
    OREGON v. JENNINGS.
    EREOE TO THE CIEOUIT COTTET OE THE UNITED STATES EOE THE NOETHERN DISTRICT OE ILLINOIS.
    Submitted October 19, 1886.
    Decided November 15, 1886.
    Bonds issued by áWn in Illinois, signed by its supervisor and town clerk, as a donation to a railroad company, stated that the faith, credit, and property of the town were thereby pledged, “ under authority of” an Act gf the General Assembly of the State, giving its title and date, and each bond also stated that it and other bonds, giving their numbers and amounts, were “the only bonds issued by said town.’? “ under and by virtue of said Act.” The Act prescribed the general route of the road, and authorized the town to make a donation to the company, to aid in constructing and equipping the road,- if the donation should be voted for as prescribed. It provided for a written application by voters to the town clerk to have an election held, and the giving by him of notice of the election; that the election should “be held and conducted and return therepf made as is provided by law; ” and that, if a majority of,the legal voters voting should vote for the donation, the town should)' “by its proper corporate authorities,” make the donation, as should “be cleter- ' mined at said election,” and should issue to the company its bonds,' “ signed by the supervisor and countersigned by the clerk," and should, “ by its proper corporate authority,” levy an. annual tax to pay interest and principal. The application was made, and the notice givén, and the election was field .and presided over, not by the election judges of the ■ town, but by a moderator and the town clerk, in the manner required for the election of town officers, and resulted in a majority for the.donation. The terms of the vote were thiit the bonds should not be issued, and'the vote -should be void, unless the road was,.completed by a day ■ specified. The. road was not completed by that day. The supervisor and one of the two justices of the town having resigned}-the other justice and the town clerk, on the day before-an election for a justice was to be' held, appointed a new supervisor,, ante-dating the appointment papers more tfian three months, to the day after the supervisor resigned, and the new'supervisor, and. the town clerk, on the same day, signed the bonds knd delivered them to the company. The next day a new justice and a-new supervisor were elected by the'people. In a suit against the town, to recover on coupons cut from the bonds, by a bona fide holder of the bonds and coupons for a.valuable consideration, without notice, it was se't up in defence, that the officers of the company conspired with the justice and the town clerk, and their appointee, to have the bonds ' issued before a new supervisor should be elected by the people: Held,
    
    
      (1) The bonds were not void, as having been executed through “fraud-or • circumvention,” under the statute of Illinois, Gross’ Stat., 1869, vol. 1, 3d ed., c. 73, p! 462, § 11.
    (2) Tlie-appointment of the supervisor was valid.
    (3) The bonds were issued in compliance with-a vote of the people held prior to the adoption of the Illinois Constitution of 1870, in pursuance of a law providing therefor,-within the meaning of section 12, of article 9, o’f that Constitution, although the condition as to the completion of the road was not complied with, because, as against the plaintiff, the recitals in the bonds wore made by officers entrusted under the statute, with the duty of determining whether the condition had been complied with, and the town was thereby estopped from asserting the contrary.
    (4) The election was properly held, though presided over by a moderator, and the donation was, therefore, authorized under existing laws, by a vote prior to the adoption of additional section or article 2 to the Constitution of Illinois, within the meaning of that section.
    This was an action at law brought in the Circuit 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 $13,5Í0, the amount payable by 193 coupons of $70 each* cut from 24 bonds for $1000 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:
    “UNITED States oe Ameeica.
    No. 29. State of Illinois, Oomvty of Ogle. $1000.
    OkegoN Town Bond.
    Know-all men by these presents, that, the town, of Oregon, in the comity 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, 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 c An Act to amend an Act entitled An Act to incorporate the Ogle and Carroll County Eailroad Company,’ which said Act was approved March 30, 1869.
    This bond is one of a series, numbering from 21 to 60, inclusive, for $1000 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 únder and by virtue of said- Act.
    In witness whereof, the supervisor and town clerk of the said town of Oregon have hereunto set them hands, this thirty first day of December, a.d. 1870.
    Feed. IT. Maesh, TownCleric. 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,
    SpbiNgfiedd, Jwne 5, 1871.
    T, Charles E. Lippincott, Auditor of Public Accounts of the State of Illinois, do hereby certify that the within bond has béen registered in this oifice this day, pursuant to the provisions of an Act entitled ‘ An Act to fund and provide for paying the railroad debts of counties, townships, cities and towns,’ in force April 16, 1869.
    In testimony whereof,-I have hereunto subscribed my name, and affixed the seal of my office the day add year aforesaid.
    [seat,.] C. E. Lippinoott, Auditor, P. A.”
    
