But the obvious meaning of the clause relied on to accomplish that result is merely that the general laws of the state authorizing counties to subscribe for stock in that railroad company shall remain unaffected by the charter, which conferred similar power on townships, corporate towns, and cities on the line of the road, and not in any manner to limit the operation and application of those general laws upon the subject. The very purpose of the proviso seems to us to have been to exclude the very conclusion now sought to be drawn from it. Indeed, if the argument be good for anything at all, it results that, under the operation of this reservation, the naked power to subscribe for stock remains in the counties, without any authority, and therefore without any obligation, to pay for it; for, if the power to issue bonds is taken away, so also is the power to pledge the faith of the county for the annual payment of the interest and the ultimate redemption of the principal,-a pledge which means, of course, that payment shall be made out of the revenues of the county derived from taxation. As such a construction of law confesses its own absurdity, it is not necessary to make any formal refutation of it.

It is further contended, on the part of the plaintin in error, that if at the date of these bonds Kankakee county had corporate power to execute and issue them, it could only be done by the county court, according to the terms of the statute conferring that power. Such, in fact, is the language of the general law of 1849, from which the power is derived. But the county of Kankakee, it is admitted, was organized under the act to provide for township organization of April 1, 1851. Laws 1851, p. 35. Under that mode of organization the corporate powers of counties, otherwise exercised by the judges of the county court, are devolved upon a board of supervisors, such as, in the present instance, executed and issued the bonds in question. Article 15, § 4, of that act declares that "the powers of a county as a body politic can only be exercised by the board of supervisors thereof, or in pursuance of a resolution by them adopted." And article 16, § 4, provides that "the board of supervisors of each county in this state shall have power at their annual meetings, or at any other meeting, to perform all other duties not inconsistent with this act which may be required of or enjoined on them by any law of this state to the county courts."

In Green v. Wardwell, 17 Ill. 278, it was said that the board of supervisors were the legal successors to the county commissioners' court, as had been previously decided in People v. Thurber, 13 Ill. 554. In Prettyman v. Sup'rs of Tazewell Co. 19 Ill. 406, the very

point here raised was decided, and it was held that under the act of 1851 it was the duty of the board of supervisors to act instead of the county court in calling an election to vote on the question, in making the subscription for the stock, and in issuing county bonds in payment therefor. The act of April 1, 1861, "to reduce the act to provide for township organization and the several acts amendatory thereof into one act, and to amend the same," (Sess. Laws Ill. 1861, pp. 216-237,) removes all doubt on the subject. It confers (article 14, § 6, cl. 8) upon the board of supervisors authority "to perform all other duties, not inconsistent with this act, which may be required of or enjoined on them by any law of this state, or which are enjoined upon county courts, when holding terms for the transaction of county business in those counties not adopting township organization." This act was in force when the bonds sued upon in this case were issued, and they are governed by it. The case of Gaddis v. Richland Co. 92 Ill. 119, relied upon by counsel for plaintiff in error in this point, is not inconsistent with this result in the present case, because that decision is based on the words of the charter of the railroad company conferring the authority to subscribe to its capital stock, which, in the opinion of the court, expressly limited the exercise of the power to the county court. The same comment may be made upon the case of Sup'rs Schuyler Co. v. People, 25 Ill. 181.

We find no error in the record, and the judgment of the circuit court is accordingly affirmed.

(107 U. S. 1)

UNITED STATES v. ERIE RY. Co.

(February 5, 1883.)

FOREIGN-HELD BONDS-LIABILITY OF BONDHOLDERS-INTEREST COUPONS-VALUATION IN CURRENCY.

Same case, 1 SUP. CT. REP. 223. Rehearing denied.

On Petition for Rehearing.

Sol. Gen. Phillips, for the United States, by whom petition was submitted.

WAITE, C. J. When this case was argued no special claim was made for a judgment based on the currency value of the pounds sterling at the time the taxes sued for ought to have been paid, and

for that reason a judgment was ordered for the present value of pounds sterling in lawful money. We are now asked to rehear the case for the purpose of considering that question.

In

The company was liable for taxes of 5 per cent. on the amounts of interest paid. As the payments were all made in pounds sterling, the computations must necessarily be on that basis. The act of July 13, 1866, chapter 184, § 9, (14 St. 138,) made it the duty of the company to return a list of the prescribed taxes to the assessor. making up such lists the law required (page 147) that it should be declared whether the amounts were stated according to their values in legal-tender currency or in coined money. When stated in coined money, it was the duty of the assessor to reduce them to their equivalent in legal-tender currency, according to the value of coined money in currency for the time covered by the returns. All lists furnished the collectors by the assessors were required to "contain the several amounts of taxes assessed, estimated, or valued in legal-tender currency only."

