proposition or to issue any bonds; that the board of supervisors adopted the resolutions before referred to without authority or right from the electors of the town or otherwise, the supervisors and the railroad company well knowing that a majority of the electors or legal voters of the town had not signed the petitions, and that no election had been held authorizing the passing of the resolutions; that there was no authority to pass the same, or to bind the town thereby, or to issue the bonds; that the bonds were issued and delivered to the company; and that the latter, on or about July 9, 1879, intending to injure and defraud the town and deprive it of any defense to the bonds or coupons as against bona fide holders thereof for value, sold and transferred the bonds to citizens of Wisconsin, who purchased the same of the company bona fide, without notice of any of the fasts invalidating the bonds, and paid the company $50,000 therefor. The complaint then set out the suits and judgments against the town by Marshall and Ilsley, and the passing of the act of March 3, 1881, and averred that the passage of that act was procured by the Winona & St. Peter Railroad Company, and the act duly ac cepted and assented to by that company; that the bonds and coupons mentioned in that act were the same before referred to, and the said company under said act issued and disposed of its stock to an amount necessary to make and complete the purchase authorized by the act; and that, about May, 1881, that company, acting solely under the provisions of the act, purchased all the property and franchises of the Plainview Railroad Company, of the value of $200,000, and in making such purchase, and as part of the consideration therefor, assumed all claims, demands, and rights of action against the Plainview Railroad Company, as provided in the act, including the claim, demand, and right of action set forth in the complaint, and agreed to pay the same. The complaint demanded judgment against the Winona & St. Peter Railroad Company for $50,000, with interest from January 1, 1879, at 7 per cent. per annum. The record shows that on the 11th of May, 1881, the Plainview Railroad Company conveyed, by an instrument in writing, to the Winona & St. Peter Railroad Company all its railroad, about 16 miles in length, and all its franchises and property, for the consideration of $225,000 paid, and by virtue of the power and authorty conferred upon the parties" by the act of March 3, 1881. The defendant put in an answer to the complaint, denying its liability, to which answer the plaintiff replied. Evidence was given as to the suit of Harrington and the suits of Marshall and Ilsley against the town, and the case was tried in June, 1885, before the district court for Wabasha county, which made findings of fact and conclusions of law, on December 26 1885, and entered a judgment for the plaintiff for $74,451.31, being $50,000, with interest from January 1, 1879, at 7 per cent. per unnum. The defendant moved for a new trial, which was denied in May, 1886, and it then appealed to the supreme court of Minuesota from the order denying the motion. The case was decided by that court April 28, 1887, (36 Minn. 505, 32 N. W. Rep. 745,) and it affirmed the order denying the motion for a new trial, and adjudged that the plaintiff have judgment accordingly. On the mandate of the supreme court, the district court gave judgment for the plaintiff for $80,031.86 damages and $257.09 costs and disbursements, being in all $80,288.95. From that judgment the defendant took a further appeal to the supreme court of the state, which court affirmed the judgment below, for the reasons given in the opinion of the court reported in 36 Minn. 505, 32 N. W. Rep. 745, and directed judgment accordingly, which was entered in the supreme court. To review that judgment, a writ of error was sued out from this court on the allowance of the chief justice of the supreme court of Minnesota. The writ of error in the case of Winona & St. Peter R. Co. v. Town of Elgin is presented for consideration at the same time with the Case of the Town of Plainview, and was argued at the same time on the same briefs. The two cases have gone along together pari passu in the lower courts, and the proceedings in them have been alike, mutatis mutandis. The bonds in the case of the town of Elgin were for $40,000, being 80 in number, of $500 each, bearing date January 1, 1879, and containing the same recital as in the case of the town of Plainview. The judgments in favor of Marshall and Ilsley against the town of Elgin were five in number, being, respectively, for $1,696.85, $1,443.91, $2.852.85, $2,745.12, and $3,175.82, all recovered upon coupons. The judgment of the supreme court of Minnesota against the plaintiff in error here in the suit brought against it by the town of Elgin was rendered July 30, 1887, for $64,245.77. In 36 Minn. 517, 32 N. W. Rep. 749, the supreme court says that the case of the town of Elgin against the railroad company was argued and submitted with the case of the town of Plainview against the same defendant, and involved the same questions, and that court affirmed the order of the lower court. In the decision reported in 36 Minn. 505, 32 N. W. Rep. 745, the first opinion was given by Judge VANDERBURGH and concurred in by Judge BERRY. A second opinion was given by Chief Justice GILFILLAN and Judge DICKINSON. Judge MITCHELL dissented. In the first opinion it was said that the question of the validity of the bonds was considered and determined in Harrington v. Town of Plainview, 27 Minn. 224, 6 N. W. Rep. 777, that the bonds were not issued on the vote of the electors of the town, in pursuance of section 5 of chapter 106, Laws 1877, but in pursuance of section 7 of that statute, on the petition of a majority of the resident taxpayers; that the proceedings to procure the bonds were initiated and prosecuted by the railroad company under the act, by filing with the town clerk its proposition in writing, as provided by section 4 of the act, for the issue to it of the bonds £82. protected against the unauthorized acts of its own officers, when that could be done without injury to third parties; citing Thomas v. City of Richmond, 12 Wall. 349, 356, and Town of South Ottawa v. Perkins, 94 U. S. 260. The first opinion also said that, while the recitals in the bonds were sufficient to put the purchasers upon inquiry as to the authority for the issue of the bonds and the manner in which they were in fact issued, and by the recitals all purchasers were chargeable with notice of the invalidity of the bonds, Marshall and Ilsley had brought suit upon the coupons in the circuit court of the United States for the district of Minnesota, and the bonds had been duly adjudged and determined, in a trial upon the merits in that court, to be valid in their hands, and the result of that judgment was to make the bonds valid, negotiable securities held by them us bona fide purchasers; that, as the Plainview Company and the Winona & St. Peter Company were not parties to that action, the town was not estopped from litigating in the state courts the questions involved in the case; that the judgment of the circuit court of the United States could not be reviewed or modified by the state courts; that the result of its decision and judgment was to fix irrevocably the liability of the town for the whole amount of the indebtedness evidenced by the bonds; and that it must be deemed, therefore, to have been settled *conclusively that the bonds* had been transferred to parties in whose hands they had become valid and legal obligations against the town. of the town, and thereafter by securing and filing the petition of the tax-payers, as directed by section 7; and that the evidence in the case was sufficient to uphold the finding of the trial court that the bonds in controversy were issued to the Plainview Railroad Company, and by its agents transferred to the Chicago & Northwestern Railroad Company, at their par value, in consideration of the amount due to the latter company, which it had previously advanced in aid of the construction of the other company's railroad. The first opinion then proceeded as follows: "Before the issuance of the bonds, the action above referred to was commenced to enjoin the same, and, while the case was pending in this court, the bonds were issued and transferred. The evidence, however, does not warrant the conclusion that there was any actual fraud in the procurement or transfer of the bouds. Both railway companies were cognizant of the pendency of the action, and of the grounds of the alleged invalidity of the bonds; but the legal questions involved were still open and in dispute, and they were advised and believed them to be legal and valid. It is affirmed by the trial court, upon sufficient evidence, that, except as appears upon the face of the bonds, Marshall and Ilsley, and others, to whom they were subsequently transferred, had no notice of the suit, and were bona fide purchasers and holders for value. The Chicago & Northwestern Railway Company was a foreign corporation, and the subsequent purchasers of the bonds were and are citizens of other states. The bonds all recite on their face that they were issued in pursuance of the authority given for that purse by the laws of the state of Minnes u, and in compliance with a resolution of the board of supervisors of the town, and also 'ining had its day in court in that case; that 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 estate of Minnesota, and through and by a proposition 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 duly performed by 'said railroad company on its part.' This court held in the Harrington Case that an agreement, consummated by proceedings under the provisions of the statute referred to, between the railway company and the majority of the tax-payers, could not, under the constitution, be considered as the lawful agreement of the town, nor be of any binding obligation as such, and that bonds issued in pursuance thereof would be void, except in the hands of bona fide purchasers.' The first opinion then said that the bonds were invalid in the hands of the Plainview Company, and could not have been enforced by it; that, although that company had built its road, there was no agreement made with the town; that the town, in its corporate capacity, had received nothing, been guilty of no laches, and waived nothing, and there was no estoppel; and that it was entitled to be It was further said that it was determined conclusively, by the judgment in Harrington v. Town of Plainview, that the bonds were void in the hands of the Plainview Company, that company hav the issuing and disposition of the bonds must be treated by the state courts as unlawful and wrongful; that as the bonds, when once placed on the market, were liable to pass into the hands of purchasers who would be entitled to enforce the same as valid negotiable securities in the United States courts, it followed that the town had a cause of action for damages; that the Plainview Company transferred the bonds for full value, in payment of moneys advanced for building its road, and Marshall and Ilsley paid nearly par for them; that they were treated by all parties as valuable commercial securities, placed on the market and sold, and enforced as such against the town; and that, as the bonds were invalid, and the Plainview Company ac quired no title to them as obligations o the town, it could not claim to be en titled to the proceeds of them as its prop erty. It was further said that, as the Plainview Company received the full face value of the bonds, the amount of the recovery would be the same whether the suit was one for money had and received or one for a conversion; that the allegations of the complaint and the findings of fact were sufficient to support the action in either form; that the title to the bonds had been •387 ⚫386 confirmed in the present holders of them, who had recovered, or would recover, the full amount thereof; that the liability of the town had been fixed through the acts of the Plainview Company in procuring and negotiating the bonds, which acts were unauthorized and wrongful; that such proceedings as would result in the enforcement of the bonds must be presumed to have been intended and contemplated by the Plainview Company, either in its own hands or by purchasers who might occupy a more advantageous position, and it could not be permitted to object that the bonds were of no value, or allege its own wrong, for the purpose of defeating the action; citing Comstock v. Hier, 73 N. Y. 269; Lamb v. Clark, 5 Pick. 193, 197; and that the town was not estopped or concluded by the result of the suit of Marshall and Ilsley, to which the Plainview Company was not a party. The first opinion further held that, under the provision of the act of March 3, 1881, the Winona & St. Peter Company should make the purchase from the Plainview Company "subject to all demands, claims, and rights of action against said Plainview Railway Company arising or growing out of the latter company's having heretofore obtained and disposed of certain bonds and coupons purporting to have been issued by the towns" named to the Plainview Company, the Winona & Saint Peter Company acquired the property and franchises of the Plainview Company by virtue of that act, and, of course, took the grant cum ouere, and subject to the provisions and conditions of the act. The conclusion was that the town was entitled to recover, and that the order denying a new trial should be affirmed. The second opinion concurred in the conclusion of the first opinion, but based the responsibility of the company on the following considerations, viz.: That the company, having procured the unauthorized execution and delivery to itself of the bonds, in form expressing the obligation of the town, and having negotiated them so that they had come into the hands of parties who had enforced a recovery upon them by proper action in a competent tribunal, was answerable for its own unauthorized acts, which had resulted in that injury to the town, unless the recovery upon the bonds was to be deemed to be too remote a consequence to afford a ground of legal liability; that, as to the acts of the company, the injurious consequence was not remote, but proximate; that, when the company procured and disposed of the bonds, it must be deemed to have contemplated that the town should pay the bonds, either voluntarily or by legal compulsion; that it made no difference if the judgment by which the liability of the town to pay the bonds had been conclusively established was erroneous; and that that did not make remote the damage complained of. The federal questions alleged to be involved in these cases are thus stated by the plaintiff in error: (1) Did the supreme court of Minnesota, in rendering its judgments in these cases, fail to give to the judgments of the United States circuit court in the Marshall and Ilsley Cases such faith and credit as they were entitled to under the constitution and laws of the United States? (2) Did it, in rendering these judgments, disregard tue provision of the constitution of the United States that no state shall pass any law impairing the obligation of a contract? They are otherwise stated in another of the briefs for the plaintiff in error as follows: (1) The supreme court of Minnesota, in rendering the judgments under review, disregarded the provision of the constitution of the United States that no state shall pass any law impairing the obligation of a contract, in that it erroneously decided that the contracts and bonds of the towns were invalid, and on that ground gave effect to the act of March 3, 1381, as making the Winona & St. Peter Railroad Company liable for the transfer of the bonds; (2) the supreme court, in rendering its judgments in these cases, disregarded the constitution and laws of the United States in deciding that the Winona & St. Peter Railroad Company was liable to the towns, because it was responsible for the consequences to them of the judgments in the Marshal and Ilsley Cases, although the company would not have been liable but for said judgments. The towns have moved to dismiss the writs of error for want of jurisdiction in this court, on the ground that the records, present no federal question. To present a federal question on the ground that full faith and credit were not given by the state court to the judgments of the circuit court of the United States in the Marshall and Ilsley cases, it must appear that the state court denied to the plaintiff in error, within the terms of section 709 of the Revised Statutes, "some title, right, privilege, or immunity" held by the plaintiff in error under the judgments of the circuit court of the United States in those cases, and claimed by it in the state court under the constitution or a statute of the United States; and that the decision of the state court was against the title, right, privilege, or immunity specially set up or claimed by the plaintiff in error under such constitution or statnte. This does not appear by the record. The Marshall and Ilsley Cases were suits by citizens of Wisconsin against the towns. Neither the plaintiff in error nor the Plainview Company was a party to those suits, nor was any one in privity with either company such party. Those cases settled only the question whether the towns were liable to Marshall and Ilsley on the bonds. They did not settle the rights of the towns, and of the Plainview Company or the plaintiff in error, as between each other, with :egard to the bonds. The circuit court of the United States sustained the validity of the bonds on the ground that Marshall and Ilsley were bona fide holders of them. The fact that the supreme court of Minnesota, in the present cases, did not acquiesce in the correctness of the decision of the circuit court of the United States, did not constitute a federal question. Neither the con Dutch standard of color, two cents per pound. "Molasses testing above fifty-six degrees, four cents per gallon. Sugar drainings and sugar sweepings shall be subject to duty either as molasses or sugar, as the case may be, according to polariscopic test. "On coffee, three cents per pound. "On tea, ten cents per pound. "Hides, raw or uncured, whether dry, salted, or pickled, Angora goat-skins, raw, without the wool, unmanufactured, asses' skins, raw or unmanufactured, and skins, except sheep-skins, with the wool on, one and one-half cents per pound." 26 St. pp. 567, 612. The plaintiffs in error contend that this section, so far as it authorizes the president to suspend the provisions of the act relating to the free introduction of sugar, molasses, coffee, tea, and hides, is unconstitutional, as delegating to him both legislative and treaty-making powers, and, being an essential part of the system established by congress, the entire act must be declared null and void. On behalf of the United States it is insisted that legislation of this character is sustained by an early decision of this court and by the practice of the government for nearly a century, and that, even if the third section were unconstitutional, the remaining parts of the act would stand. or The decision referred to is The Aurora, 7 Cranch, 382, 388. What was that case? The non-intercourse act of March 1, 1809, c. 24. §§ 4, 11, forbidding the importation, after May 20, 1809, of goods, wares, merchandise from any port or place in Great Britain or France, provided that "the president of the United States be, and he hereby is, authorized, in case either France or Great Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral com. merce of the United States, to declare the same by proclamation;" after which the trade suspended by that act and the act laying an embargo could "be renewed with the nation so doing.' 2 St. p. 528. The act of 1809 expired on the 1st of May, 1810, on which day congress passed another act, (chapter 39, § 4,) declaring that in case either Great Britain or France, before a named day, so revoked or modified her edicts "as that they shall cease to violate the neutral commerce of the United States, which fact the president of the United States shall declare by proclamation, and if the other nation shall not" within a given time revoke or modify her edicts in like manner, then certain sections of the act of 1809 "shall, from and after the expiration of three months from the date of the proclamation aforesaid, be revived and have full force and effect, so far as relates to the dominions, colonies, and dependencies, and to the articles the growth, produce, or manufacture of the dominions, colonies, and dependencies of the nation thus refusing or neglecting to revoke or modify her edicts in the manner aforesaid. And the restrictions imposed by this act shall, from the date of such proclamation, cease and be discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid." 2 St. pp. 605, 606. On the 2d of November, 1810, President Madison issued his proclamation declaring that France had so revoked or modified her edicts as that they ceased to violate the neutral commerce of the United States. In the argument of that case it was contended by Mr. Joseph R. Ingersoll that congress* could not transfer legislative power to the president, and that to make the revival of a law depend upon the president's proclamation was to give that proclamation the force of a law. To this it was replied that the legislature did not transfer any power of legislation to the presi dent; that they only prescribed the evidence which should be admitted of a fact, upon which the law should go into effect. Mr. Justice JOHNSON, speaking for the whole court, said: "We can see no sufficient reason why the legislature should not exercise its discretion in reviving the act of March 1, 1809, either expressly or conditionally, as their judgment should direct. The nineteenth section of that act, declaring that it should continue in force to a certain time, and no longer, could not restrict their power of extending its operation without limitation upon the occurrence of any subsequent combi. nation of events." This certainly is a decision that it was competent for congress to make the revival of an act depend upon the proclamation of the president, showing the ascertainment by him of the fact that the edicts of certain nations had been so revoked or modified that they did not violate the neutral commerce of the United States. The same principle would apply in the case of the suspension of an act upon a contingency to be ascertained by the president, and made known by his proclamation. To what extent do precedents in legislation sustain the validity of the section under consideration, so far as it makes the suspension of certain provisions and the going into operation of other provisions of an act of congress depend upon the action of the president based upon the occurrence of subsequent events, or the ascertainment by him of certain facts, to be made known by his proclamation? If we find that congress has frequently, from the organization of the government to the present time, conferred upon the president powers, with reference to trade and commerce, like those conferred by the third section of the act of ctober 1, 1890, that fact is entitled to great weight in determining the question before us. During the administration of Washing. ton, congress, by an act approved June 4, 1794, c. 41, authorized the president, when congress was not in session, and for a prescribed period," whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels in the ports of the United States, or upon the ships and vessels of the United States. or the ships and vessels of any foreign uation, under such regulations as the cir cumstances may require, and to continue or revoke the same, whenever he shall think proper. 1 St. p. 372. 99 Congress passed, and President Adams 1881 did not attempt to render invalid any contract between the towns and the Plainview Company. Although the plaintiff in error was held liable by the state court by virtue of the act of 1881, that did not raise a federal question, because the liability was one assumed vol. untarily by the plaintiff in error. The liability of the Plainview Company must first be established, before the act of 1881 can have any effect. The supreme court of Minnesota held the bonds invalid by reasons of provisions in the constitution of the state which were in force at the time of the passage of the act of 1877, and it did not hold them invalid by reason of the act of 1881. Bethell v. Demaret, 10 Wall. 537; West Tenn. Bank v. Citizens' Bank of Louisiana, 13 Wall. 432, 14 Wall. 9: Delmas v. Insurance Co., 14 Wall. 661, 666; Tarver v. Keach, 15 Wall. 67; Stevenson v. Williams, 19 Wall. 572; New Orleans Water-Works Co. v. Louisiana Sugar-Refining Co., 125 U. S. 18, 35, 8 Sup. Ct. Rep. 741. Moreover, the liability of the Plainview Company to the towns, which is sought to be enforced in the present suits against the plaintiff in error, was founded on tort, and did not arise out of any contract relations. That liability was what was assumed by the plaintiff in error, and no question can arise as to the impairment by the act of 1881 of the obligation of any contract. The writs of error must be dismissed. Mr. Justice BREWER did not sit in these cases, or take any part in their decision. (144 U. S. 133) SOUTHERN KANSAS RY. Co. v. BRISCOE. (March 28, 1892.) JURISDICTION OF FEDERAL COURTS-INDIAN TERRITORY-RAILWAYS-KILLING STOCK. 