    The coupons are in the following form, varying as to number of bond and date of payment:
    “ State of Illinois, County of Ogle. The Town- of Oregon will pay to the Ogle and Carroll County Eailroad 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 presentationj being one year’s interest on bond No. 29.
    F. IT. Mabsh, Glerk. E. S. Fotxee, Supervisor”
    
    The action was tried by a jury, which, under the instruction of 'the court to do so, found a verdict for the plaintiff, for' '$20,823.68, and a judgment in her favor was rendered-for that amount, with costs. The defendant sued out a writ of error.
    ■ On the 30th of March, 1869, the legislature of Illinois .passed an Act, Private Laws of Illinois, of 1869, vol. 3, p. 324, ■with the title set forth in the. bonds, and providing'as follows:
    “■ SbgtioN 1. Be it enacted ly'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 County 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.
    § 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.”
    “§ 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 interested in having said road or any branch or division thereof constructed, may, in their corporate 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 .made until the same shall be voted for as hereinafter provided:
    § 6. That whenever twenty legal voters of any such towns, - .villages, or city shall present to -the clerk thereof a written application, requesting that an election shall be held to determine whether such town, village, or city shall subscribe to the capital stock of said company, or make a donation thereto, or loan money or bonds or its credit, to aid in the construction of said road, or any branch or division thereof, stating the "amount and whether subscribed, donated, or loaned, and the rate of interest, and the time of- payment, such clerk shall receive and file such application, and immediately proceed to 'post written notices of an election to be held by the legal voters of such town, village, or city, which notices shall be posted in ten of the most public places in such town, village, or city, for thirty days preceding such election, and shall state fully the object of such election ; and' such election shall' be held and conducted and return thereof made as is provided by law, and, in any village or city, as is provided by the law under which the same is incorporated, and an additional return shall be made to one of the directors of said company. Each 'elector at such election shall deposit a ballot for said subscription, donation, or loan ; and if a majority of the legal voters .of such town, village, or city, voting at such election, shall • vote for such subscription, donation, or loan, then such town, village, or city shall, by its proper corporate authorities, subscribe to the stock of said company, or donate or loan thereto, as shall be determined at said election, and shall issue to the said railroad company its bonds, in such denominations as said company may designate, not less than one hundred dollars, and bearing interest as may be determined at such election, not to exceed ten per cent, per annum, payable annually at such place as such company may désignate, which bonds shall be signed by the supervisor and countersigned by the clerk in towns organized under the township, organization law, and in incorporated villages or pities, signed by the president of the board of trustees and countersigned by the clerk or by the . officers having similar .powers and duties in any such village or city, and any. such- town, village,.- or city so subscribihg,-donating, or loaning, as aforesaid, shall by its-proper corporate authority, annually thereafter, assess and levy a tax upon the taxable property of said town, village, or city, sufficient to pay and liquidate, the annually accruing interest on such bonds, and so much of the principál thereof as, from time to time, shall-become due, which taxes shall be levied and-collected in the same manner as other corporation taxes in such town, village, or city: Provided, That for the payment of the principal thereof such tax shall not exceed two per cent, per annum.”
    The town of Oregon was and is an incorporated town, or township situated on both sides, east and west, óf Eock Eiver, 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.
    On the 24th of May, 1870, more than twenty legal voters Of the town presented to the clerk of the town the following written - application, signed by them, in conformity with section six of the Act: .
    “ To the Town Cleric of the Town of Oregon, vn the County of Ogle, <md State of IlVmois:
    
