[62 H. B. WELLS, Plff. in Err., v. TOC COUNTY. (See S. C., 12 Otto, 625-634.) Municipal bonds-power to issue-Mississippi a citation, which was served July 8. The taking of this security was not the act of the court, but of the Justice. On the 20th of July, BOARD OF SUPERVISORS OF PONTOthe same Justice, being satisfied that the bond he had taken and approved was 'insufficient and inadequate security," "ordered that the appellant, within twenty days, * ** file an adlitional bond in the penalty of $3,000, with good and sufficient surety to be duly approved, and upon such notice as is required under Rule 116 of this (the Supreme Court of the District) court." Within the time required by this order, the appellant presented to the Justice, for approval an additional bond for the required amount; but it does not appear that this bond was ever accepted. The appellant fearing, as he alleges, that the court below will proceed to carry its decree into effect pending this appeal, now asks that a writ of supersedeas may issue [371] to stay any such proceeding. When the original bond of $1,000 was accepted by the Justice and the citation signed, an appeal was allowed and security taken, which operated as a supersedeas. That transferred the jurisdiction of the suit appealed to this court. As this allowance was the act of the Justice of the court and not of the court itself, no such question is presented as was decided in Goddard [Phillips] v. Ordway, 101 U.S.,745 [XXV.,1040], where we held that if the allowance was the judicial act of the court in term time, it might, like any other order in the suit, be set aside on proper showing during the Term. The power of the Justice over the appeal and the security, in the absence of fraud, was exhausted when he took the security and signed the citation. From that time the control of the supersedeas, as well as the appeal, was transferred to this court, and even here, as we held in Jerome v. Mc Carter, 21 Wall., 17 [88 U. S., XXII., 515], in the absence of fraud, the action of the justice or judge in accepting the security, within the statute and within our rules adopted for his guidance, was final, so far as it depended on facts existing at the time the security was accepted. It follows that the supersedeas, which resulted from the taking of the security on the 29th of June, is still in force and has never been vacated. Consequently, the court below is without power at this time to proceed with the execution of the decree appealed from, and we will presume that upon an intimation of that kind from us it will not attempt to do so. Should an application be made to us to increase the security on the ground of a change "in the circumstances of the case, or of the parties, or of the sureties on the bond," so that security which was good and sufficient" at the time it was taken " does not continue to be so," Jerome v. McCarter, supra, or to set aside the bond which was accepted, on the ground that its acceptance was procured by fraud, R. R. Co. v. Schutte, 100 U. S., 644 [XXV., 605], we can then determine whether the supersedeas now in force shall be vacated; but on the case as it now stands we think the court below is without power to proceed in the execution of the decree which has been appealed from. Motion denied, without prejudice to its renewal should it be necessary. True copy. Test: ing municipal bonds, no recovery can be had in an 2. Unless the power to issue bonds for the payment created. of counties in Mississippi, have no other financial 4. When the state statute conferred an extraordi- Submitted Oct. 12, 1880.. Decided Nov. 15, 1880. IN The case is fully stated in the opinion of the Messrs. Hallam & Perkins and A. G. Mr. Van H. Manning, for defendant in Mr. Chief Justice Waite delivered the opin- [626] ion of the court. On the 10th of March, 1852, the Legislature of Mississippi passed an Act to incorporate the Mississippi Central Railroad Company. Sections 17 and 18 of that Act are as follows: 66 Section 17. Be it further enacted, That the Boards of Police of the several Counties of Madison, Holmes, Carroll, Yallabusha, Lafayette and Marshall, together with such other counties as are adjoining or adjacent to the counties through which said railroad may pass, may for their respective counties subscribe for capital stock in said railroad, not to exceed in amount two hundred thousand dollars for any one county; Provided, however, That an election shall be holden in the county for and on account of which said stock is proposed to be subscribed, by the qualified electors thereof, at the regular precincts of said county, ten days' notice of the time of holding such election, and of the amoun proposed to be subscribed, being first given by the Board of Police; and if at such election a majority of the qualified electors voting shall be in favor of such subscription, then said Board shall make such subscription for and in behalf of the county for the amount specified; but if a majority of those voting shall be opposed to such subscription, the same shall not be made. Section 18. Be it further enacted, That said James H. McKenney, Clerk, Sup. Court, U.S. of this Act, may direct that, whenever any tax Cited-105. S.. 262, 286. the payment of the capital stock so subscribed by the county, which tax the several Boards of Police are hereby authorized to assess and collect from the taxable property or real property of the county as said Board may elect, the sheriff or tax collector shall issue to the person paying such tax a certificate specifying the amount of tax so paid and on account of what railroad the same is paid, which said certificate or certificates