Vol. IV.]

TOWN OF OTTAWA V. PErkins.

[No. 5.

In 1864, in the case of The People ex rel. Barnes v. Starne, 35 Ill. 121, an application was made for a mandamus to compel the treasurer of the state to countersign, register, and pay a warrant issued upon him in favor of Barnes, the relator, by the auditor of public accounts. The warrant was issued upon the authority of what was supposed to be a statute of Illinois, approved February 14, 1863, as compensation for transporting and bringing home certain wounded soldiers belonging to the state; but it being shown that the journal of the house of representatives did not contain entries to the effect that the bill was passed by a majority of the members elect, or that the vote was taken by ayes and noes upon the final passage, the mandamus was refused. In the opinion of the court the authorities are extensively reviewed and the rulings in the previous cases reaffirmed.

These cases were all decided before the issue of the bonds sued on in this case. But since that time two cases have arisen under the very law now in question, in which the supreme court of Illinois has decided that it was never passed, and is not an act of the legislature of that state. The first of these cases, Ryan v. Lynch, 68 Ill. 160, was decided in 1873. Certain tax-payers of the town of Ottawa sought to enjoin the tax-collector from collecting a tax which had been levied to pay interest upon bonds issued in aid of the Ottawa, Oswego, and Fox River Railroad Company, upon the ground that the act under which the bonds were issued, that of February 18, 1857 (the same which is now under consideration), had not been enacted in conformity with the requirements of the Constitution. At the hearing in the court below it was proven that the journal of the senate did not show that the bill had ever passed that body. Upon this proof the court, recognizing the authority of Spangler v. Jacoby, and other cases which followed it, granted the injunction asked for. In the supreme court, on appeal, it was insisted that the decree ought to be reversed, because the bondholders had not been made parties. The objection was overruled and the action of the court below affirmed.

Following this is the case of Miller & Paddock v. Goodwin, 7 Chicago Legal News, 294, not yet reported in the regular series of the reports of the state. It being shown in this case, as in Ryan v. Lynch, that the journals did not contain the requisite evidence of the passage of the law, it was again adjudged invalid. This was in January, 1875. An effort was made in this last case to impeach the transcript of the legis lative journals, but it was unsuccessful. The court repeated what it had said in the case of Ryan v. Lynch, supra, using this language: "The bill never became a law, and the pretended act conferred no power. It follows that the bonds were not merely voidable, but that they were absolutely void for want of power or authority to issue them; and consequently no subsequent act or recognition of their validity could so far give vitality to them as to estop the tax-payers from denying their legality." This opinion, it is true, was delivered after the trial of the case now before us. But it goes to show that up to the very moment of that trial there had been no vacillation in the state court as to the construction and effect of the Constitution of Illinois.

When the cases now under consideration came on for trial in May,

Vol. IV.]

TOWN OF OTTAWA V. PERKINS.

[No. 5.

1874, the defendants below offered to prove, by the journals of each house of the legislature, that there was no entry in the same of the passage by the senate of the Act of February 18, 1857. The testimony was objected to and ruled out. Substantially the same questions were raised by demurrer to a plea. The ground of this decision seems to have been that the holder of the bonds was a bona fide purchaser of them without notice of any objection to their validity; that the first instalment of interest was paid at maturity; and, therefore, that the defendant was estopped from offering any evidence to show that the act was not passed, the same having been duly published among the printed statutes as a law, and being therefore prima facie a valid law: in other words, that although the act might not have been duly passed, the town, under the circumstances of the case, was estopped from denying its passage.

We cannot assent to this view. There can be no estoppel in the way of ascertaining the existence of a law. That which purports to be a law of a state is a law or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an act of the legislature could thus be a law in one case and for one party, and not a law in another case and for another party; a law to-day, and not a law to-morrow; a law in one place, and not a law in another in the same state. And whether it be a law, or not a law, is a judicial question to be settled and determined by the courts and judges. The doctrine of estoppel is totally inadmissible in the case. It would be a very unseemly state of things, after the courts of Illinois have determined that a pretended statute of that state is not such, having never been constitutionally passed, for the courts of the United States, with the same evidence before them, to hold otherwise.