    The undersigned, legal voters of the said town of Oregon, in the county and State aforesaid, do hereby make application to you, .and request that an election shall be held in said town, under the provisions 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 Eailroad Company,’ approved March 30th, a.d. 1869, to determine whether said town shall, in. its corporate capacity, make a donation to the said Ogle and Cárroll County Eailroad Company of the .sum of forty thousand dollars in the bonds of "said town, in such denominations as said company may designate,' not less than one hundred dollars each, payable, at the option of said town, .within twenty yéars from the date of their issue, bearing interest from date at the rate of seven per cent, per annum, payable annually, and principal and interest payable at such place as said company may designate, to aid in the construction of the first division of said Ogle and Carroll County Báilroad; said bonds not to be issued, dated or delivered until said company shall have completed said first division of said railroad, with a T rail weighing not less than forty five pounds to the yard, in condition to run trains thereon from a connection or intersection with the Chicago and Northwestern Bailway to a point at and within said town of Oregon, within one half-mile of the east bank of Bock Biver, and shall have equipped the same with rolling-stock sufficient to operate a daily train to and from said town for the accommodation of passengers and freight, nor until said company shall have released said town from all liabilities on account of donations heretofore voted, except a donation of ten thousand dollars .voted by said town on the ninth day of December, a.d. 1869, said vote and donation of forty thousand dollars to be null and void unless said first division of said railroad shall be com■pleted and equipped as aforesaid on or before the first day of . January, a.d. 1871 ;’but in case the same shall be so completed and equipped within the time aforesaid, and said company shall execute and deliver said release, then the saicl bonds to be deliverable upon the demand of said company, and to bear date of the day of delivery.
    • And we request that immediate notice be given of such election, and that the same be held on the 23d day of June, a.d. 1870. .
    Dated this 24th day of May, a.d. 1870.”
    The clerk received and filed the .application, and gave the notice required by section' six of the Act; of an election to be held June 23d, 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-requesting that an election be' held in said town under the provisions 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 Railroad Company,’ approved March 30th, 1869, to determine whether said town shall, in its corporate capacity, make a donation to the said Ogle and Oarroll County Railroad Company, of the sum ■ of forty thousand dollars in the bonds of said town, in such denomina- , tions as said company may designate, not less than one hundred dollars each, payable at the option of .said town* within twenty years from the date of .issue, bearing interest from date at the rate of seven per cent, per annum, payable . annually, and principal and interest payable, at such place as said company may designate, to aid in the construction of the first division of said Ogle and Carroll 'County Railroad, said bonds not to be issued, dated or delivered until said company shall have completed said first division of said railroad, with a T rail weighing not less than forty five pounds to the yard, in condition^ to run trains thereon from a connection or intersection with the Chicago and Northwestern Railway, to a point at and within said town of Oregon, within one half mile, of the east bank of Rock River, and shall have equipped the same with rolling stock sufficient to operate a daily train, to and from said town for the accom'modation óf passengers and freight, nor until said company shall have released said town from all'liability.on account of donations heretofore voted, excepta donation of ten thousand dollars voted by said town on the ninth day of December, a.d. 1869, said vote of forty thousand dollars 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. 1811, but in case the same shall be so completed and equipped within the' túne aforesaid, and said company shall execute and deliver, said, release, then the said bonds to be deliverable upon demand of said company, and to bear date .of the' day of delivery.
    The inhabitants, legal voters of the said town of Oregon, are therefore hereby notified that an Election will be held by . the legal" voters of said town, at the court house in said town of Oregon, on Thursday, the 23d day of June, a.d. 1870, at 9 o’clock in the forenoon of said day, for the object and purpose of voting upon and determining the matters and questions hereinbefore and in said written application set forth and contained.
    Given under my hand, at my office in said town of Oregon, this 24th day of May, a.d. 1870.
    F. H. Maesh, Town Cleric of sand Town.”
    