shall be transferable by indorsement; and whenever any person, either by payment of taxes as aforesaid, or by indorsement as aforesaid, shall hold a certificate or certificates, in amount equal to one or more shares of the capital stock of said railroad company, he may present the same to the treasurer of said company, who shall thereupon take up the said certificate or certificates and issue, to the holder of them, certificates for one or more shares of stock in said company; and such holder of 627] said certificate of stock shall be, for such stock, substituted to the right of the county as a stockholder to the number of shares named in said certificate." On the 19th of April, and during the same session of the Legislature, a supplemental' Act was passed, by which, if the Act should be approved by a vote of the several counties through which the road might be located, a tax of five per cent on the assessed value of all lands lying within five miles and two and one half per cent on all lying over five miles and under ten of the road, was to be collected annually for a term of four years to aid in the construction of the road. Section 4 of this Act is as follows: "Section 4. Be it further enacted, That, whenever any sheriff or tax collector shall collect any tax by virtue of this Act, he shall give to the person or persons paying the same a certificate therefor, which certificate shall be transferable by indorsement; and whenever any person or persons, either by payment of taxes as aforesaid or by indorsement as aforesaid, shall hold a certificate or certificates in amount equal to a share of the capital stock of said railroad company, he may present the same to the treasurer of said company, who shall thereupon take up the said certificate or certificates and issue, to the holder of them, a certificate for a share of stock in said company, which certificate shall entitle such person to all the rights and privileges of a stockholder in said railroad company.' On the 23d of November, 1859, the Memphis, Holly Springs and Mobile Railroad Company was incorporated. Section 7 of that Act of incorporation gave authority to the Board of Directors "To issue, sell, negotiate, mortgage, pledge or hypothecate the bonds or notes of the company, as well as any notes, bonds, scrip, Certificates or other property for the payment of money or other property which said company shall or may receive as donations, or in [628] payment of subscriptions to the capital stock of said company or other dues thereto." Section 8 provided that the Board of Directors might require each subscriber, at the time of subscribing or at any time thereafter, to pay a part not exceeding ten per cent of his subscription to the capital stock in cash, and that no further Tayment should be demanded until in the opin100 of the Board a sufficient amount of the capital stock had been subscribed, with the means and credits of the company, to construct the road. No calls were to be made、xcept on thirty days' notice, and the amount called for at any one time could not exceed thirty per cent to each subscriber of the amount of his subscription. Section 15 is as follows: "Section 15. Be it further enacted, That the sections 17 and 18 of an Act passed by the Legislature of this State, and approved March 10, 1852, entitled 'An Act to Incorporate the Mississippi Central Railroad Company,' regulating county subscriptions to the capital stock of said company, be and the same are adopted as part of this Act, so far as the provisions of the same may be applicable." By section 16 the company was authorized to consolidate with other railroad companies. No organization is shown to have been perfected under this Act and, February 20, 1867, another Act was passed, of which the title and the only portion pertinent to this case are as follows: "An Act to Revive and Amend an Act Entitled 'An Act to Incorporate the Memphis and Holly Springs and Mobile Railroad Company,' Approved November 23, 1859, and for Other Purposes. Section 1. Be it enacted by the Legislature of the State of Mississippi, That the above recited Act be and the same is hereby revived, and that the style of said Railroad Company shall hereafter be known as the Memphis, Holly Springs, Okolona and Selma Railroad Company'; and, as many of the original incorporators are now dead, that N.B. Forrest" (etc., etc.) all of the State of Mississippi, together with those who may hereafter become stockholders, their successors, etc., shall be said corporators. Section 2. Be it further enacted, That said Company shall have sixteen years in which to construct the said road, and shall commence the same in three years from and after the passage of this Act.' When these several Acts were passed, the Constitution of Mississippi, adopted in 1832, was in force. This Constitution contained no limitation on the power of the Legislature to authorize counties to become stockholders in or to lend their credit to railway or other corporations. A new Constitution went into effect in 1868, article XII. section 14 of which is as follows: "The Legislature shall not authorize any county, city or town to become a stockholder in or lend its credit to any corporation, unless two thirds of the qualified voters of such county, city or town, at a special or regular election to be held therein, shall assent thereto." At a special election held for that purpose on the 20th of November, 1869, the people of the County voted a subscription to the capital stock of the Memphis, Holly Springs, Okolona and Selma Company, and on the 21st of July, 1870, the name of the Company was changed by a special Act of the Legislature