Subsequently, March 26, 1889, Fielden, Schwab, and Neebe asked leave to amend the original motion, so as to add thereto the following: "And in support of said motion to amend said record your petitioners file herewith, and refer to the same in support of amendment of said record, the affidavits of Samuel Fielden, Michael Schwab, Oscar W. Neebe, petitioners, and W. P. Black and M. Salomon, petitioners' attorneys, wherein it is set forth that none of the plaintiffs in error appeared or could appear in this honorable court, where the said judgment was given, nor were they or any of them present by counsel on said occasion, nor were their counsel notified or furnished opportunity to be present on said occasion; and petitioners further say and allege and claim that the said recital in said record deprives petitioners and said plaintiffs inerror of substantial rights guarantied the said plaintiffs in error by the constitution of the United States and by the constitution of the state of Illinois, and particularly in said recital on said record and the judgment of this court, in violation of the 14th amendment to the constitution of the United States, and in violation of section two of article two of the constitution of the state of Illinois; and plaintiffs in error claim the benefit, right, privileges, and im munities guarantied by the constitutional provisions referred to." At the same time they applied for a rehearing of the motion previously made, claiming that the decision of the court below in overruling it, and in refusing to amend the record as requested by them, was in violation of the rights secured to them by the fourteenth amendment of the constitution of the United States, and by other provisions of that instrument, and also in violation of section 2 of article 2 and other provisions of the constitution of the state of Illinois. They insisted, in the application for a rehearing, that a legal judgment could not have been rendered against them unless they were brought before the court and were personally present when the judgment against them was pronounced; that the refusal to amend the record, and permitting it to stand as it was, deprived them of their right and privilege of questioning the judgment so pronounced, "if pctitioners shall see fit to do so, in the United States supreme court, to which petitioners claim they have a right of appeal from the judgment of this court condemning petitioners. They also applied for leave to present a bill of exceptions embodying the above motions, amendment to motion, petition for rehearing, and affidavits filed in support of the application to amend the record. The supreme court of Illinois overruled each motion and the petition for rehearing, and from its order to that effect Fielden prosecuted this writ of error.

Benj. F. Butler and Moses Salomon, for plaintiff in error. George Hunt and E. S. Smith, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The supreme court of Illinois held that, v.12s.c.-34

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under the practice in that state, "amendments of the record in affirmance of the judgment, when there is anything to amend by, may, upon notice, be made at a term subsequent to that at which final judgment is rendered; but amendments not in affirmance, but in derogation, of the judgment, are not allowed at a term subsequent to that at which final judgment is rendered. * This motion, not having been made at the same term at which final judgment was rendered, nor until the case had passed beyond the power of this court to stay, by its order, the execution of the judgment, clearly comes too late." In order that it might not be understood as conceding that the amendment, if made, would affect the validity of the judgment, the court proceeded to show that according to the principles of the common law, as well as under the laws of Illinois, it had jurisdiction to hear and finally determine, in the absence of the defendants, the writ of error sued out for the review of the judgment of the criminal court of Cook county. It said: “If the present plaintiffs in error and their counsel had been actually present in court when the judgment of affirmance here was entered, the law allowed them to then say or do nothing which by any possibility could have benefited plaintiffs in error. They were, after judgment was entered, entitled only to move for a rehearing, and this could only be done on printed petition; but thirty days were allowed in which to prepare it. 93 Ill. p. 11, rule 41." "Undoubtedly," the court further said. "if plaintiffs in error or their counsel had been actually present in court when the decision was announced, they would then have known what the decision was; but that fact was equally well made known to them by notice from the clerk in ample time to avail of their right to file a petition for rehearing. And if, indeed, without any fault of theirs, more time would have been needed within which to prepare the petition for rehearing, it was within the recognized practice of this court to have extended the time for that purpose beyond the thirty days. But no claim is here made that plaintiffs in error were not informed of the decision in the case in time to file a petition for rehearing. They did not seek to avail of that right, but voluntarily waived it, and prosecuted a writ of error upon the record from the supreme court of the United States, and it was not until after that was decided adversely to them that they discovered the claim made error in the record of which amendment is now sought. Fielden v. People, 128 Ill. 595, 21 N. E. Rep. 584.