1. Act Cong. July 4, 1884, granting to the Southern Kansas Railway Company a right of way through the Indian Territory, and providing (section 8) that the federal circuit and district courts for the northern district of Texas, western district of Arkansas, and district of Kansas shall have jurisdiction, without reference to amount, over "all controversies" arising between said company and the nations or tribes and their inhabitants through whose territory the railway shall be constructed, confers jurisdiction of a suit by an inhabitant of the Chickasaw Nation to recover for the wrongful killing of stock by the company's trains. 2. The declaration in the latter part of section 8, that the civil jurisdiction of said courts is hereby extended within the limits of said territory, without distinction as to citizenship of the parties, "so far as may be necessary to carry out the provisions of this act," does not restrict the words "all controversies" to controversies growing out of the construction of the road, since it was the purpose of the act to regulate, not only its construction, but its operation as well. was a general denial of liability. Defendant requested an instruction that he was not such inhabitant, which was refused, as there was evidence tending to show that he was. Held, that this left the question for the jury, and by returning a verdict for him they determined it in his favor, and this determination was binding upon the supreme court. 10 Fed. Rep. 273, affirmed. In error to the circuit court of the United States for the western district of Arkan sas. Affirmed. Geo. R. Peck, A. T. Britton, and A. B. Brown, for plaintiff in error. A. H. Garland and H. J. May, for defendant in error. Mr. Chief Justice FULLER delivered the opinion of the court. Briscoe brought suit, as an inhabitant of the Chickasaw Nation, Indian Terri tory, in the district court of the United States for the western district of Arkansas, against the Southern Kansas Railway Company, to recover damages for the wrongful killing of certain live-stock by one of the defendant's trains, which was tried in the circuit court for that district after the passage of the act of February 6, 1889,*(25 St. p. 655,) and judgment rendered for $896.75. The case was brought to this court under the act of February 25, 1889, (25 St. p. 693,) on the question of the jurisdiction of the court below. By the act of July 4, 1884, (23 St. p. 73,) congress granted the right of way through the Indian Territory to the Southern Kansas Railway Company. The act defined the route and the extent of the right of way; provided for compensation for property taken or damage done by reason of the construction of the road; for regulating the rates for freight, passenger, and mail service; for the filing of maps showing the routes of the located lines through the territory, in the office of the secretary of the interior, and also in the office of the principal chief of the nations or tribes through which the lines might run; for the construction of prescribed mileage within three years; for the recording of all mortgages executed by the company in the department of the interior; and that the right of way should be accepted upon the express condition that the company would neither aid, advise, nor assist in any effort looking towards the changing or extinguishing the tenure of the Indians in their lands, and not attempt to secure from the Indian nation any further grant of land or occupancy than as provided, under penalty of forfeiture of all the rights and privileges of the company under the act. The eighth section reads as follows: "That the United States circuit and district courts for the northern district of Texas, the western district of Arkansas, and the district of Kansas, and such other courts as may be authorized by congress, shall have, without reference to the amount in controversy, concurrent juris 3. As the company derives from the act all its rights in relation to the construction and operation of its road in the territory, a controversy growing out of the exercise of those rights is necessarily a controversy arising under the laws of the United States, and congress, therefore, had constitutional power to give jurisdic-diction over all controversies arising betion thereof to the courts named. 4. In an action brought against the company under the act by a person as an inhabitant of the Chickasaw Nation, the fact that he was such inhabitant was not specifically denied, but there tween said Southern Kansas Railway Company and the nations and tribes through whose territory said railway shall be constructed. Said courts shall have like ju |