State v. Lean, 9 Wis., 279.

These bonds were issued in 1853; were disposed of and were circulating in the market with full approbation of the Legislature, the peo ple of the county and every department, including the judicial tribunals of the State, until the year 1859; and during all these years in which these bonds were made and sold, they were valid and legel contracts, and would have been enforced by our state courts, upon the ground that the Acts authorizing their issuance were private and local laws, and were in force from their passage without publication. A contract, valid in its inception and legal when made, by the Constitution and laws of the State as administered and expounded in the State, must be held valid always and everywhere, or this court must deal a death blow to all commercial and international transactions.

Gelpcke v. Dubuque, 1 Wall., 175 (68 U. S., XVII., 520).

To give the late decisions a retroactive effect and follow them to the extent of declaring void, contracts which the State and state courts held valid when made, would render the right of citizens of another State to sue in the Federal

Courts " utterly useless and nugatory."

Rowan v. Runnels, 5 How., 134; Ohio Trust Co. v. Debolt, 16 How., 432; Gelpcke v. City of Dubuque, 1 Wall., 175 (68 U. S., XVII., 520). But, even conceding that this court can inquire into the validity of these contracts beyond the construction of state authorities and courts at the time the bonds were issued and sold, it is submitted, that this is not a "general law," within the true meaning of the Constitution of the State; and that the new decisions of our Supreme Court are not only to be rejected because they destroy vested rights acquired under the former decision of the same court, but because they are unsound in principle.

Austin, Province of Jurisprudence, 13, 14. An Act authorizing Iowa County, in its discretion, to subscribe to railroad enterprises generally, would be a law because it would authorize it generally to do acts of a class, but would not be a general law unless it authorized all counties in the State to do the same thing. It would be, if applying to Iowa County alone, a local law, and might be a public, local, or a private law.

A law which affects the whole community, is a general law.

Wright v. Paton, 10 Johns., 300.

The test by which we are to determine whether a statute is general or local, is this: does it affect the whole community, or only those residing in the particular district? If the latter, no matter how large that district may be, it is a local law; and a local law is one of the opposites of a general law.

Richards v. Easto, 15 Mees. & W., 251; Cock v. Gent, 12 Mees. & W., 234; 4 Co. Inst., 25; People v. Morris, 13 Wend., 325; People v.

But, if we were to concede this to be a general law and, therefore, not in force until published, we contend that, inasmuch as the law took effect within a few months after these bonds were issued, and after they had been voted for by the voters of the County, the County is now estopped by its permitting the bonds to be issued and sold to bona fide purchasers.

Clark v. Janesville, 13 Wis., 414; Foxcroft v. Mallett, 4 How., 353; Chicago v. Robbins, 2 Blackf., 418; Pease v. Peck, 18 How., 595 (59 U. S., XV., 518); Matter of Boyle, 9 Wis., 264; People v. Collins, 7 Johns., 551; Com. v. Fowler, 10 Mass., 290; Knox Co. v Aspinwall, 21 How., 544 (62 U. S., XVI., 210); Mills v. Gleason, 11 Wis., 490; Charitable Society v. Dedham, 1 Pick., 372; Edwards v. Grand Junc. R. R. Co., 7 Sim., 337; Gooday v. R. R. Co., 15 Eng. L. & E., 596; Story, Ag., sec. 253.

Suppose all the officers and incorporators of a bank have knowledge that its cashier claims the right to sign and issue its bills, and is doing so, and they are being passed from hand to hand as money; could the bank, after years of acquiescence in this conduct of its cashier, assert his want of authority and defend against such bills in the hands of a bona fide holder? Olcott v. R. R. Co., 27 N. Y., 546. Mr. E. G. Ryan, for defendant:

It is too late to contend, in the courts of Wisconsin or the Union, that a statute relating to a local municipal corporation, although a local Act, is not a general Act. Geographically, the law is local, but politically it is not.

Stow, C. J., 3 Chand., 256, 257; State v. Lean, 9 Wis., 284; Clark v. Janesville, 10 Wis., 176; Foole v. Alexandria, 3 Pet., 409; East Hartford v. H. B. Co., 10 How., 533; Sedgw. Stat. and Const. Law, 32.

Legislation affecting municipalities is of a general nature; such of it as relates to particular municipalities only, is local.

It is, virtually, an amendment of the charter of the Railroad Company to which it relates, which was a public Act by its scope and express declaration.

Sess. Laws, 1852, 630.

See Aspinwall v. Com. of Daviess Co., 22 How., 364 (63 U. S., 296).

The question, whether a statute is public or private, is judicial. No question of interpretation is more purely judicial. The Constitution, art. 7, exhausts the judicial power; and it is not competent for the Legislature to vest it in persons or officers other than such as the Constitution prescribes.

