4, 1884, which renders highly penal the prose- | ants, by their counsel, then and there excepted. cution by defendants of their said business. 7. That under provisions of said Act defendants can be deprived of their property and punished with heavy penalties for being engaged in said business, without the right of a jury trial. 8. That the Supreme Court of Iowa has adjudged said At valid and in full force. 9. That under said Act and said decision plaintiff is prosecuting this action. 10. That under said law, and especially under section 1526 of said Code as amended, defendants are denied the right to manufacture or sell beer for any purpose whatever, on account of their occupation. And thereupon the defendants in open court filed their petition for appeal to the Supreme Court of the United States from said decrce, and present for approval their supersedeas bond. The court, after argument by counsel for the respective parties, being fully advised, allows said appeal to the supreme court and approves said supersedeas bond, which is done accordingly. Upon the cause being docketed in this court the appellee moved to dismiss said appeal for the reason that the circuit court had no jurisdiction of the cause; and to affirm the order, judgment and decree of said circuit court, for the reason that the record fails to show that any federal question is involved in said cause; and further, that it is manifest from the record that said appeal was taken for delay only, even in case it be held that this court has jurisdiction, as will appear from the brief statement herewith sub 11. That said law and said decision are in derogation of defendants' rights as guaranteed by the Constitution of the United States, and especially by the Fourteenth Amendment thereof, as they are thereby denied the equal protec-mitted. tion of the law, and are deprived of liberty and property without due process of law. 13. That by said decision they are denied the equal protection of the laws of Iowa. 14. That said laws are null and void, as contrary to said Amendment, but the Supreme Court of Iowa has refused so to declare. Messrs. Fouke & Lyon and McCeney & O'Donnell, for appellants: The only keeping of a saloon, of which the complainant complains, is the selling within the limits and upon the brewery premises, of the beer manufactured in the brewery erected long prior to the passage of the present law, and that the right to manufacture includes a right to dispose of the product of such manufacture; for the petition for removal states that the sale of the beer manufactured upon said premises is the keeping of a saloon alleged in the bill of com The plaintiff thereupon moved to remand said cause to the District Court of the State of Iowa. 1. Because the petition for removal fails to state facts showing that defendants were entitled to remove said action from the state court under the provisions of section 641 of the Re-plaint, and not other or different. vised Statutes of the United States. 2. Because said petition fails to state facts sufficient to give the court jurisdiction of said action. 3. Because said petition fails to state facts showing that defendants are denied or cannot enforce in the judicial tribunals of the State of Iowa any rights secured to them by any law providing for the equal, civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, within the provisions and purview of section 641 of the Revised Statutes of the United States 4. Because said action was improperly removed from said state court, as it involves no dispute or controversy within the jurisdiction of this court. The difference between the facts in the Kansas case and this is simply that the Kansas man was refused a permit after application, while under the Iowa law he is in effect prevented from making application. He belongs to a class of persons to whom permits are absolutely denied. State v. Walruff, 26 Fed. Rep. 178; Bartemeyer's Case, 18 Wall. 129 (85 U. 8. bk. 21, L. ed. 929); Munn v. Illinois, 94 U. S. 141 (24: 89); State v. Mugler, 29 Kan. 252; Lake View v. Rose Hill Cem. Co. 70 Ill. 192; Sinnickson v. Johnson, 17 N. J. L. 129; Gardner v. Newburgh, 2 Johns. Ch. 162; Davidson v N. O. 96 U. S. 104 (24: 619); Murray v. Hoboken L. & I. Co. 18 How. 276 (15:374). The proposition ought not to be successfully The following order was thereupon entered: challenged that the Fourteenth Amendment has "This day this cause coming on to be heard, extended federal jurisdiction, without limitaupon the motion of complainant to remand the tion, over all classes of legislation by the State same to the state