to the Selma, Marion and Memphis Railroad Company. On the 19th of April, 1872, a general Act was passed "To Authorize Counties, Cities and Towns to Subscribe to the Capital Stock o Railroads," which gave any county through which any railroad should pass authority to subscribe any sum to the capital stock, if two thirds of the legal voters should give their assent in the manner specially provided for. Such [629] subscriptions were to be paid in the twentyyear coupon bonds of the county, bearing interest at the rate of seven per cent per annum. Taxes were to be levied and collected to pay the principal and interest of these bonds as they matured; and it was further also provided "That : certificates of shares in the capital stock of said companies shall be issued to all persons paying taxes, for the principal and interest of said bonds, to the amount paid by them, whenever the receipts for the taxes so paid shall be equal to one or more shares of the capital stock.' Under date of July 1, 1872, the Board of Supervisors of Pontotoc County, which was the legal successor of the Board of Police, under the authority of the vote of November 20, 1869, issued to the Selma, Marion and Memphis Railroad Company coupon bonds, having twenty years to run, and bearing interest, payable semiannually at the rate of eight per cent per annum, amounting in the aggregate to $150,000. The plaintiff being the holder for value of a [630] large amount of the coupons of these bonds, payable January aud July, 1873, and January, 1874, which were not paid on presentation at maturity, brought this suit for their recovery. The court below gave judgment against him as ou demurrer to the declaration, which presented substantially the foregoing facts, and to reverse that judgment this writ of error has been brought. other provisions of the Act of 1859, into which these sections were incorporated by adoption. [631] Undoubtedly, section 17 authorized a subscription to the stock of the Railroad Company for the County, after a majority of the electors of the County had in the proper way given their consent; and it is possible, if there had been nothing more, that, under the rule of construction stated in Lynde v. Winnebago Co., 16 Wall., 6 [83 U. S., XXI., 272], the subscription might have been paid in bonds. It seems to us, however, that the provisions of section 18 are such as to exclude any such presumption, By that section, the Boards of Police (Supervisors) were authorized to assess and collect a tax on the taxable property or the real property of the County, at their election, For the payment of the capital stock so subscribed." No other mode of payment was provided for. This, of itself, when considered in the light of the settled policy of the State to require the current liabilities of counties to be discharged by current taxation, would seem to indicate an intention not to confer upon the counties the power of funding this kind of liability. But when it is taken in connection with the further provision of the same section, which authorizes the Boards of Police to direct that the railroad company issue to the tax payers, in lieu of the county, stock to the amount of their taxes paid, the intention is even more apparent. As stock The controlling question in this case is, whether was to be issued by the company to an amount there was authority in law for issuing the bonds equal to the taxes paid, it would seem as though to which the coupons sued on were attached. If it could not have been supposed that, before the there was not, it has always been held that no tax was collected, any payment of the subscriprecovery can be had in an action on the bonds tion was to be made or any stock issued that or coupons. It is also settled that, unless the could in any manner interfere with this privipower to issue bonds for the payment of munic-lege of the tax payers. So, too, the Company ipal subscriptions to the stock of railroad com- could only be required to issue stock upon and panies is given in express terms or by reasona- to the amount of the subscription. As the tax ble implication, no obligation of that kind can payer was to be entitled to stock to the full be created. amount of his payment, it follows that the tax In Mississippi, as a general rule, the Boards must have been intended to pay the subscripof Supervisors of counties have no other finan- tion, and not bonds. We are not unmindful of cial powers than To levy such taxes as may the fact that the language of this part of the be necessary to meet the demands of their re- section is such as to leave it optional with the spective counties," and to "Direct the appro- Board to give this direction or not; but it may, priation of the money that may come into the nevertheless, be referred to, as we think, to treasury. Code, 1880, secs. 2148, 2158; Code, strengthen the presumption arising from the 1857, ch. LIX., sec. IV., arts. 16, 30. This, it other provisions, that the subscription was not has been held by the highest court of the State, to be paid through taxation, directly or indigives no power to borrow money. In Beaman rectly, until the money to be raised in that way v. Leake Co., 42 Miss., 247, decided in 1868, the had actually been collected. This statute concourt, referring to an Act then under consider-ferred an extraordinary power on the Boards ation, passed in December, 1863, but which in of Police. It authorized them to create a new no manner affects this case, said: "The Act liability for their respective counties, and projust referred to is the only one of a general vided a special way of discharging that liabilnature empowering Boards of Police to borrow ity. The liability and the mode of discharge money, and without some such Act they could were provided for in the same statute. This not lawfully do so in their official characters." being so, the mode prescribed is exclusive of The policy of the State, from its earliest his- all others. tory, seems to have been to require municipal This case differs materially from Lynde v. organizations to meet their current liabilities by Winnebago Co., supra. There the tax voted current taxation; and in Hawkins v. Carroll Co., was to be levied annually during a period not 50 Miss., 762, it was expressly declared that exceeding ten years, and the amount for each "The grant of power to such a body of an ex-year definitely fixed. As this was done for the traordinary character, such as is not embraced in the general scope of its duties, must be strictly construed." 64 Such being the general law of the State, we come to consider the special legislation on which this case depends, that is to say, sections 17 and 18 of the Act of 1852, in connection with the purpose of building a court-house, the court [632] company the amount subscribed when, by the terms of the subscription, that obligation was to be met. As the statute on its face contemplated no delay in raising the money by taxation, no implication of a power to borrow in anticipation of the tax can arise. The subscription might be made, but the money must be raised by taxation to meet it. The railroad company cannot complain; for when it received the subscription it knew or ought to have known from what source the money was to come to meet the payment, and it impliedly gave its consent to such delays as were necessarily incident to the mode of collection. The other provisions of the charter, as to calls on subscribers to meet their subscriptions, were not necessarily applicable to counties. Counties were to pay as they agreed, and when the tax was collected. It may be true, as is urged, that the collection of the full amount of the subscription in a single year would be oppressive, but it by no means follows that this must necessarily have been done. These sections are to be construed in the Act of 1859 precisely as they would be in that of 1852, except so far as they may have been modified by the other provisions in 1859. The original Act of 1852 is to be considered in connection with the supplemental Act passed a little later. Being in pari materia, and enacted at [633] the same session of the Legislature, they are to be taken together as one law. From the supplemental Act, it is apparent that the object of the Legislature was to raise money by taxation, to aid in the construction of the road, and to require the company to give the tax payers stock for the money they paid. This is entirely inconsistent with any idea of the payment of interest. As the special tax on adjoining lands was large, it was extended over a period of years. This amount was fixed, and not left to the discretion of anyone. In respect to the County at large, the plan adopted was different. There it was left for the people to determine for themselves how much the subscription should be and for the County and the company to agree when it should be paid. In this way, the tax might be extended over a series of years; but as stock was to be issued by the company for all payments made, it could not have been intended to tax beyond the actual amount of the subscription. Consequently, if time was given by the company to make the payment, it must be without interest. This construction of the Act is strengthened by what actually happened. The revived and amended charter was passed in 1867, and the subscription voted in 1869. When the subscription was made does not appear, but certain it is that no bonds were issued to make the payment until after the policy of the State in respect to funding this class of liabilities was changed by the Act of 1872. Then, although confessedly that Act did not apply to this case and its provisions were not followed, the subscription was paid by binding the tax payers of the County to pay in the aggregate $390,000, instead of $150,000, as was voted. This, we think, could not be done. It is further argued that, because the 7th section of the Act of 1859 authorized the railroad Company to sell any bonds it might receive as donations or in payment of subscriptions, the power of counties to issue bonds in payment of their subscriptions must be inferred. We cannot so understand that provision. This gave power to sell bonds if, in the course of business, they should get to be the property of the company, but the implied prohibition against their issue by counties still remains. It is also said that the provision in section 18 for giving individual tax payers stock for the amount of their taxes paid cannot be considered as in any manner precluding an implication of the power to issue bonds, because the same provision is found in section 4 of the Act of 1872. [634] There is this difference between those provisions of the two Acts: in that of 1852 the railroad company is to issue the stock to the tax payer, while that of 1872 simply says that certificates of shares shall be issued, without saying by whom. But it is not for us at this time to determine the legal effect of that part of the Act of 1872. Power to issue bonds is given in express terms by that Act, and stock was to be issued to all persons "paying taxes for the principal and interest of said bonds;" while in the Act of 1852 the tax was to be collected "for the payment of the capital stock so subscribed,” and stock was to be issued by the company to the persons holding certificates of the payment of this tax. On the whole, we think the court below was right in holding that the issue of bonds in this case was not authorized by law. Different questions will arise if the railroad company or anyone who has been subrogated to the rights of the company shall attempt to enforce the payment of the original subscription by the County. Judgment affirmed. Dissenting, Mr. Justice Swayne, Mr.Justice James H. McKenney, Clerk, Sup. Court, U. S. Cited-102 U. S., 639; 103 U. S., 777; 108 U. S., 123; 111 U. S., 411. HENRY HAUENSTEIN, JOHN HAUENSTEIN, by His Guardian, FREDERICK HAUENSTEIN, ET AL., Piffs. in Err., v. JOHN J. LYNHAM, Escheator for the COMMONWEALTH OF VIRGINIA. 131 US cxci Appx Escheator of the Commonwealth of Virginia, and When a party is sued in his official character, as he holds the funds sued for in that capacity, and he is charged with no official delinquency, he cannot it. The costs can only be charged upon the funds be made liable, personally, for the costs of the plaintin his hands as Escheator. [No. 133, 1879.] Submitted Nov. 15, 1880. Decided Nov. 22, 1880. IN ERROR to the Supreme Court of Appeals of the State of Virginia. On motion to correct judgment. Mr. W. L. Royall, in support of the motion. No counsel appeared in opposition thereto. Mr. Chief Justice Waite delivered the opinion of the court: This motion is denied. The defendant in er-, cessor in interest, the case was submitted to the True copy. Test: The plaintiff asserted title to the land in controversy under a patent from the State of California, and the defendant under patents from the United States. The title of California rests upon the Act of Congress granting that State the 16th and 36th sections of every township for school purposes; and that of defendant on the Acts of Congress concerning the possession and sale of the mineral lands. As the question to be decided necessarily in James H. McKenney, Clerk, Sup. Court, U. S. volves the title to much other mineral land in California, in which the authorities of the State [167] IVANHOE MINING COMPANY, Plff. in conflicting views of the rights of the State and Err., v. the General Government, the State of California KEYSTONE CONSOLIDATED MINING in the argument. COMPANY. (See 8. C., 12 Otto, 167-176.) The defendant only claims part of the land embraced in plaintiff's patent, and denies possession of that for which no title is asserted; Grant of public lands to California-school lands and, as no possess on is proved beyond that for -settlement. *1. The grant of the 16th and 36th sections of public lands, to the State of California, by the Act of March 3, 1853, was not intended to cover mineral lands; but such lands were excluded from that grant as they were from all others by the settled policy of the General Government on that subject. 2. The settlement required by the 7th section of the Act of 1853, which defeats the grant of those sections for school purposes need not be precisely the same, either in regard to the acts to be done or the character of the settler, as is required under the general Preemption Law of 1841. The settlement on the school lands, under the Act of 1853, is governed by that Act. 3. Whenever there exists, at the time the government survey is made of such a section, a settlement, by dwelling-house or cultivation, on any portion of said section on which some one is residing and asserting claim to it, the title of the State to that portion does not vest, but the alternative right to other land as indemnity does. Sherman v. Buick [XXIII.,] and Natoma Water Co. v. Bugbey [XXIV.,] commented on and explained. [No. 637.] Argued Nov. 4, 5, 1880. Decided Nov. 22, 1880. IN ERROR to the Circuit Court of the United the of California. The case is stated by the court. Mr. Benj. F. Butler, for the State of Cali fornia. Mr. Chas. Devens, Atty-Gen., for the United States. Messrs. Geo. A. Nourse and S. M. Wilson, for defendant in error. Mr. Justice Miller delivered the opinion of the court: The action in this case was brought originally in the State Court of California by Daniel W. Gillette against the present defendant in error, to recover possession of the east half of section 36, in township 7 north, range 10 east of Mount Diablo meridian, and in the progress of the case [168] it was transferred to the Circuit Court of the United States, where judgment was rendered in favor of the defendant. The plaintiff in error, having been substituted for Gillette, as his suc*Head notes by Mr. Justice MILLER. which the defend int defends, only that is in con- The court blow finds that this is mineral tivated by the owners of the Keystone mining claim. On the 18th June, 1870, one Henry Casey applied to the State authorities to purchase the half section of land on which this town and these mining claims were located, and a state patent was issued to his vendee, Gillette, October 3, 1872. The township in which this land lies was surveyed in the field in March, 1870, the survey approved September 3, 1870, and the plat filed in the United States Land-Office at Sacramento, October 7, 1870, and within three months after this latter date, the application of the defendant was made for patents for the three mining claims, and the patents issued July 14, 1873. The right to these patents, and the claim of the Town of Amador City, were contested before the register and receiver, the Commissioner of the General Land-Office, and the Secretary of the Interior, by the State of California and the parties claiming under her, and the decision was adverse to the title of the State. The question and the only question presented for our consideration is very sharply presented |