The plaintiff in error contends that the refusal to amend the record, so as to show that he was not present in person or by counsel in the supreme court of Illinois, at the time it affirmed the judgment of the trial court, and fixed the day for carrying that judgment into execution, was a denial to him of that equal protection of the laws which is accorded by the constitution of the United States to all persons within the jurisdiction of the respective states; also, that such action upon the part of the court below

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455

457

Assuming that these constitutional questions were so raised in the court below as to authorize them to be considered here, we are of opinion that no right secured to the plaintiff in error by the constitution of the United States was violated by the refusal of the supreme court of Illinois to allow the proposed amendment of its record. We take, as is our duty, the law of Illinois to be, as declared by its highest court, that amendments of the record of a court, in derogation of its final judgment, are not permitted in that state after the expiration of the term at which the judgment was rendered. That law is applicable to all persons within the jurisdiction of the state; and its en. forcement against the plaintiff in error cannot, therefore, be said to be a denial to him by the state of the equal protection of the laws. Neither discussion nor citation of authorities is required to support a proposition so manifestly correct.

When the original case was before this court, Chief Justice WAITE said: "The objection that the defendants were not actually present in the supreme court of the state at the time sentence was pronounced cannot be made on the record as it now stands, because on its face it shows that they were present. If this is not in accordance with the fact, the record must be corrected below, not here. It will be time enough to consider whether the objection presents a federal question when the correction has been made." Spies v. Illinois, 123 U. S. 131, 182, 8 Sup. Ct. Rep. 21. These observations were adverted to in argument. but we do not perceive that they have any bearing on the questions now raised. The chief justice only meant to say that this court could not amend the record, but, if amended by the court below, the question would still remain whether the objection referred to could be considered by this court.

Equally without merit is the suggestion that the action of the court below in disposing of the writ of error to the crimi. nal court of Cook county in the absence of the accused was not in conformity to "due process of law." This question was determined in Schwab v. Berggren, (just decided,) and we do not deem it necessary to add anything to what is there said. Judgment affirmed.

(143 U. S. 371)

WINONA & ST. P. R. Co. v. Town OF PLAIN-
VIEW.

SAME V. TOWN OF ELGIN.
(February 29, 1892.)

JURISDICTION ON APPEAL-FEDERAL QUESTION. 1. A tax-payer brought suit in the district court of Minnesota against plaintiff town and the P. Ry Co to restrain the issue of railway aid bonds by the town to the company, under Gen. Laws Minn. 1877, c. 106, § 7. and judgment was entered therein for defendants. Pending an appeal, the bonds were issued and negotiated to bona fide purchasers. The decree was reversed on appeal, and the bonds declared invalid. Sub sequently defendant railroad company purchased the rights, etc., of the P. Ry. Co. under Act Minn. March 3, 1881, authorizing such purchase, with the proviso that it should be subject to the

growing out of the disposal of such bonds. The bondholders, being non resident, sued in the federal court on coupons, and recovered; the court holding that, as they purchased in good faith under the decision of the state court holding the bonds valid, they could not be affected by the subsequent decision on appeal declaring them invalid. Held, in a subsequent action in the state courts by the town against defendant company to recover the amount of such bonds, in which the court held that the company was bound by the prior decision declaring them invalid, and gave judgment for plaintiff, that the court did not fail to give full faith and credit to the decision of the federal court, as the right of recovery must have depended upon the fact that the holders of the bonds were bona fide holders, and entitled to enforce them against the town.

2. The decision did not impair the obligations of a contract by giving effect to the act of 1881, as the decision was rendered prior to the passage of such act, and defendant voluntarily assumed the liability imposed thereby, and therefore no federal question was presented in the case.

In error to the supreme court of the state of Minnesota.

Actions by the town of Plainview and the town of Elgin against the Winoua & St. Peter Railroad Company to recover the amount of certain railroad aid bonds. Judgments for plaintiffs were affirmed by the supreme court of Minnesota, (32 Ñ. W. Rep. 745,) and defendant sued out these writs of error. Dismissed.

Thomas Wilson and Lloyd W. Bowers, for plaintiff in error. C. K. Davis and F. B. Kellogg, for defendants in error.

Mr. Justice BLATCHFORD delivered the opinion of the court.