In Dollar Savings Bank v. U. S. 19 Wall. 240, it was decided that a suit at law might be maintained for the recovery of a tax on interest paid, even though no list had been returned and no assessment made, and in the opinion it was said:

'No other assessment than that made by the statute was necessary to determine the extent of the bank's liability. An assessment is only determining the value of the thing taxed, and the amount of tax required of each individual. It might be made by the designated officers or by the law itself. In the present case the statute required every savings bank to pay a tax of 5 per cent. on all undistributed earnings made or added during the year to their contingent funds. There was no occasion or room for any other assessment. This was a charge of a certain sum upon the bank, and without more it made the bank a debtor."

In the present case no list was returned by the company and no assessment made by the assessor. Consequently no list was ever furnished the collector, and the amount to be paid in currency was never officially ascertained. This suit is, therefore, for the debt which the company owes, to-wit, 5 per cent. of the pounds sterling it has paid as interest on its bonds. If the debt had been paid at the time it was due, the officers chargeable with the collection could have accepted nothing but legal-tender currency, and to an amount equivalent to the value of the coin which was owing. In other words, the debt was in the nature of an obligation to pay in coin, but which the government would not receive in anything but legal-tender currency of equal value with the coin. This is a suit for the recovery of that

debt as a debt. If there were now any difference in value between coin and currency it would have been proper to render the judgment for the coin or its equivalent in currency, (Gregory v. Morris, 96 U. S. 624,) but as there is no such difference a general judgment for the amount due is all that is necessary. The amount of the debt was always a fixed sum in pounds sterling. The provision for the estimation of the value of this debt in legal-tender currency was, in our opinion, a regulation of the mode of collection, and not a change in the amount of the obligation. As promptness was required in the payment of taxes, and the amount to be paid in currency would not ordinarily exceed the value of the coin which was due, it was thought proper by the government to require its officers to make collections in currency. For that reason it was provided that in making out the tax-lists the amount necessary to discharge coin taxes in currency should be set down, rather than the amount of the coin that was owing. In this way there would be less opportunity for confusion in the accounts between the government and its officers.

As upon this application we have had the benefit of a printed brief by the solicitor general on behalf of the United States, and upon full consideration are satisfied that the judgment as it stands is right, notwithstanding the claim that is now made, the application for a rehearing is denied.

(106 U. S. 620)

UNITED STATES, Intervenor, v. WILSON, Receiver, etc.

(February 5, 1883.)

TAXATION-CERTIFICATES OF INDEBTEDNESS-NOT CIRCULATION.

Appeal from the Circuit Court of the United States for the Middle District of Tennessee.

Sol. Gen. Phillips, for appellant.

•No counsel for appellee.

WAITE, C. J. We are not satisfied that the certificates of indebtedness, on account of which the United States have assessed the taxes petitioned for, were calculated or intended to circulate or to be used as money. They were not, therefore, taxable as "circulation" under the third clause of section 3408 of the Revised Statutes.

The decree dismissing the petition of intervention is affirmed.

⚫622

(106 J. S. 622)

COUNTY OF MADISON v. Warren.

(February 5, 1883.)

WRIT OF ERROR-TRIAL BY COURT-WAIVER OF JURY TRIAL.

Stipulation must be affirmatively shown.

In Error to the Circuit Court of the United States for the Southein District of Illinois.

Chas. P. Wise, for plaintiff in error.

T. C. Mather, for defendant in error.

WAITE, C. J. This is a case tried and determined by the court without the intervention of a jury. The record does not show any stipulation in writing waiving a jury. The errors assigned all relate to rulings of the court on the trial, excepted to at the time and presented by bill of exceptions. The rule is well settled that if a written stipulation waiving a jury is not in some way shown affirmatively in the record, none of the questions decided at the trial can be re-examined here on writ of error. Kearney v. Case, 12 Wall. 283; Gilman v. Illinois & Mississippi Tel. Co. 91 U. S. 614; Boogher v. New York Life Ins. Co. 103 U. S. 96; Hodges v. Easton, 1 SUP. CT. REP. 307. For this reason, and without passing on any of the questions presented by the assignment of errors, we affirm the judgment.

(106 U. S. 623)

COUNTY OF ALEXANDER v. KIMBALL.

(February 5, 1883.)

Preceding case followed.

WRIT OF ERROR-REVIEW ON.

In Error to the Circuit Court of the United States for the Southern District of Illinois.

Wm. B. Gilbert, for plaintiff in error.

T. C. Mather, for defendant in error.

WAITE, C. J. This, like the County of Madison v. Warren, just decided, [ante,] is a case tried by the court, and there is nothing in the record showing a stipulation in writing waiving a jury. The errors assigned all relate to rulings at the trial, and the judgment is affirmed for the reasons stated in the opinion filed in the case of the county of Madison.