Claiborne County v. Brooks

delivered the opinion of the coiirt. He stated the facts as above, and continued:

From the instructions requested by the defendant and those given by the court (although there is a want of explicitness in the bill of exceptions), we gather that the real controversy was, whether the defendant could set up against the assignees of the bond a defence (such as payment) which would have been good against Sturm, the original holder, as to whom evidence was given tending to show that he had received from the county all, or nearly all, that he was entitled to, independently of the bond sued on. Unless this was the real controversy we

The doctrine of the charge is that the power of a county to erect a court-house involves and implies the power to contract for its erection, and the power to contract involves and implies the power to execute notes, bonds, and other commercial paper as' evidence or security for the contract; or, to state it according to its legitimate conclusion and result, it is this, that whenever a county has power to contract for the performance of any work or for any other thing,, it has incidental power to issue commercial paper in payment thereof; that the one power implies the other. It being clear that the county of Claiborne had power to erect a court-house, the court below held that this involved an implied power to contract out the work, and to issue negotiable bonds of a commercial character in payment thereof.

We cannot concur in this view. The erection of court-houses, jails and bridges is amongst the ordinary political or administrative duties of all counties; and from the doctrine of the charge it would necessarily follow that all counties have the incidental power, without any express legislative authority, to issue bonds, notes, and other commercial paper in payment of county debts and charges; and if they have this power’, then such obligations issued by the county authorities and passing into the hands of Iona fide holders, would preclude the county from showing that they were issued improperly, or without consideration, or for a debt already paid-; and it would then be in the power of such authorities to utter any amount of such paper, and to fasten irretrievable burdens upon the county without any benefit received. Our opinion is, that mere political bodies, constituted as counties are, for the purpose of local police and administration, and having the power of levying taxes to defray all public charges created, whether they are or

In that case the suit was brought on coupons of bonds given to take up certain levee warrants issued by the police jury of the parish; and the court were unanimously of opinion that the police jury had no power to issue such bonds.

In the subsequent case of The Mayor of Nashville v. Ray, 19 Wall. 468 , the circumstances-were somewhat different. That was -the case of an incorporated city, and the suit was brought on treasury warrants drawn by the mayor and recorder on the

The counsel for the defendant in error relies strongly on the cases of Lynde v. County of Winnebago, 16 Wall. 6 , decided by this court, and the State ex rel. Ross v. Anderson County, 8 Baxter, 249 , decided by the Supreme Court of Tennessee, as well as upon various decisions of other State courts, particularly Williamsport v. Commonwealth, 84 Penn. St. 487 ; Mills v. Gleason, 11 Wisconsin, 470, and Bank of Chillicothe v. Chillicothe, 7 Ohio, pt. 2, p. 31.

Conceding that views different from those which we have expressed are entertained by some of the State courts, and that they may be controlling in the States where they are thus entertained, we are more especially concerned to know what is held to be the law in Tennessee, as well as what may have been held in the decisions of this court in former cases.

In the case of Lynde v. County of Winnebago, the county had express legislative authority to borrow money for the erection of public buildings,'to be determined by the people of the county at any regular election, or special election called for the purpose. The question in the case was, not as to the existence of the power, but as to the effect of the evidence on the question whether the conditions for its exercise had been complied

In the case of The State ex rel. Ross v. Anderson County, the authority to issue be ids 'as still more explicit. An act of the legislature of Tennessee, passed in 1852, ch. 191, had authorized certain counties to subscribe stock in any chartered railroad located through said counties, in any amount determined upon, in the manner prescribed by law, and to issue bonds for thé amount subscribed. Another act, passed in 1851, applied these provisions expressly to Anderson County, and the bonds in question in that case were issued in pursuance of this act, although the preliminary proceedings had been taken under a different act which authorized a subscription to the stock, but did not expressly authorize the issue of bonds therefor. The Supreme Court of Tennessee, it is true, expressed an opinion that authority to issue the bonds was implied from the power given to subscribe for stock without the aid of the act of 1851, stating, as a general rule, “ that a county, like another corporation, having right to create a debt, has also the incidental right to issue the commercial evidence of it, in such forms as may be satisfactory to the parties.” But the statement of this general proposition may be regarded as only a dictum in the case, since the judgment was fully supported by the express provisions of the act of 1852, ch. 191, if not by the power given to subscribe for stock in a railroad corporation. We are not referred to any other decision of the Supreme Court of Tennessee Avhich comes any nearer to a determination of the question.

It is undoubtedly a question of local policy Avith each State, Avhat shall be the extent and character of the poAvers Avhich its various political and municipal organizations shall possess ; and the settled decisions of its highest courts on this subject Avillbe regarded as authoritative by the courts of the United States; for it is a question that relates to the internal constitution of the body politic of the State. But as all, or nearly all the

With regard to the political divisions of counties and townships, we have heretofore, in the cases referred to, expressed our views as to their power of issuing paper obligations of a commercial character. We consider such a power as entirely foreign to the purposes of their creation, and as never to be conceded except by express legislation, or by necessary, or, at least, very strong implication from such legislation. The reasons for these views were fully expressed in those cases, and need not be repeated. We adhere to them without modification.

But when a case comes before us from a State in which a different policy prevails, clearly shown by the local constitution or statutes, or by the settled decisions of the State courts, we are bound to decide it accordingly. We are not satisfied that this is such a case.

The sections of the Code of Tennessee already referred to, so far as we can perceive, confer only the ordinary powers generally given to county jurisdictions. No extraordinary powers are given; and no mode of raising funds for the erection or repair of public buildings is pointed out, except the levy of a special tax. In the case of Wells v. Supervisors, 102 U. S. 625 , 631, we held that the power to issue county bonds did not arise from a power-to subscribe for stock in a railroad company, where authority was at the same time given to assess and collect a tax for the payment of the capital stock, and no other authority to raise the requisite funds was given.

Under the Code of Tennessee contracts may of course be made for the erection or repair of public buildings, and the power to issue vouchers for payment is necessarily implied; but

The judgment of the Circuit Court must he reversed, and the cause remanded with directions to award a new trial, and to take such further proceedings as may he in accordance with this opinion.