court, the complainant having in which any attempt is made to take from a by leave of court heretofore made, filed his citizen his life, liberty, or property without due amendment to his bill of complaint and the de- process of law, or which denies to any person fendant, by leave of court heretofore given, hav- within its jurisdiction the equal protection of ing filed his amended petition for removal of said the law; and even the police power, when it atcause into this court, and the court, having read tempts to deprive particular persons and classes as well the amended pleadings of plaintiff, and of privileges enjoyed by other inhabitants, and the amended petition for removal, of defendant, inflicts burdens upon them which the public at and having considered the same, and having large does not have to bear, it becomes obnoxheard the said parties by their respective coun-ious to the amendments of the Federal Constisel, and being fully advised, grants said motion tution. to remand made by said plaintiff, upon the Matter of Jacobs, 98 N. Y. 98; People v. Otis, ground that there is no federal question in- 90 N. Y. 48; Wynehamer v. People, 13 N. Y. volved in said cause. It is therefore ordered, ad-401; County of Santa Clara v. Southern Pac. judged and decreed that said cause be re- R. Co. 18 Fed. Rep. 385; Kessinger v. Heickmanded to the District Court in and for Du- house, 27 Fed. Rep. 883; Mahin v. Pfeiffer, Id. buque County, Iowa, from which it came, and 892. that the plaintiff recover his costs in this court against defendants; to all of which the defend In the decision of nearly all of the questions arising under this Fourteenth Amendment, the court itself has almost always been divided. Commencing with the Slaughter House Cases (Bk. 21, L. ed. 394), the opinion was delivered by five of the judges, the other four dissenting; and but one concurring judge is left upon the bench. In Tennessee v. Davis, Strauder v. West Va., Virginia v. Rives, Ex parte Virginia, all reported in 100 U. S. (Bk. 25, L. ed. 648 et seq.), there has not been unanimity in the opinions pronounced. It cannot therefore be claimed that there is a fixed and unerring rule of decision upon the construction of this Amendment. A federal question does not depend upon the validity of the claim set up under the Constitution or laws. It is enough if the claim involves a real and substantial dispute or controversy in the suit. Cohens v. Va. 6 Wheat. 264 (19 U.S. bk. 5, L. ed. 257); Tennessee v. Davis, 100 U. S. 264 (25: 650); Ames v. Kansas, 111 U. S. 462 (28: 487); Starin v. New York, 115 U. S. 257 (29: 390); Southern Pac. R. R. Co. v. Cal. 118 U. S. (ante, 103); Yick Wo v. Hopkins, Id. 220. Were these cases properly removable under section 641, Rev. Stat.? The facts of the petition must be taken as true, and they show that these petitioners, by the enactments complained of, are denied certain rights as citizens and inhabitants of the United States, residing in Iowa, that they can only maintain in a court of justice. Yick Wo v. Hopkins and Tennessee v. Davis, supra; Strauder v. West Va. 100 U. S. 310 (25: 666). Messrs. S. P. Adams, Jed Lake and M. H. Beach, for appellee: Messrs. Fouke & Lyon and McCeney & Messrs. S. P. Adams, Jed Lake and The judgment below in this case was also af- TOWN OF OREGON, Plff. in Err., ELIZA JENNINGS. (See S. C. Reporter's ed. 74-95.) Municipal bonds-Illinois Statute-fraud and 1. Under the Illinois Statute providing that fraud 2. Under the Statute of Illinois relating to the ap- petent for the town clerk and one justice to fill a 3. If the supervisor and town clerk, they being porate authorities" to act for the town in issuing All that is sought to be done in this proceed-issued as the officers to sign the bonds and the "coring is to compel defendants to close up their saloon, and cease to maintain the nuisance complained of. No punishment or penalty is sought to be inflicted, no property is taken, no liberty is restrained, except the liberty to maintain a nuisance, and that restraint is sought to be accomplished according to the forms of long established judicial proceedings. The only question properly raised by this record is whether the State has the right, under the Constitution of the United States, to prohibit the sale of intoxicating liquors at retail as a beverage. This has been affirmatively decided by this court. Bartemeyer v. Iowa, 18 Wall. 129 (85 U. S. for the election of town officers was an election with- Submitted Oct. 19, 1886. Decided Nov. 15, 1886. bk. 21, L. ed. 929); Beer Co. v. Mass. 97 U. SN ERROR to the Circuit Court of