Atty-Gen. v. McDonald, 3 Wis.,805; 1 Wheat., 329, 331; Lafayette Co. v. Knowlton,2 Chand., 212; Atty-Gen. v. Brown, 1 Wis., 513; Ross v. Outagamie Co., 12 Wis., 26.

The first question certified to this court remains: whether the Act of the Legislature of Wisconsin, set forth in the record, is a general law, within the meaning of sec. 21 of art. 7 of the State Constitution.

The 7th section of the Act imposes the duty of annual taxation, to provide for the payment of its bonds to be issued under the Act, on

term of this court. In all these cases there was authority of law, and their application here is not perceived. In Gelpcke v. Dubuque, this court did not refuse to follow the decisions of the Supreme Court of Iowa, but only elected which of two rules of decision that court would follow. All the cases in Wallace are consistent with the principle in Knox Co. v. Aspinwall, that there must be statutory authority, and that the purchaser must look to the statutory authority for their issue. The court, throughout, keeps plainly in mind the distinction between acts void for want of authority, and acts irregular under authority, as the court states the defense in Mercer Co. v. Hackett. Not that no law exists to authorize their issue, but that the bonds were not made in pursuance to the Acts of Assembly authorizing them. A careful examination of these cases will show their entire consistency with the rulings of the Supreme Court of Wisconsin, and with the decision of this court in Aspinwall v. Daviess Co., 22 How., 365 (63 U. S., XVI., 296). In that case there had been statutory authority, but before the authority had been fully executed, a new constitutional provision, repugnant to the authority had been adopted. This court held that the authority was controlled by the Constitution, and that the execution of the authority so controlled was void. That decision seems to govern this case. There the Constitution rescinded a granted and partly executed authority; here, the Constitution withheld an inchoate authority executed while withheld. The same principle controls both cases; the apparent authority is subject to the Constitution, and those dealing under it are bound to look to the Constitution. Caveat emptor.

The decisions, in all these cases, and that sought by the defendant here, are fundamentally based on a well known principle, often asserted and applied by this court. Corporations, in their very nature, have only delegated and special powers which they cannot exceed; and persons dealing with them are bound by the extent of the powers so delegated. In cases of private corporations, they are bound to inquire; in cases of public corporations, they are charged with

notice.

Mr. Justice Swayne delivered the opinion of the court:

The case came into this court from the Circuit Court of the United States for the District of Wisconsin, upon a certificate that the judges of that court were divided in opinion upon the following questions:

3. Whether, if the said Act is such a general law, any act or omission of the said County, its officers or electors, short of an election under the Act, after the Act was published in October, 1853, will render the bonds valid, or estop the defendants from questioning their validity, in the hands of a bona fide holder.

In the view which we have taken of the first two questions, they may be properly considered together.

Article 7, section 21, of the Constitution of Wisconsin, provides that "No general law shall be in force until published."

The 13th section of the Act of 1852 makes it the duty of the Secretary of State and the Attorney General to divide all the laws passed by the Legislature into two classes, and directs that each class shall be published in a separate volume; that the first class shall include laws of a general nature; the second class, all laws which are not included in the first class; and that "The title pages of the respective volumes shall express whether they contain Acts of a general nature or the private and local Acts," &c.

The statute upon which the questions here under consideration arise, was passed subsequently to the taking effect of this Act.

The Secretary of State and the AttorneyGeneral decided that the Act was not a general law, but a local Act; and it was classified accordingly, but the volume containing it was not published until after the action of the voters which it authorized had been taken and the bonds had been issued. The decision, as to the character of the Act, was made by those upon whom the law devolved that duty. It is not claimed that it was not fairly made, nor is it denied that it was in accordance with the rule which had prevailed down to that time, and which prevailed subsequently until the Supreme Court passed upon the subject, in the case of The State v. Lean, 9 Wis., 279, which was decided in the year 1859.

This action is conclusive as to the Executive Department of the Government prior to that period, and it is entitled to the greater weight from the fact the highest law officer of the State participated in the decision.

The subject came incidentally under the consideration of the Supreme Court of the State, in Hewitt v. Town of Grand Chute, 7 Wis., 282. The question in that case was, whether a statute, in all respects identical with the one under which these securities were issued, as regards the questions before us, was pleaded as a private act should be. The question whether it was a private Act was not made in the case. That was impliedly conceded by the counsel on both sides. The courts say:

or contracts in writing which derive their validity from such private statute. By the common law it is necessary to set out such statute in the declaration, otherwise the court would not take notice of its provisions; unlike in this respect, a public statute, of which the court was bound to take judicial notice, though the latter were not pleaded. But section 69 of the Code of Procedure provides as follows: "In pleading a private statute or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall there

upon take judicial notice thereof." In this case the plaintiff, in his complaint, did refer to the statute from which his right was derived, by reference to its title and the day of its passage, and he thus brought the whole statute within the judicial knowledge of the court, &c."

Here was a clear judicial recognition by the highest court of the State, in accordance with the previous determination of the Executive Department.

To the third question, for the reasons stated, no answer will be given. An order will be remitted to the district court in conformity with this opinion.

Cited-3 Wall., 257; 4 Wall., 275; 16 Wall., 690; 105 U. S., 295; 2 Woods., 470, 642; 7 Kan., 506; 4 Am. Rep., 117 (44 Ala., 48); 25 Wis., 163; 28 Wis., 69; 54 Mo., 75.

THE

Piff. in Er.,

V.

NATIONAL MINING COMPAY AND JAMES M. COOPER.

The subsequent adjudications in The State v. Lean, 9 Wis., 279, decided in 1859, and the cases which followed it, hold that such statutes are "of a general nature," and have no validity until published. But being long posterior to the time when the securities were issued, they

can have no effect upon our decision, and may be laid out of view. The bonds bear date on the 26th of July, 1853. We can look only to the condition of things which subsisted when they were sold. That brings them within the rule laid down by this court, in Gelpcke v. The City of Dubuque,1 Wall., 175 [68 U. S., XVII., 520]. In that case it was held, that if the 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 Legis lature or Judiciary can impair its obligation. This rule was established upon the most careful consideration. We think it rests upon a solid foundation, and we feel no disposition to depart from it.

Whether the statute here under consideration is intrinsically generai or local in its character, is a question which we have not found it necessary to consider.

The third question presents merely an abstract proposition. No facts are disclosed in the record which show that it has arisen or can hereafter arise in the case. Under such circum stances it is the settled practice of this court to decline to answer. It is necessary that the question should involve a distinct legal point, and that sufficient facts should be set forth to show its bearing upon the rights of the parties. Crockett v. The Isaac Newton, 18 How., 581; [59 U. S., XV., 492]; U. S. v. Bank_of_Columbus, 19 How., 385 [60 U. S., XV., 662]. In this case all the facts relied upon as operating to ratify should have been set forth. Any point of disagreement between the judges relating to the subject would then have appeared in its proper light and could have been definitely answered. As the question is presented the answer, if given, would be equally general, and, like the question, a mere abstraction, whichc ould subserve no useful purpose in the further progress of the

cause.

The answer to the first and second questions certified up will be that, under the circumstances, the statute referred to must be held in this case to be a local act, and not a general law.

(See S. C., 3 Wall., 332-334.)

Decision of state court in conformity to opinion of this court not reconsidered.

The decision of the Supreme Court of a State, in conformity with the opinion of this court twice pronounced on the same title, will not be opened or reconsidered. [No. 73.]

Argued Dec. 13, 1865.

Decided Jan. 2, 1866.

This is a writ of error under the 25th section of the Act of 1789.

The action was ejectment, originally brought in the District Court for the County or Ontonagon, in Michigan, in which the lands lie.

The record does not distinctly show the value of the lands in controversy. There is a stipulation on file that it exceeds $2,000, exclusive of costs.

They lie on the mineral range of Lake Superior include about one hundred and sixty acres, and are worth more than $200,000.

The controversy is between the Minnesota Mining Company, claiming under a patent of the United States, founded on a mineral lease to their assignor on the one hand, and the National Mining Company, claiming under a a sale by the State of Michigan to their grantor, of these lands as a part of a school section.

E. C. Roberts, as a tenant of the Minnesota Mining Company, being in possession of the lands, James M. Cooper brought an action of ejectment against Roberts in the Circuit Court of the United States for the District of Michigan.

This case is reported in 6 McLean, 93. Judge McLean held that the fact that the premises are mineral lands, removed them from the operation of the grant of them to the State as school lands.

The Supreme Court of the United States re versed this decision.

See 18 How., 173 (59 U. S., XV., 338). Thereafter the case was again tried in the circuit court, and Cooper recovered a verdict. Roberts then brought error, and the case was decided adversely to him.

See 20 How., 467 (61 U. S., XV., 969). Neither the Minnesota Mining Company nor the National Mining Company were parties to this suit.

Roberts having been ejected and Cooper put in possession of the premises, the Minnesota Company brought its action of ejectment against Cooper, and the National Mining Company, for whom he held them in trust.

This action was tried in Ontonagon County before Judge Goodwin, without a jury. He found the facts and the law specially.

The case was taken by a writ of error to the Supreme Court of Michigan.

That court affirmed the judgment of the district court.

The case is reported in 11 Mich., 186.

This decision declares that the Act of Congress of March 1st, 1847, does not extend to this case.

Mr. Theodore Romeyn, for plaintiff in

error.

Mr. Alexander W. Buel, for defendants in error.

Mr. Justice Grier delivered the opinion of the court:

The parties in this case, though nominally different, are, in fact, the same who litigated the case of Cooper v. Roberts, 18 How., 173 [59 U. S., XV., 338]. The same title is again brought in question, and the same questions again agitated.

In that case, as in this, the question submitted to the court was, whether a lease, made by the Secretary of War, of mineral lands including section sixteen (appropriated by law to the State of Michigan, and commonly called the "school section") conferred a right upon the Mining Company to enter their land and obtain a pat ent for the whole or any part of that section. The question was elaborately discussed by counsel and deliberately considered by the court, and a unanimous decision was given in favor of the party claiming under the State of Michigan. Nevertheless, the losing party, unwilling to acquiesce in a single decision, brought the case again before the court by a second writ of error. It is reported in 20 How.,480 (61 U. S., XV., 969). The counsel on that occasion labored with

great zeal and ability, to convince the court

that their first decision was erroneous; but were unsuccessful.

This is another, and it is to be hoped the last, attempt to persuade this court to reverse their decision in this case.

Where questions arise which affect titles to land it is of great importance to the public that when they are once decided they should no longer be considered doubtful. Such decisions become rules of property, and many titles may be injuriously affected by their change. Legisla tures may alter or change their laws, without injury, as they affect the future only, but where courts vacillate and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change. Parties should not be encouraged to speculate on a change of the law when the administrators of it are changed. Courts ought not to be compelled to bear the infliction of repeated arguments by obstinate litigants, challenging the justice of their well considered and solemn judgments.

The decision of the Supreme Court of Michigan, in conformity with the opinion of this court, twice pronounced on the same title, is hereupon affirmed, with costs.

THE MILWAUKEE AND CHICAGO RAILROAD COMPANY.

(See S. C., 3 Wall., 196-210.)

Mortgage sale under decree of Federal Courtbids at auction-judicial sale is under control of court-instructions from complainant's solicitor-power of officer conducting sale—adjourn ment of sale by.

*1. Sales of mortgaged premises, under a decree of foreclosure and sale, are usually made in the Federal Courts by the Marshal of the district where the decree was entered, or by a master appointed by the court as directed in the decree.

2. Contracts for the purchase and sale of goods or lands at public auction, are contracts founded upon mutual promises, and consequently they cannot be regarded as perfected and binding, unless they have received the consent of the parties.

3. Biddings at an auction are mere offers which is down, or until the bid has, in some way, been acmay be retracted at any time before the hammer cepted by the seller.

4. Auction sales under a decretal order are always regarded as under the control of the court, and subject to the power of the court to set the sale aside or open it, if the circumstances of the case require it, before it has been confirmed. 5. Such sales are usually conducted under the advice of the solicitor of the complainants; but his instructions, if oppressive to the respondent or unreasonable, cannot control the officer, because the officer has duties to perform to the respondent as well as to the complainant, and to the court as well as to the parties.

6. Every such officer possesses the power, for good cause shown, to adjourn the sale; and if the interests of the parties require it, he is bound to exercise a sound discretion upon the subject.

7. Reasons for the adjournment in this case are satisfactory, as it was granted at the request of the parties to the suit, to enable the respondents to negotiate an arrangement to pay the mortgage debt. [No. 72.] Argued Dec. 11, 1865. Decided Jan. 2, 1866.

APPEAL from the District Court of the Unit

States for the District of Wisconsin. A suit was commenced on the equity side of the District Court of the United States for the District of Wisconsin, by E. Ferris Bishop and others against the Milwaukee and Chicago Railroad Company, to foreclose a certain mortgage set forth in the record. The cause proceeded to final decree of foreclosure and sale, December 5, 1861.

The Marshal advertised the sale for the 6th

of June, 1862, and on that day offered the premises to the highest bidder, in pursuance of the decree; no bids being received the sale was adjourned to June 19, 1862. On this day various bids were made, Blossom, the appellant,

*Head notes by Justice Clifford, who delivered the opinion.

NOTE.-Bids at auction sale, when binding.

Every bidding is nothing more than an offer on one side which is not binding on either side until it is assented to, and that assent is signified on the part of the seller by knocking down the hammer, and before that the bid may be retracted. Payne v. Cave, 3 T. R., 148; 2 Kent, Com., 537; Warlow v. Harrison, 1 El. & El., 295.

Bid may be retracted by implication. If auctionsent of bidder, this is equivalent to rejection of the bid. Donaldson v. Kerr, 6 Pa. St., 486; Jones v. Nanney, 13 Price, 103.

eer passes to another article, without express as

The authority of an auctioneer is confined to making the sale, and he cannot rescind it even be

fore the payment of the purchase money. Boinest v. Leignez, 2 Rich., 464.