Bissell v. Township of Spring Valley (110 U.S. 162)

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 indorsed upon each of the said bonds, a copy of which said certificate and indorsement 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 90 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 & Pacific Railroad Company in      the sum of one thousand dollars, which sum the said township      therein promises to pay to the said Atlantic & 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 per cent. 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 fifteenth 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 conf ict therewith,' approved March 2, 1872.

'Witness my hand and official seal, this eleventh 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.

Mr. Alfred Ennis for plaintiff in error.

[Argument of Counsel from page 166 intentionally omitted]

W. H. Rossington, for defendant in error.

MATTHEWS, J.