By an act of the legislature of the state of Minnesota approved March 5, 1877, (Gen. Laws 1877, c. 106.) it was enacted by sections 4, 5, 6, and 7 thereof, as is printed in the margin.1

Purporting to proceed under sections 4*

1 Sec. 4. Whenever any such railroad company, specified in the first section of this act, shall de sire aid in the construction of its railroad from any county, town, city, or village specified in said first section, it shall make and deliver to the county auditor of such county, the town clerk of such town, or the clerk of such incorporated city or village, as the case may be, a definite proposition in writing, signed by the president and secretary of said railroad company, and sealed with its seal, which proposition shall contain a statement of the amount of bonds desired, the time when payable, and whether payable before maturity at the option of such municipality, the rate of interest which they shall bear, and such proposition shall contain a statement specifying when said bonds are to be delivered with reference to the time of the entire or partial construction of said railroad, and may contain a statement that such bonds may be deposited in escrow prior to the delivery to the railroad company; and such proposition shall contain a statement that the said railroad company will, in consideration of said bonds, at the election of such municipality, issue to the municipality from which it is to receive the same such number of the shares of its capital stock as will, at par value of such stock, corrrespond with the principal sum. of such bonds. In case such bonds are proposed to be deposited in escrow as aforesaid, the proposition shall also state that the certificate of the stock to be exchanged therefor shall be placed with the same depository at the same time, and in that case the proposition shall set forth the full name and residence of the trustee or trustees, who shall be the custodian of the stock of

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tures were verified by the affidavits of the persons witnessing such signatures; but the petitions were not signed by a majority of the electors or legal voters of the town. Those petitions were the only ones ever made asking the authorities of the town to agree to the proposition of the company, and they and section 7 of the act constituted the only authority had or claimed for the issue of the bonds hereCinafter mentioned. No election was held in the town to authorize its supervisors to agree to the proposition or to the issue of any such bonds.

On the 30th of March, 1878, the board of supervisors of the town adopted and placed on file in the office of the town-clerk resolutions which recited the proposition of the company, the posting of the notices, and the presenting of the petitions, with signatures and affidavits, from which it appeared that a majority of the resident tax-payers of the town, assessed for taxes upon real or personal estate therein, as shown by its last assessment roll, had signed the petitions, and that the construction of the railroad by the company, as set forth in its proposition, would promote the general prosperity and welfare of the tax-payers of the town. The resolutions were that the proposition of the company was accepted, so far as related to the issue of bonds; that bonds of the town to the amount of $50,000, with interest coupons attached and payable as requested in the proposition, be issued to the company as soon as it should have its railroad completed, with the cars running thereon; and that the issue of stock to the town by the company, in consideration of the bonds, was waived.

The company constructed its railroad, had the cars running thereon, and performed what was stated in the proposi. tion, except that it never issued to the town any stock of the company.

Before any bonds of the town were issued to the company, one George W. Harrington, a resident citizen and tax-payer of the town, brought a suit in the district court for Wabasha county, in which county the town is situated, against the town and its officers and the railroad company, setting forth the proceedings on which the bonds were to be issued; that they were illegal; and that it was intended to issue the bonds; and praying that the town and its officers, particularly the chairman of the board of supervisors and the town-clerk, might be enjoined from Issuing, and the railroad company from accepting or receiving, any such bonds. The town answered the complaint, and in January, 1879, the case was tried by the e district court, which, on February 6, 1879, gave judgment for the defendants, and dismissed the suit. Harrington took an appeal to the supreme court of the state, but, before it was perfected, the bonds were issued and delivered to the company. The supreme court, on October 6, 1880, reversed the judgment below, its opinion beIng reported in 27 Minn. 224, 6 N. W. Rep. 777. It held that, under the constitution of Minnesota, it was not competent for the legislature to authorize any person or class of persons, other than the electors

of a town or the officers chosen by such electors, to determine what action, requir ing local taxation, the town would take in any particular case: that, therefore, section 7 of chapter 106 of the Laws of 1877, which assumed to empower a major. ity of the "resident tax-payers," whether they were electors or not, to bind a town to issue its bonds to aid in the construction of a railroad, was unconstitutional and void; and that, although the mode for authorizing_the issue of bonds provided by section 7 was invalid, yet, as the same act provided another mode for authorizing such issue, which was valid, and as the bonds need not recite under which of the two provisions of the act they were issued, but only that they were issued under and pursuant to such act generally, and a purchaser would then have the right to presume that they were issued under its valid provisions, and there might thus be bona fide purchasers of the bonds, a suit for an injunction would lie to restrain the issuing of the bonds by the town officers under the invalid mode provided by section 7 of the act.

