Syllabus. could extend, in any event, to statements concerning Hallam published two weeks after he ceased to be a candidate and made to a public not one person of whom was a voter or citizen of the congressional district in which Hallam had offered himself as a candidate. Having examined the record and the assignment of errors with much care, we find no error prejudicial to the defendant below, and, therefore, affirm the judgment of the Circuit Court, with costs. Affirmed, with costs. ASHLEY v. BOARD OF SUPERVISORS OF THE COUNTY OF PRESQUE ISLE (1). ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. No. 116. Argued June 21, 1893. Decided December 9, 1893. The decision of the Supreme Court of Michigan in the case of Pack v. Supervisors of Presque Isle County, 36 Michigan, 377, is not a conclusive adjudication that the county of Presque Isle, Michigan, had no lawful existence in 1871, and does not conclude the question of the lawful authority of Presque Isle County to issue the bonds which were issued by the county on November 1, 1871, to raise money for building a courthouse and a jail, and the case is examined, limited and distinguished. The act of the legislature of Michigan of March 31, 1871, providing for the organization of the county of Presque Isle, Michigan, was provisional only, was in substance an enabling act, and did not ipso facto organize the county. In this case, in passing upon the proposition that the said act of March 31, 1871, was unconstitutional and void because there was at the time of the passage of the act but a single organized township within the limits of the county, namely, the township of Rogers, and that therefore there could not be constituted a board of supervisors, which was a prime necessity for the exercise of county functions, and also because the act left some of the inhabitants of the county without an opportunity of voting upon questions affecting their interest, it was held that, inasmuch as in this case it had not been shown in the court below whether the Syllabus. organization of the county took place before or after the organization of the township of Presque Isle, the presumption, in the absence of evidence to the contrary, was that the facts necessary to the legal organization of the county existed, and that therefore there were in the county two organized townships at the time when the act was passed, and that there were no obstacles arising from any cause. When a municipal body has assumed, under color of authority, and has exercised for any considerable period of time, with the consent of the State, the powers of a public corporation of the kind recognized by the organic law, neither the corporation nor any private party can, in private litigation, question the legality of its existence. An unconstitutional and void law may yet be color of authority to support, as against anybody but the State, a public or private corporation de facto, where such corporation is of a kind which is recognized by, and its existence is consistent with, the paramount law, and the general system of law, in the State. Applying the foregoing principles, it is in this case held (1) that the validity of the original organization of Presque Isle County, Michigan, cannot be by itself assailed collaterally in this suit; (2) that upon the facts presented by the record the bonds issued by the county on November 1, 1871, were valid; (3) that under the circumstances of this case the bonds issued by the county on March 26, 1885, under the act of the legislature of Michigan of February 16, 1885, and which were issued for the purpose of retiring outstanding bonds, the only outstanding bonds of the county at that time being those issued on November 1, 1871, are binding obligations upon the county; and (4) that the purchasers of the refunding bonds were not required to scrutinize the successive issues in which the debt had been refunded, and so look into the question of the validity of the old bonds. A general power to issue bonds must be taken to authorize bonds in the usual form of such well-known commercial obligations, which usual form embodies a contract and obligation negotiable by its terms. The act of the legislature of Michigan of February 16, 1885, is not unconstitutional on the ground that it attempts to confer special powers on the board of supervisors of a single county, or because it authorizes the board of supervisors to borrow more than $1000 in a year for constructing public buildings without the vote of the people, (a) because there is nothing in the constitution of the State of Michigan which clearly, or by any necessary implication, limits the power of the legislature in the manner supposed, and (b) because the bonds were issued to refund a debt, and not to raise money to erect public buildings. As affecting the jurisdiction of the Circuit Court the question of the bona fides of the transfer of bonds where no issue on the subject was framed in the court below, the question being one which arises for the action of the court under section 5 of the judiciary act of March 3, 1875, 18 Stat. 470, 472, c. 137, which requires the court of its own motion to dismiss an action if it shall appear at any time that it has VOL. XVI-42 Statement of the Case. been collusively brought, is, it would seem, in a case of fair doubt, a question for the Circuit Court to determine, although a Circuit Court of Appeals could and would deal with it if the fault clearly appeared. In this case, however, as no such issue arose on the pleadings in the court below, and as it appeared on the face of the record that the court had jurisdiction, this court in sending the case back for a new trial directed the Circuit Court to permit, in its discretion, an amendment of the defendant's plea by appending to it a plea in abatement, in accordance with the rules of practice of the Circuit Courts of the State of Michigan, of the matter touching the jurisdiction, whereon a separate verdict could be taken, or, if it should be deemed best, to leave the question for its own disposition under said act of 1875.1 The People v. Maynard, 15 Michigan, 463, Norton v. Shelby County, 118 Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge. In this case the plaintiff sued to recover upon bonds Nos. 5 and 6 and several interest coupons belonging to those and other numbered bonds in the same series, being part of an issue of eighteen bonds for the sum of $1000 each, with coupons for interest in the usual form, made by the county of Presque Isle on the 26th day of March, 1885. The bonds were payable to bearer and carried interest at the rate of seven per cent, payable annually according to the terms of the coupons. In addition to special counts, the declaration contained the common counts, and there were appended copies of the obligations sued upon, together with a notice that they would be given in evidence under the money counts. This was in accordance with the practice in the courts of the State. The defendant pleaded the general issue. The case went to trial before a jury, and, under an instruction by the court at the conclusion of the evidence that the supposed obligations were void, as matter of law, a verdict was returned for the defendant and judgment was entered accordingly. 1 In this case a petition for a rehearing was denied on February 5, 1894, with an opinion which is reported post, p. 709. Statement of the Case. The facts necessary to a proper understanding of the case may be stated as follows: Prior to March 31, 1871, the county of Presque Isle was one of the unorganized counties of Michigan, and was attached to the organized county of Alpena for judicial and municipal purposes. On that day an act was passed by the legislature of the State providing for its organization with the same territory which it had previously embraced and with the powers and privileges common to the other counties of the State. Provision was made for the election of the usual county officers, fixing the county seat, for a seal and proper record books, and for the holding of courts. The date fixed for the election of officers, which was the first step in organization, was the first Monday in April following, but it was further provided by section 5 of the act that, in the event that the election should not be held at the date named, it might be held at any time thereafter upon giving the prescribed notice. Act of March 31, 1871, Laws of 1871, p. 128, No. 398. At the date of this act there was but one township in the county, namely, the township of Rogers. On the 29th day of July, 1871, the board of supervisors of the county of Alpena, under the authority conferred by general statutes, organized another township in Presque Isle County, by the name of Presque Isle. At some time prior to September 16, 1871, but on what date does not appear from anything in the record, the election contemplated by the above-mentioned act took place, and it is shown that on the said 16th day of September there were two township supervisors, one for each of the townships of Rogers and Presque Isle, who assumed to act as such in their respective townships. Upon the organization of the county under the act of March 31, 1871, it assumed the functions of an organized county under the constitution and laws of the State, and continued to exercise them. It was recognized as such by various officials of the State and dealt with as such in departmental business, and on March 28, 1873, the legislature passed an act to organize three counties and to add certain territory to three other counties, among them Presque Isle County. Laws of 1873, p. 85, No. 338. The language of section 4 of that act was this: "That township Statement of the Case. number 37, north of range number 2, east, is hereby attached to the organized county of Presque Isle." In the progress of events questions arose as to the validity of the act of 1871 under which the organization of the county had taken place, in view probably of the ruling of the Supreme Court of the State, in The People v. Maynard, 15 Michigan, 463, that there could be no valid organization of a county having but one organized township within its limits, and so no sufficient material for making up a board of supervisors to execute the functions of a county, and on the 9th day of April, 1875, an act was passed by the legislature entitled "An act to organize the county of Presque Isle, and the townships of Presque Isle, Posen, Belknap, Rogers and Moltke" in that county. Laws of 1875, p. 118, No. 80. This act, in accordance with the scope of its title, purported to organize the territory of the then county of Presque Isle into a county of that name, and to subdivide the whole thereof into the organized townships above named, and provided a detail of proceedings for organization of county and townships. Such proceedings were had, and the county, in form at least, was newly organized. Recurring to the original organization of Presque Isle County in 1871, the record shows that, having no courthouse or county jail, the then board of supervisors, consisting of the supervisors from the townships of Rogers and Presque Isle, the county clerk, the proper officer for that purpose, attending, passed a resolution declaring that it was necessary to raise $9000 for building a courthouse and $6000 for building a jail, and providing for the submission to the electors of the county of the question whether these sums should be raised by loan for those purposes. On the 21st of September the clerk issued the notice for an election on the 23d day of October following, and on the last-mentioned day the electors voted in their several townships last named on the question submitted. On the succeeding day the votes were canvassed by the proper officers, and it was found and declared by the proper canvassing board that a majority had voted in the affirmative. Shortly thereafter the board of supervisors again convened and resolved to issue thirty ten per cent bonds of $500 each |