the United 25 (24: 989); Foster v. Kansas, 112 U. S. 205 (28: 630). Mr. Chief Justice Waite announced that the judgment below was affirmed by a divided court. States for the Northern District of Illinois. The case is stated by the court. Amended second plea averred facts which =96] ARTHUR O'MALLEY, Appt., D. J. P. FARLEY. Ill., in force in 1870. The plea shows that the (See S. C. Reporter's ed. 296.) railroad company (knowing that it was not en- Submitted with preceding case and at same time. visor of the Town on their director Potter, in order to procure him to sign the bonds in be APPEAL from the Circuit Court for the half of the Town; and that the pretended ap Northern District of Iowa. pointment of Potter as supervisor and the exeThis case involves the same question pre- cution of the bonds by him took place at the sented upon the appeal in Schmidt v. Cobb, ante. I same time, and as parts of the same transaction [74] It appears that aside from the question of fraud, Potter's appointment as supervisor was invalid. The statute then in force provided that, in case of a vacancy in any town office, "It shall be lawful for the justice of the peace" of the town, together with the supervisor and the town clerk, "to fill the vacancy by appointment under their hands and seals." William Schultz was one of the justices of the peace of the Town. He had tendered his resignation, but his successor had not been elected and qualified. Under the Constitution and laws of Illinois, a justice of the peace continues in office until his successor is elected and qualified, notwithstanding an attempted resignation. People v. Barnett, 100 Ill. 332; Badger v. U. S. ex rel. Bolles, 93 U. S. 599 (Bk. 23, L. ed. 991); Const. of 1848, art. IV, § 27; Const. of 1870, art. VI, § 32. Schultz was therefore still in office, and one of the officers whom the people of the Town had the right to have consulted in respect to the filling of any supposed vacancy in the office of supervisor. no power or authority to issue the bonds unless it could be done in compliance with the vote. He was bound to take notice of the terms of the vote which appeard of record. Daviess Co. v. Dickinson, supra; Buchanan v. Litchfield, 102 U. S. 289 (Bk. 26, L. ed. 139); Dixon Co. v. Field, supra. It was held by the Supreme Court of Illinois at its September Term, 1870, and before the bonds in question were issued, that a railroad corporation was not entitled to bonds of a town voted on conditions, without compliance with the vote. People v. Dutcher, 56 Ill. 149. This ruling has been constantly adhered to. People v. Glann, 70 Ill. 232; People v. Holden, 91 Ill. 446; Middleport v. Etna Life Ins. Co. 82 Ill. 562; People v Jackson, 92 Ill. 451; Town of Prairie v. Lloyd, 97 Ill. 191; Wade v. LaMoille, 112 Ill. 79. The supervisor and town clerk had no implied authority to waive compliance with the conditions prescribed by the vote of the people. Rev. Stat. Ill. chap. 113, 17; Town of Eagle Crocker v. Crane, 21 Wend. 211, 218; Babv. Kohn, 84 Ill. 292. cock v. Lamb and Doty, 1 Cow. 238; Louk v. As to questions arising under the fourth plea Woods, 15 Ill. 262; Ex parte Rogers, 7 Cow. I the only vote taken was at a special town meet526 and note; Williams v. School Dist. 21 Pick.ing, presided over by a moderator, and not at 82; McCoy v. Curtice, 9 Wend. 17. The third plea shows that the bonds and coupons in question were issued in violation of section 12, article IX of the State Constitution adopted in 1870, which prohibits municipal corporations from creating indebtedness to exceed 5 per cent on the assessed value of the taxable property therein. It is shown that when the bonds were issued the Town was already indebted in excess of the constitutional limitations, and that the bonds were not issued "in compliance with any vote of the people" of the Town, had prior to the adoption of the Constitution, within the purview of the saving clause of that section. The adoption of the State Constitution containing this section de prives the Town of all power to create any further indebtedness in excess of the constitutional limit, except so far as such power was reserved by the last paragraph of the section. Buchanan v. Litchfield, 102 U. S. 278 (Bk. 26, L. ed. 138); School Dist. v. Stone, 106 U. S. 183 (Bk. 27, L. ed. 90); Litchfield v. Ballou, 114 U. S. 190 (Bk. 29, L. ed. 132); Prince v. City of Quincy, 105 Ill. 138, 215. By the express terms of the vote the bonds were not to be issued, dated, or delivered, and "said vote and donation of $40,000 to be null and void unless said first division of said railroad shall be completed and equipped as aforesaid on or before the first day of January, A. D. 1871." It appears that the railroad company wholly failed to comply with the terms of the vote. The question as to whether power exists in a municipality to issue bonds and create indebtedness, may depend on extrinsic facts, not appearing on the face of the law. Northern Bank v. Porter Tp. 110 U. S. 608 (Bk. 28, L. ed. 258); Dixon Co. v. Field, 111 U. S. 96 (Bk. 28, L. ed. 365); Merchants Bank v. Bergen Co. 115 U. S. 390 (Bk. 29, L. ed. 431); Daviess Co. v. Dickinson, 117 U. S. 657 (Bk. 29, L. ed. 1026). The purchaser was bound to know from the terms of the Constitution itself that there was an election presided over by the three judges of election. The established construction of the statutes bearing on the question, in the state court is, that a vote taken at such town meeting is not a vote taken at an election within the meaning of such statutes; and consequently where the statute requires the vote to be taken at an election such vote taken at a town meeting is not a vote "under existing laws quired by the saving clause to said section. Chicago & 1. R. Co. v. Mallory, 101 Ill. 583; Lippincott v. Pana, 92 Ill. 24. as re The Town is not estopped by the recitals contained in the bonds from making the de fenses now interposed. The recitals do not purport to show compliance with the vote of the people nor with the constitutional requirement in any respect, and cannot be so enlarged by construction as to embrace the same. Buchanan v. Litchfield, 102 U. S. 292 (Bk. 26, L. ed. 141); School Dist. v. Stone and Northern Bank v. Porter Township, supra; Dixon Co. v. Field, 111 U. S. 83 (Bk. 28, L. ed. 360); Bates v. Ind. School Dist. 25 Fed. Rep. 192; Liebman v. San Francisco, 24 Fed. Rep. 711. The supervisor and town clerk issuing the bonds were not authorized to decide, conclusively, the question as to whether these constitutional requirements had been complied with. The vote under which it is claimed the bonds were issued was taken June 23, 1870. If that vote was properly taken at a town meeting, then the moderator who presided at that meeting canvassed the vote and decided all questions pertaining thereto, and the clerk made a record thereof in the town records. If the vote should have been taken at an election, then the election returns, made by the judges thereof, constitute the records of such election. In no contingency was the supervisor or town clerk in office April 3, 1871 (when it is conceded the bonds in question were signed), authorized by law to make any decision as to the result or validity of an election held prior to July 2, 1870. 1 Gross, Stat. of Ill. ed. of 1869, p. 748, SS 1422, Id. p. 247, §§ 28-32; Northern Bank v. Porter Township, 110 U. S. 616 (Bk. 28, L. ed. 261); Dixon Co. v. Field, 111 U. S. 94 (Bk. 28, L. ed. 364); Daviess Co. v. Dickinson, 117 U. S. 657 (Bk. 29, L. ed. 1026). Mr. S. W. Packard, for defendant in error. Mr. Justice Blatchford delivered the opinion of the court: This is an action at law brought in the Cir[75] cuit Court of the United States for the Northern District of Illinois, by Eliza Jennings, against the Town of Oregon, a municipal corporation in the County of Ogle and State of Illinois, to recover $13,510, the amount payable by 193 coupons of $70 each, cut from 24 bonds for $1,000 each, purporting to have been issued by that Town. The following is a copy of one of the bonds, all being alike except as to the number and the time when due. Know all men by these presents, That the Town of Oregon, in the County of Ogle and State of Illinois, is indebted to the Ogle and Carroll County Railroad Company in the full and just sum of one thousand dollars, which sum of money said Town agrees and promises to pay on or before the first day of July, 1883, to the said Ogle and Carroll County Railroad Company, or bearer, with interest at the rate of seven per cent per annum, payable annually, on the first day of July, at the office of the Farmers' Loan and Trust Company of New York, in the City of New York, upon the delivery of the coupons severally hereto annexed, for which payment of principal and interest, [76] well and truly to be made, the faith, credit and property of said Town of Oregon are hereby solemnly pledged, under authority of an Act of the General Assembly of the State of Illinois, entitled 'An Act to Amend an Act Entitled An Act to Incorporate the Ogle and Carroll County Railroad Company," which said Act was approved March 30, 1869. This bond is one of a series, numbering from 21 to 60, inclusive, for $1,000 each, which bonds, so numbered, together with another series numbered from 1 to 20, inclusive, for $500 each, are the only bonds issued by said Town of Oregon, under and by virtue of said Act. In witness whereof, the supervisor and town clerk of the said Town of Oregon have hereunto set their hands, this thirty-first day of December, A. D. 1870. FRED. H. MARSH, Town Clerk. E. S. POTTER, Supervisor." The date in each bond. "thirty-first day of December, A. D., 1870," is lithographed, like the body of the bond. On the back of each bond is the following certificate: "AUDITOR'S OFFICE, Illinois. SPRINGFIELD, June 5, 1871. I, Charles E. Lippincott, Auditor of Public Accounts of the State of Illinois, do hereby certify that the within bond has been registered 119 U. S. U. S. Book 30. in this office this day, pursuant to the provis- In testimony whereof, I have hereunto sub- The coupons are in the following form, vary- "State of Illinois, County of Ogle. The Town of Oregon will pay to the Ogle and Carroll County Railroad Company, or_bearer, Seventy Dollars at the office of the Farmers' Loan & Trust Company of New York, in the City of New York, on the first day of July, 1873, on presentation, being one year's interest on bond No. 29. F. H. MARSH, Clerk. E. S. POTTER, Supervisor." The action was tried by a jury, which, under the instruction of the court to do so, found verdict for the plaintiff, for $20,823.68, and a judgment in her favor was rendered for that amount, with costs. The defendant has sued out a writ of error. On the 30th of March, 1869, the Legislature of Illinois passed an Act (Private L. Ill. 1869, Vol. 3, p. 324), with the title set forth in the bonds, and providing as follows: "Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the several Acts entitled 'An Act to Incorporate the Ogle and Carroll Coun ty Railroad Company,' approved February 18, 1857, and the Act entitled An Act to Amend an Act Entitled an Act to Incorporate the Ogle and Carroll County Railroad Company,' approved February 24, 1859, be and they are hereby so amended that the said railroad company shall be authorized and empowered to construct, maintain and operate their said railroad, with such appendages as may be deemed necessary by the directors, in accordance with the following provisions. Sec. 2. That the first division of said road shall commence on the east bank of Rock River, opposite the Town of Oregon, in said County of Ogle; from thence, on the most eligible route, to a connection with the Chicago and Northwestern Railway, or with any other railroad leading to the City of Chicago; and the second division commencing at said point, opposite the said Town of Oregon and running thence, in a westerly direction, on the most eligible route, to the Mississippi River." Sec. 5. That the several towns, villages and cities, organized or incorporated under any laws of this State, along or near the route of said railroad, as authorized to be constructed under the original Act and amendment thereto or under this Act, or that are in anywise interdivision thereof constructed, may, in their corested in having said road or any branch or porate capacities, subscribe to the stock of said company, or may make donations thereto, or may lend its or their credit to said company, to aid in constructing and equipping said road, or any division or branch thereof; Provided, That no such subscription, donation, or loan shall be [78] [79] made until the same shall be voted for as here- legal voters of the Town presented to the clerk Sec. 6. That whenever twenty legal voters of "To the Town Clerk of the Town of Oregon, in The Town of Oregon was and is an incorporated town or township situated on both sides east and west of Rock River, and embracing within its limits a village called Oregon, on the west bank of the river, which village was and is what is called "the Town of Oregon" in the second section of the above Act. The town was such a town as is described in the fifth section of the Act. Dated this 24th day of May, A. D. 1870.” The clerk received and filed the application and gave the notice required by section 6 of the Act, of an election to be held June 23, 1870, the notice being as follows: "Election Notice. "Whereas, more than twenty legal voters of the Town of Oregon, in the County of Ogle, and State of Illinois, have presented to me, clerk of said Town, a written application re questing that an election be held in said Town under the provisions of an Act of the General On the 24th of May, 1870, more than twenty | Assembly of the State of Illinois, entitled 'An [80 [S |