On the 18th of March, 1879, the town board of supervisors passed a resolution that the town issue to the company its bonds in the sum of $50,000, dated on Jan. uary 1, 1879, to become due on or before 20 years from that date, with interest thereon, payable annually, at 7 per cent. per annum; that the bonds be signed and issued by the chairman of the board and the town-clerk; and that the issue of stock by the company to the town in a corresponding amount was waived. The bonds were issued on the 19th of March, 1879, being 100 in number, and numbered, consecutively, from 1 to 100, each purporting to be the bond of the town of Plainview, payable to the Plainview Railroad Company or bearer, for $500, dated January 1, 1879, due on or before January 1, 1899, with interest at 7 per cent. per an-• num, payable annually, according to the conditions of the 20 interest coupons attached, one of them payable January 1, 1880, and one on January 1 of each year thereafter until the maturity of the bond. Each bond contained on its face the following statement: "This bond is issued in pursuance of a mutual agreement between the said town and the said railroad company, which agreement was made in accordance with the laws of the state of Minnesota, and through and by a propo. sition made by said railroad company, and duly accepted by said town upon petition therefor signed by a majority of the resident tax-payers of said town, said agreement having been fully performed by the said railroad company on its part. This bond is issued in pursuance of the authority given for that purpose by the laws of the state of Minnesota, and in compliance with a resolution of the board of supervisors of said town.'

The company, on or about July 9, 1879, sold, transferred, and delivered the bonds and coupons to citizens of the state of Wisconsin, who purchased the same without notice of any facts invalidating the bonds, and paid the company $50,000 for them. The bonds and coupons were pur

On the other hand, we cannot be unmindful of the consequences that must result if this court should feel obliged, in fidelity to the constitution, to declare that an enrolled bill, on which depend public and private interests of vast magnitude, and which has been authenticated by the signatures of the presiding officers of the two houses of congress, and by the approval of the president, and been deposited in the public archives, as an act of congress, was not in fact passed by the house of representatives and the senate, and therefore did not become a law.

The clause of the constitution upon which the appellants rest their contention that the act in question was never passed by congress is the one declaring that" each house shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of onefifth of those present, be entered on the journal." Article 1, § 5. It was assumed in argument that the object of this clause was to make the journal the best, if not conclusive, evidence upon the issue as to whether a bill was, in fact, passed by the two houses of congress. But the words used do not require such interpretation. On the contrary, as Mr. Justice Story has well said, "the object of the whole clause is to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures; patriotism and integrity and wisdom obtain their due reward; and votes are ascertained, not by vague conjecture, but by positive facts. So long as known and open responsibility is valuable as a check or an incentive among the representatives of a free people, so long a journal of their proceedings and their votes, published in the face of the world, will continue to enjoy public favor and be demanded by public opinion." 2 Story, Const. §§ 840, 841.

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In regard to certain matters, the constitution expressly requires that they shall be entered on the journal. To what extent the validity of legislative action may be affected by the failure to have those matters entered on the journal we need not inquire. No such question is presented for determination. But it is clear that, in re. spect to the particular mode in which, or with what fullness, shall be kept the proceedings of either house relating to matters not expressly required to be entered on the journals; whether bills, orders, resolutions, reports, and amendments shall be entered at large on the journal, or only referred to and designated by their titles or by numbers,-these and like matters were left to the discretion of the respective houses of congress. Nor does any clause of that instrument, either expressly or by necessary implication, prescribe the mode v.12s.c.-32

in which the fact of the original passage of a bill by the house of representatives and the senate shall be authenticated, or preclude congress from adopting any inode to that end which its wisdom suggests. Although the constitution does not expressly require bills that have passed congress to be attested by the signatures of the presiding officers of the two houses, usage, the orderly conduct of legislative proceedings, and the rules under which the two bodies have acted since the organization of the government, require that mode of authentication.

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The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable. As the president has no authority to approve a bill not passed by congress, an enrolled act in the custody of the secretary of state, and having the official attestations of the speaker of the house of representatives, of the president of the senate, and of the president of the United States, carries on its face a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and Independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of it. self-nothing to the contrary appearing upon its face-that it passed congress. But the contention is that it cannot be regarded as a law of the United States if the journal of either house fails to show that it passed in the precise form, in which it was signed by the presiding officers of the two houses, and approved by the president. It is said that, under any other view, it becomes possible for the speaker of the house of representatives and the president of the senate to impose upon the people as a law a bill that was never passed by congress. But this possibility is too remote to be seriously considered* in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed