v. City of Milwaukee, 12 Wis., 93; Hasbrouck v. City of Mil., 13 Wis., 37: Jackson Co. v. La Crosse Co., 13 Wis., 490; Atkins v. Randolph, 31 Vt., 227; State v. Kennon, 7 Ohio St., 546. The bonds in question were issued by the Board of Commissioners without the consent of the defendant.

No power is conferred upon the County of Sheboygan, to issue the bonds. No authority is specifically conferred upon the County of Sheboygan, to aid in the construction of a railroad. Hasbrouck v. Milwaukee, 13 Wis., 37. But the power is given to another Corporation of five men, contrary to sec. 22 of art. 4 of the State Constitution.

Again, if no authority has been given to the County as a body politic and corporate to make the bonds, could the County ratify or consent to their being issued for the County by some indifferent person or corporation?

Turnpike Co. v. Miller. 5 Johns. Ch., 101; Darby v. Condit, 1 Duer, 599; Clark v. The City of Janesville, 13 Wis., 417; Town of Rochester v. Alfred Bank, 13 Wis., 432.

Can a county exercise its corporate powers in any other way than through its constitutional functions? Can the Legislature confer such powers upon five men? If so, they can be conferred upon one man or upon the whole people. Is the County liable for the undertakings of outsiders? Does the request of an unauthorized agent bind the principal or the agent?

The vote of the people, if a vote was ever had, gave no additional force or validity to the bonds. If they were void in their inception, nothing could give them life.

Unless the legal voters, or the majority of a county can bind it by a contract for and on behalf of the county, they cannot ratify or consent to the issuing of bonds for any purpose. If the commissioners are agents of the county, their power and authority should be shown. Mr. M. H. Carpenter, for defendant in

error:

In reply we say:

tion, shall be elected by the electors of the respective counties, or appointed by the Board of Supervisors, as the Legislature shall direct."

The commissioners or Board of Supervisors of a county, in the exercise of their general powers as such, have no authority to subscribe stock to railroads, and bind the people of the county to pay bonds issued for that purpose without special authority conferred upon them by the Legislature. But when special authority is given to the people of a county to do these acts, and bind themselves by the issue of such bonds, the Legislature may properly direct the mode in which it shall be effected. The persons specially appointed to act as agents for the people have a ministerial duty to perform in issu ing the bonds, after the people, at an election held for the purpose, have assented that they shall be bound.

Such persons, in performance of their special duty, are in no proper sense "county officers.' They do not exercise any of the political functions of county officers, such as levying taxes, &c. They do not exercise "Continuously, and as a part of the regular and permanent administration of the government, any important public powers, trusts, or duties." State v. Kennon, 7 Ohio St., 562.

An officer of the county is one by whom the county performs its usual political functions, or government functions. Any other persons appointed by the Legislature and the people of the county, would be as competent to execute the bonds of the corporation as the supervisors. They are the lawful agents of the people for this special purpose, and though nominated by the Legislature, they cannot act without the assent of the citizens of the county, ascertained in the manner directed by law; and, having so acted, the county cannot now repudiate their acts.

The court below very properly overruled this defense, and their judgement is, therefore, affirmed,

with costs.

State v. Kennon, 7 O. St., 562.

Mr. Justice Grier, delivered the opinion of the court:

It is admitted that the bonds in question were issued in conformity with the provisions of an Act of the Wisconsin Legislature, entitled "An Act to Authorize the County of Sheboygan and the Several Towns in said County, to Aid in construction of a Railroad,"approved March 9th, 1854. By this Act, the bonds issued in pursuance thereof are made "Full and complete evidence, both in law and equity, to establish the indebtedness of said County of Sheboygan according to their tenor and effect." The defendant below objected that this Act was unconstitutional and void, because "The Legisla ture, in and by said Act, assumed to appoint five persons therein named, and to clothe them with the power of county officers, contrary to the Constitution of the State," which provides that "All county officers whose election or ap pointment is not provided for by this Constitu

CHARLES COMSTOCK ET AL., Piffs. in Er.

v.

JEFFERSON CRAWFORD.

(See S. C., 3 Wall., 396-407.)

Jurisdiction cannot be attacked collaterally-recitals in record, evidence to show-the court having jurisdiction, regularity of steps, how questioned-sale of property of deceased person to pay debts-particularity of statement of debts and proof on-amount of sales.

When the jurisdiction of a court of limited and special authority appears upon the face of its profor mere error or irregularity. ceedings, its action cannot be collaterally attacked

Recitals in the record are prima facie evidence of the facts recited, to show the jurisdiction of the

court.

When the jurisdiction of the court has once attached, the regularity or irregularity of subsequent steps can only be questioned in some direct mode prescribed by law.

Where, by a local statute, the representation of the insufficiency of the personal property of a de

ceased person to pay his just debts, was the only act required to call into exercise the power of the court to sell the real estate, jurisdiction for that purpose was conferred by such representation. Particularity of statement with reference to the property of the deceased, or to the debts which he owed, was not required. The sufficiency of the proof upon which the court took its action, is not a matter open to consideration in a collateral manner. A record, of the subsequent license to the administrator to sell the same property and its second purchase by the defendant, was properly excluded.

There is no force in the objection to the sale, that the proceeds of sale by the administrator of lands of the intestate amounted to more than the amount of his alleged debts remaining unpaid.

The plaintiffs in error claim as heirs of one Matthias C. Comstock, who died intestate on or about the 29th day of November, 1838, leaving personal property in Iowa County, in the then Territory of Wisconsin. Charles Comstock, a brother of the deceased, was appointed administrator by the Judge of Probate of Iowa County; but as he was unable to attend to the business, he resigned and returned the letters of administration, without taking charge of the estate or entering upon the discharge of the duties of the trust. With his resignation, directed to the judge of probate of 31st October, 1839, Charles Comstock requested the judge of probate, to "grant letters of administration de novo to his friend and brother-in-law, Mr. Edwin Ripley."

The resignation of Charles Comstock was accepted, and after due proceedings had, on the 12th day of February, 1840, Edwin Ripley, whose wife is a sister of the deceased and of Charles Comstock, was appointed administrator, which, for aught that appears to the contrary, was satisfactory to all concerned. There is nothing to show that his appointment or acts were ever controverted, litigated or questioned until the lapse of nearly a quarter of a century after he entered upon the discharge of his trust. Charles Comstock and others, at whose request Mr. Ripley was appointed now propose to litigate his acts, not directly but collaterally, and to recover the land which the administrator sold, to pay debts of the deceased, and which is in the possession of bona fide purchasers.

The defendant, on the trial, introduced and read in evidence an exemplification of the record of the Probate Court of Grant County, showing that Edwin Ripley had made it apparent to said Probate Court of Grant County, on the 3d day of April, 1845, that he was administrator of said estate in Joe Daviess County, Ills., and also that he was administrator in the Territory of Wisconsin, having been appointed by the Judge of Probate of Iowa County, Wisconsin Territory.

Said exemplification also contained the petition or application of said administrator to sell so much of the real estate of the deceased as will pay his just debts, amounting to the sum

of $8,000; which petition is in due form. The record shows that the court duly considered said petition and ordered that notice thereof be given by publication in the Wisconsin Herald," for four weeks successively, the last publication to be prior to the third Saturday of May, 1845, which was the day appointed for a hear ing; which notice was given and published, and proof thereof filed and recorded, and the same was read in evidence.

The record shows that at the time and place appointed by the Probate Court, a hearing was had, and at that hearing that it was "made to appear unto that court that it was necessary licensed and authorized and empowered to make and proper that said administrator should be sale of the real estate of said deceased, situated in Grant County, or so much thereof as will enable said administrator to pay the sum of $8,000 debts due and owing from said estate, due proof of the existence and amount of said debts being made to this court," etc.

The record also shows that the administrator gave bonds; that the same was approved by the court, and that thereupon the license issued.

The original license under the seal of the court, with the original oath required by law indorsed thereon, was produced and read in evidence, the defendant having first given parol testimony that said license was issued to and retained by, Edwin Ripley.

Said license empowered and authorized him to sell so much of the real estate of said deceased at public auction, agreeably to law, as will be sufficient to pay the sum of $8,000 and the legal costs and charges attending said sale.

No objection was urged or question raised at the trial as to the genuineness of said license, oath or notices of sale, nor any point reserved as to the sufficiency of the latter or of the publication thereof.

The defendant also produced and read in evidence the deeds of the administrator, made and executed under the sale, pursuant to the license covering the lands described in the declaration, and which deeds are in the usual form of administrator's deeds, recite the license at length, and were duly issued, witnessed, acknowledged and recorded in the office of the Register of Deeds of Grant County.

These were all of the records, documents, notices and testimonies that the defendant produced.

The action was ejectment for the land sold, bought by the heirs of the deceased. The defendant had judgment in the court below, and plaintiff brought the case here on error.

Messrs. Buttrick, Hill and Brown, for plaintiffs in error:

The admission of this record was error. 1. The appointment of a general administrator for the estate of a non-resident intestate was void.

2. If the first letters were good, the second are bad. Unless enabled by statute, administrators cannot resign.

The only provision relative to the estates of non-resident intestates which existed in Wisconsin prior to February 20, 1845, is to be found in the 2d section of "An Act Concerning the Appointment of Public Administrators and Their Duties."

If no relatives or creditors appeared, it would

quired into and determined the existence of the fact, then the defendant in error might, perhaps, claim immunity under Grignon v. Astor, 2 How., 319.

But is it claimed that because the fact is recited in the license, it is conclusive? Our answer is that Sibley v. Waffle, 16 N. Y., 189, is precise

It is very evident that the court had not the subject-matter before it.

cause

1. The court has not jurisdiction of the heirs. The case represented by the application did not warrant the issue of process.

The representation should have been so plain and explicit that it would make a prima facie case. The amount and description of the goods and chattels and a specific statement of the just debts which the deceased owed, were essential facts which were to be shown to the court before it could act.

The names and residences and the ages of the heirs should have been specified, so that the court could determine exactly what process to issue.

Nothing appears to warrant the publication which was made.

2. The court did not find facts sufficient to warrant the issuing of a license.

This is the main point in our case. The record shows that Ripley filed a certificate, and that it appeared to the court that it is necessary and proper that a license should issue and that due proof of the existence and the amount of the debts was made; but the all important face, that the goods and chattels belonging to the estate were insufficient to pay them, nowhere appears unless we resort to the contents of this certificate.

The case is not one in which a license might issue.

The judgment of Charles G. Thomas, amounted to nothing and is, probably, all there was before the court relative to debts, personalty or anything else.

The fact essential to the validity of the order should have been proven to the satisfaction of the Probate Court of Grant County, and that court at least have recited it, a fact found upon the record.

We are not without direct authority upon this point.

3. The order or decree is a nullity; it is void for uncertainty.

Grignon v. Astor, 2 How., 319, was, by the court below, considered as a decisive answer to the objections taken to this record.

That case has no application here, for the record there emanated from the court of general jurisdiction, while the foregoing record comes from a court of special, limited and inferior jurisdiction. There the record was perfectly complete. In the language of the court it was "absolute verity." It appears there that an adjudication had been made, the necessity of the sale established, and to meet it, specific real property was designated. The judgment was in rem and, of itself, operated to devest the title of the heirs. After decree it remained for the ministeral officer to perform it. The decree was conclusive; but here there is nothing definite and certain; no judgment in rem; nothing to show that specific property had been affected. Everything is left to the discretion of the administrator. This discretion should have been exercised by the court. The necessary amount of property and its description was as much to be ascertained and defined by the judgment, as the facts showing the necessity for a sale. 4. There is no proof of a license.

The 4th section of the general Act (R.S. 1839, p. 296) prescribes that the probate judge shall keep a registry of wills, administration accounts, decrees, orders, determinations and other writings which shall be made, granted or decreed upon by him.

The license came from the custody of Edwin Ripley. There seems to be no way to prove a record but by exemplification. The law requires a record; nothing appeared to warrant its instruction. The deeds are not evidence of their recitals and, unless the power has been properly executed, are inadmissible for any purpose. Their admission was erroneous.

5. The license has not been executed. The oath does not appear. No sale appears.

The question, whether notice was or was not given, should have been submitted to the jury.

The instruction of the court to the jury, that defendant had shown title out of Comstock's heirs, was erroneous.

6 Pet., 729.

Hawkins v. Kemp, 3 East, 410; Thatcher v. | Powell, 6 Wheat., 119; Taylor v. Galloway, 1 Hamm., 232; Loomis v. McClintock, 10 Watts, 274; Young v. Lorain, 11 Ill., 636; Id., 643: Smith v. Hileman, 1 Scam., 323; Schmidt v. Gatewood, 2 Rich. Eq., 170; Denning v. Smith, 3 Johns. Ch., 332.

There was a distince offer of testimony on the part of the plaintiffs, to show collusion and and fraud between Ripley and defendant in error. The matters contained in the record, offered but ruled out, show a necessity for an investigation by the jury, of all the facts surrounding this sale. This was withheld.

The motion for a new trial was, therefore, improperly overruled. For these reasons we ask that the judgment below be reversed, and for a venire de novo.

Mr. Geo. W. Lakin, for defendant in

error.

Mr. Justice Field delivered the opinion of the court:

It is only necessary to examine the objections taken to the appointment of the first adminis trator, and the subsequent acceptance of his resignation, so far as they affect the jurisdiction of the probate court. It is well settled that when the jurisdiction of a court of limited and special authority appears upon the face of its proceedings, its action cannot be collaterally attacked for mere error or irregularity. The jurisdiction appearing, the same presumption of law arises that it was rightly exercised as prevails with reference to the action of a court of superior and general authority.

By the Statute of Wisconsin, under which the administrator was appointed, the only facts necessary to give the probate court jurisdiction were the death of the non-resident intestate and the possession by him, at the time, of personal property within the Territory. Both of these facts are recited in the record of the proceed. ings produced by the defendant, which sets forth the letters of administration at large. These recitals are prima facie evidence of the facts recited. Barber v. Winslow, 12 Wend., 102; Potter v. Merchants' Bank, 28 N. Y., 641. They show the jurisdiction of the court over the subject. What followed was done in the exercise of its judicial authority, and could only be questioned on appeal, the mode provided by the law of the Territory for review of the determinations of the court. Whether there was a widow of the deceased, or any next of kin, or creditor, who was a proper person to receive letters, if he had applied for them, or whether there was any public administrator in office authorized or fit to take charge of the estate, or to which of these several parties it was meet that the administration should be intrusted were matters for the consideration and deter mination of the court; and its action respecting them, however irregular, cannot be impeached collaterally.

The same observations are applicable to the acceptance of the resignation of the first administrator, and the appointment of Ripley in his place. If the second appointment was ir regularly made, the irregularity should have been corrected on appeal.

But, independent of this consideration, there is nothing in the objection. The power to ac

cept the resignation and make the second appointment, under the circumstances of this case, were necessary incidents of the powers to grant letters of administration in the first instance. It does not appear that the first administrator ever took possession of the property of the intestate, or attempted to exercise any control over it; and his inability to act left the estate, in fact, without any administrator. The duty of the court, therefore, to provide for its proper administration could not otherwise have been discharged than by a new appointment.

But the principal reliance of the plaintiffs is placed upon the objections taken to the action of the Probate Court of Grant County in ordering the sale. With reference to these objections, as with reference to the objections taken to the original appointment of the administrator, it is only necessary to consider them so far as they affect the jurisdiction of the court.

The proceeding for the sale of the real property of an intestate, though had in the general course of administration, is a distinct and independent proceeding authorized by statute only in certain specially designated cases. But when, by the presentation of a case within the statute, the jurisdiction of the court has once attached, the regularity or irregularity of subsequent steps can only be questioned in some direct mode prescribed by law. They are not matters for which the decrees of the court can be collaterally assailed.

The Statute of the Territory provided that the real estate of a decedent might be sold to satisfy the just debts which he owed, when the personal property of the estate was insufficient to pay the same. And it authorized the probate court of the county where the deceased last dwelt, or in which the real estate was situated, to license the administrator to make the sale upon representation of this insufficiency, and "the same being made to appear" to the court. It also required the court, previous to passing upon the representation, to order notice to be given to all parties concerned, or their guardfans, who did not signify their assent to the sale, to show cause why the license should not be granted.

As thus seen, the representation of the insufficiency of the personal property of the deceased to pay his just debts, was the only act required to call into exercise the power of the court. The truth of the representation was a matter for subsequent inquiry. How this should be made to appear the statute did not designate, but from the notice required of the hearing upon the representation, it is clear that the necessity and propriety of the sale solicited were matters to be then considered. A license following such hearing necessarily involved an adjudication upon these points. The jurisdiction to hear was conferred by the representation; the authority to license followed from the fact which the court was required to ascertain and settle by its decision. In such case the decision of the court is conclusive. Van Steenbergh v. Bigelow, 3 Wend., 42; Jackson v. Robinson, 4 Wend., 437; Jackson v. Crawfords, 12 Wend., 534; Atkins v. Kinnan, 20 Wend., 242; Porter v. Purdy, 29 N., Y., 106; Betts v. Bagley, 12 Pick., 572.

The record of the probate court, produced by the defendant, states the fact that a written

Judgment affirmed.

102: 4 Sawy., 619; 6 Sawy., 285; 7 Sawy., 387, 400; 7 Cited 101 U. S., 425; 102 U. S., 464; 12 Bank. Reg., Biss., 423.

To this record it is further objected: 1st. That the representation, which was the preliminary step in the proceeding for the sale, did not give the amount and description of the personal property of the deceased, or a statement of the just debts which he owed; and 2d. That the order for the sale did not show that the personal property of the estate was insufficient to pay the debts, unless resort was had to the certificate of the probate justice of Illinois.

V.

WILLIAM E. HAVEMEYER, Piff. in Er., THE BOARD OF SUPERVISORS OF THE COUNTY OF IOWA.

(See S. C., 3 Wall., 294-304.)

Contract valid under laws and decisions when made, cannot be subsequently impaired by Legislature or courts-when this court will not answer question on division.

If a contract, when made, was valid by the constitution and laws of the State, as then expounded by the highest authorities whose duty it was to administer them, no subsequent action by the State Legislature or Judiciary can impair its obligation. proposition, and no facts are disclosed in the recWhere a question on division presents an abstract ord which show that it has arisen or can hereafter arise in the case, it is the settled practice of this court to decline to answer.

[No. 74.]

Argued Dec. 13, 1865.

Decided Jan. 2, 1866.

The answer to the second objection is, that the sufficiency of the proof upon which the court took its action is not a matter open to consideration in a collateral manner. It does not touch the question of jurisdiction.

Similar questions were presented for the consideration of this court, in Grignon v. Astor, 2 How., 319; Florentine v. Barton, 2 Wall., 210 [69 U. S.. XVII., 783]. That case turned upon the validity of proceedings for the sale of real property of an intestate under a statute almost identical in its provisions with the one under which the sale in the present case was made. And it was there held that the representation was sufficient to bring the power of the court into action; that it was enough that there was something of record which showed the subject before the court, and that the granting of the license was an adjudication upon all the facts necessary to give jurisdiction. That decision disposes of the particular objections stated to the sale in this case.

The record of the subsequent license to the administrator to sell the same property and its second purchase by the defendant, was properly excluded. It did not show, or tend to show, fraud in the first sale or any collusion between the administrator and the purchaser. The proceeding may have originated in a desire to remove doubts suggested as to the regularity of the original sale, but whether this was so or not, the first sale not being set aside, its validity could not be impaired by the second.

a certificate of division in opinion be

United States for the District of Wisconsin.

This is an action of debt to recover the amount of certain coupons attached to the bonds of Iowa County, exchanged for the bonds of the Mineral Point Railroad Company, in pursuance of ch. 117, Private and Local Laws of the State of Wisconsin, 1853. The case comes here on certificate of division upon the following points of law:

Mr. M. H. Carpenter, for plaintiff:

For years after the admission of the State into the Union, this provision, that "No general law shall be in force until published," was supposed to be satisfied by a publication in fact, and as a matter of general intelligence; and a general law was understood to be one applying to the whole State. Upon this theory, things proceeded in all departments of the government, including courts, until 1859, when the decision of our Supreme Court, reversing both branches of this theory, holding that every public law was a general law within the meaning of the Constitution, and that no publication of such a law could give it effect except one made in pursuance of some law directing the manner and place of publication.

Hewett v. Town of Grand Chute, 7 Wis., 282. The purchasers of municipal bonds parted with their money for them upon the assurance of the Legislature, the opinion of the highest law officer of the State, and the unanimous adjudication of our Supreme Judicial Tribunal, that the laws under which they were issued were private and local laws, and hence in force from their passage, without publication. This assurance was continued until June, 1859, long after all the bonds issued under these Acts had

NOTE.-Cases certified on division of circuit court;