It is declared by the judiciary act as a fundamental principle "that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." Sec. 34. And this court has always held that the laws of the states are to receive their authoritative construction from the state courts, except where the federal Constitution and laws are concerned; and the state constitutions, in like manner, are to be construed as the state courts construe them. This has been so often laid down as the proper rule, and is in itself so obviously correct, that it is unnecessary to refer to the authorities.

If, therefore, the law in question had never been passed upon by the state courts, the courts of the United States would nevertheless be bound to give to the Constitution of Illinois the same construction which the state courts give to it; and to hold a pretended act of the legislature void and not a law which the state courts would hold to be so. Otherwise we should have the strange spectacle of two different tribunals, having coordinate jurisdiction in the same state, differing as to the validity and existence of a statute of that state without any power to arbitrate between them. In speaking, however, of their jurisdiction as being coördinate, it is only meant that one has no power to enforce its decisions upon the other. As a matter of propriety and right, the decision of the state

Vol. IV.]

TOWN OF OTTAWA v. PERKINS.

[No. 5

courts on the question as to what are the laws of the state is binding upon those of the United States.

But the law under consideration has been passed upon by the supreme court of Illinois and held to be invalid. This ought to have been sufficient to have governed the action of the court below. In our judgment it was not necessary to have raised an issue on the subject except by demurrer to the declaration. The court is bound to know the law without taking the advice of a jury on the subject. When once it became the settled construction of the Constitution of Illinois, that no act can be deemed a valid law unless, by the journals of the legislature, it appears to have been regularly passed by both houses, it became the duty of the courts to take judicial notice of the journal entries in that regard. The courts of Illinois may decline to take that trouble unless parties bring the matter to their attention; but, on general principles, the question as to the existence of a law is a judicial one, and must be so regarded by the courts of the United States.

This subject was fully discussed in the case of Gardner v. The Collector, 6 Wallace, 499. After examining the authorities the court in that case lays down this general conclusion, "that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law enacted a different rule." 6 Wall. 511.

Of course any particular state may by its constitution and laws prescribe what shall be conclusive evidence of the existence or non-existence of a statute; but the question of such existence or non-existence being a judicial one in its nature, the mode of ascertaining and using that evidence must rest in the sound discretion of the court on which the responsibility rests in any particular case.

Not only the courts, but individuals, are bound to know the law, and cannot be heard to plead ignorance of it. The holder of the bonds in question can claim no indulgence on that score; and can take no advantage from the allegation that he is a bona fide purchaser without notice. He would, it is true, be precluded from doing so on another ground; namely, the want of any legislative authority in fact in the town to issue the bonds in question. Want of such authority is a fatal objection to their validity, no matter under what circumstances the holder may have obtained them.

Thus far we have not adverted to the argument attempted to be drawn by the defendants in error from the fact that the act in question was referred to in two subsequent acts of the legislature as an existing law. One of these was passed on the 27th day of March, 1869, entitled "An act to amend an act, entitled 'An act to incorporate the Ottawa, Oswego, and Fox River Valley Railroad Company.'" This act authorized the company to build a railroad from the town of Wenona to the city of Peoria, and, by the 2d section, it was enacted "that any city, county, town, or township near to or through which said road is now or may hereafter be

Vol. IV.]

TOWN OF OTTAWA v. PERKINS.

[No. 5.

