Kankakee & Pacific Railroad Company, with power to construct and maintain a railroad from the easterly line of this State to Plymouth, Indiana; that Oct. 21, 1870, the corporate rights, stock, powers and franchises of the Kankakee & Illinois River Railroad Company, were consolidated with the stock, corporate rights and franchises of the Plymouth, Kankakee & Pacific Railroad Company, and became a consolidated company, known as the Plymouth, Kankakee & Pacific Railroad Company, with a capital stock of $2,500,000, it being provided by the articles of consolidation that the stockholders of the original companies should be stockholders of the consolidated company. To this consolidation the County of Putnam assented, and issued to said consolidated company, from time to time, the bonds of the County for said stock, so voted to said Kankakee & Illinois River Railroad Company, bearing interest and payable as provided in said resolution, with coupons attached for annual interest accruing thereon, which are the coupons in controversy, said bonds being made payable in terms to the Kankakee & Illinois River Railroad Company, but actually dated, issued and delivered after said Kankakee & Illinois River Railroad Company had become consolidated with the Plymouth, Kankakee & Pacific Railroad Company, and after the election which sanctioned the subscription to the stock of said Kankakee & Illinois River Railroad Company; that said Board of Supervisors appointed a committee, who delivered the bonds to said railroad, and said committee before issuing said bonds, certified to said Board of Supervisors that said railroad company had, in all respects, performed all the conditions required of it, and was entitled to receive said bonds; that, in the fall of 1871, said Board of Supervisors levied a tax on all the taxable property of said County, to raise the money for paying the interest on said bonds, and also borrowed the money to pay a portion of the interest which had accrued thereon. It also appears that the plaintiff is a holder of said bonds for value. The said bonds state upon Comrs. v. Nichols, 14 Ohio St., 260; Evanstheir face that they are "issued for the sub-ville R. R. Co. v. Evansville, 15 Ind., 395; Knox scription to the stock of the Kankakee & Illinois River Railroad Company, in pursuance of a resolution of the Board of Supervisors of said County.

Upon these facts the question arises as to the liability of the County of Putnam upon the bonds and coupons in question, or, to state more specifically the issue as made by the leadings, "Is the County, by what it has done,

II. The condition that the railroad should be located and constructed through Putnam County, over the line named, was not a condition precedent so far as the construction was concerned as the resolutions show the proceeds of the bonds were to be used in the construction of the road in the County.

Miller v. R. Co., 40 Pa., 237; Chamberlain v. R. R. Co., 15 Ohio St., 225; R. Co. v. Smith, 15 Ohio St., 328; McMillan v. R. Co., 15 B. Mon., 218; State v. Bissell, 4 Greene (Ia.), 228; R. Co. v. Winkler, 29 Mo., 318.

III. The condition precedent touching the contract for iron, laying the same, and operating the road, being conditions imposed by the Supervisors after the note was taken, could be waived by the Board, and the issuance of such bonds would be a waiver of such condition.

Com. v. Pittsburg, 43 Pa., 391; Bell v. R. Co., 4 Wall., 598, 18 L. ed. 338.

IV. The committee appointed by the Board having passed upon the sufficiency of the contract of Barnes & Co., and their action having been approved by the Board, and the bonds having passed into the hands of innocent holders, the County is estopped, and cannot go be hind such decision.

Co. v. Aspinwall, 21 How., 539, 16 L. ed. 208; Bissell v. Jeffersonville, 24 How., 287, 16 L. ed. 664; St. Joseph Township v. Rogers, 16 Wall., 644, 21 L. ed. 328.

V. The second replication to each plea averred that Barnes & Co., were responsible, and that the conditions as to location and the contract for iron, laying the same, and operating the road, were complied with. This was a complete an

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