located is hereby authorized to subscribe to the capital stock of said railroad, upon the terms and conditions prescribed in an act entitled 'An act to authorize certain cities, counties, towns, and townships to subscribe to the stock of certain railroads' in force February 18, 1857." The title here recited is not the title of the act in question. It differs from it in several respects, though this was probably the one that was intended to be referred to. Supposing it to have been the one referred to, it is not pretended that this Act of March 27, 1869, embraces the town of South Ottawa, or the county of Kendall, whose bonds are the subject of the present suits. But it is urged that the reference to the Act of 1857 is such a recognition of that act as to give it validity if it had none before. This was certainly not the purpose of the Act of 1869, nor do we think that such was its effect. The legislature could not thus, in 1869, give validity to a void act as an act passed in 1857, which was not constitutionally passed in that year; for that would be an evasion of the Constitution. It could at most give it vitality as a new act from the date of the Act of 1869. But this it does not profess to do; it only adopts its provisions for the purposes of the act then passed. And if the legislature of 1869 could have validated all proceedings had under the supposed Act of 1857, it did not do so. It did not profess to do it. No such purpose is indicated in it. The most that can be said is, that in referring to the Act of 1857, the legislature inadvertently supposed that it had been regularly passed. Whether such inadvertence was the result of a false suggestion by interested parties, or otherwise, is of no consequence. No intent to validate and establish the Act of 1857 as a law can be gathered from the terms of the Act of March 27, 1869. To give to such a reference in a subsequent act as is here relied on, the effect of validating, or reviving, or vitalizing a void or repealed statute, when no such intention is expressed, would be dangerous and would lay the foundation for evil practices. The legislature might in this way be entrapped into the enactment or reenactment of laws when it had no intention, or even suspicion, that it was doing so. The other act relied on was passed on the 20th day of April, 1869, and is entitled "An act to amend an act entitled 'An act authorizing certain cities, counties, towns, and townships to subscribe to the stock of certain railroads' in force February 18, 1857;" being the act in question, if the words "in force" are construed to refer to the date of its supposed passage. This amendatory act declares that in addition to the cities, counties, towns, and townships authorized by the said act to which this is an amendment, to subscribe to the stock of the Ottawa, Oswego, and Fox River Valley Railroad, the following portions of cities, counties, towns, and townships be authorized to subscribe to the capital stock of said railroad in manner as provided in said act except as hereinafter provided. The act then proceeds to designate the portions of towns referred to.

The same observations apply to this act which have been made in regard to the Act of March 27, 1869. It does not profess or purport to give any new force or validity to the supposed Act of 1857, or to validate any proceedings had under that act. It takes for granted, mistakenly as we have seen, that the act was duly passed, and does nothing more.

The last mentioned act could not, in any event, by any prospective effect, aid the holders of the bonds in suit; for the elections called to

Vol. IV.]

TOWN OF OTTAWA V. PERKINS.

[No. 5.

authorize their issue were held before this act was passed, as appears by the recitals in the bonds themselves. Indeed the election authorizing the Ottawa bonds was held in 1866, long before the passage of either of the acts referred to. And in the absence of any expression in the laws themselves, evincing such an intention, it can hardly be claimed that these laws gave any retroactive validity to elections which were without authority and void when they were held.

It is to be observed that these statutes were before the supreme court of Illinois when deciding the case of Miller & Paddock v. Goodwin, being set up and relied on in the answer of the defendants in that case; but the court evidently did not regard them as having the effect claimed. The bonds were held to be void, and the collection of taxes to pay them was perpetually enjoined.

We do not perceive that the act of Congress prescribing the mode in which the public acts, records, and judicial proceedings in each state shall be authenticated so as to take effect in every other state, has any bearing whatever on the case. The authentication thus provided for was intended as evidence only of the existence of such acts and records, and not to give them any greater validity or effect than that which they had in the state from which they were thus accredited. The act expressly declares that, when thus authenticated, they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence they are taken. It merely provides a mode of proving public records, leaving them when proven invested with the same force and effect (and no other) which they have at home. But when a court of the United States is held in any state, it is bound to know the laws of such state the same as the domestic courts are. The judgments of the circuit court in the two cases under consideration are reversed, and the record remanded with directions to award a venire facias de novo.

Mr. Chief Justice WAITE dissenting. I am unable to agree to the judgment which has been rendered in this case. There is no doubt but that the construction which the courts of Illinois have uniformly given the Constitution of the state is binding upon us as a rule of decision. The difference between me and the majority of my brethren is as to the construction that has been given, not as to its effect when ascertained. After a careful consideration of all the cases to which our attention has been directed, I am forced to the conclusion that the question has been made by the courts of Illinois one of fact and not of law. The majority of this court think it has been made one of law. Such a construction might and probably would be more logical, but our duty is to ascertain what has been decided, not what should have been.

The case of Spangler v. Jacoby is the first of a long series of cases in which this question has been considered, and so far as I have been able to discover, little has been done since, except to reaffirm and apply what was there decided.

Looking, then, to that case, we find that prima facie an act enrolled, signed by the speakers of the two houses, approved by the governor, deposited in the office of the secretary of state, and published under his superintendence among the laws certified by him, is a valid law. The