    The election was held on the day, in the manner and with the result stated in the following record on file in the office of the town clerk:'
    “ Pursuant to notice given according to law, the voters of the town of Oregon, county of Ogle, and State of Illinois, assembled at the court house in Oregon, at 9 o’clock a.m., on Thursday, the 23d day of June, a.d. 1870. The meeting was called to order by the town clerk, and, on motion of W. J, Mix, E. J. Keiman was chosen moderator of said meeting, and was duly sworn by the town clerk. Proclamation was then made of the opening of the polls, which were kept open until 12 o’clock m., when, on motion of O. Wilson, they were closed for one hour, until one o’clock, for dinner, by proclamation of the town clerk. At one o’clock the polls were again proclaimed open, and were kept open until six o’clock p.m., proclamation being made half hour before the closing of the polls. . At the hour, of six p.m. the moderator proceeded to count out the ballots, until they were all counted, which number equalled the numbers on the poll-list. The ballots were then read by- the moderator, and resulted as follows: there being for donation, as stated, in the notice, one hundred and sixty three votes; against donation, as stated in the notice, twelve votes. The result being publicly read,, the meeting was then closed.
    E. J. EeimaN, Moderator.
    
    Attest: ,F. H. Maesh, Town Cleric.”
    
      A defence set up to the validity of the ■ bonds, in the amended second plea, is, that their execution was obtained by fraud and circumvention. This is founded on the following facts: The first division of the road was’not completed or equipped in accordance .with the application, and the notice of election, and the vote, on or before the 1st of January, 1811, but was completed by the 1st of April, 1811. On the 30th.of December, 1810, Mortimer W. Smith, supervisor of the town, gave to the town clerk of the town his written resignation of the office of supervisor, and it was placed among the records of the town clerk’s office. He never afterwards acted as supervisor. The town.had by law one supervisor and two justices of the peace and one town clerk.. They were all of - them, by statute, town officers. William. Schultz was elected one of the justices of the town April 5th, 1810, and duly qualified as such April 9th, 1810.- ' He continued'to reside in-the town until after April’3d,. ,1811, and during the year'1811, but was absent from the town, and in the city of New York, . from December 26th, 1810, till about January 6th, 1811. He resigned his'office on March 2d, 1811, by filing his resignation in the office of the clerk of the county, who entered it of record according to law. After that he did not act as a jus- ■ tice. A successor to Schultz as a justice was elected by the ’ people at the annual town meeting held'April 4th, 1811, and not before, and such successor qualified April 8th, 1811, and was commissioned April 15th, 1811. James H. Cartwright was the other justice of the peace. ■ Frederick H. Marsh was the town clerk.
    The following statutory provisions were in force in Illinois in 1810 and 1811: “§ 16. Designations of the office of justice of the peace and constable shall be made to the clerk of the court of the proper county, who’ shall immediately enter the date of every such resignation in the book above provided for; ” (that is, a book to be kept by the clerk' of the county, in which he was required to enter the name of every justice of the peace and constable sworn into office, together with the. date of his commission or certificate, and the time of his being sworn into office;) “which book, or a certified copy of an entry in the same, shall be received in evidence in all Courts within this State.” Gross’ Stat., 1869, vol. 1, 3d ed., o. 59, p. 39'4. “ 1. "Whenever any town shall fail to elect the proper number of town officers, to' which such town may be entitled by law, or when any person elected to any. town office shall fail to qualify as such, or whenever any vacancy sha,11 happen in any town office from death, resignation, removal from the town, or other cause, it shall be lawful for the justices of the peace. of the town, together with the supervisor and town clerk,- to fill the vacancy or vacancies occasioned or occurring in consequence of either or any of the causes above specified, by appointment by warrant under their hands and seals; and the persons so appointed shall hold their, respective offices during the unexpired term of the persons in whose stead they have been appointed, and until others are chosen or appointed in their places, and shall have the same powers and he subject to the same duties and penalties as if they had been duly chosen by the electors. 2. Whenever a vacancy shall occur, from any cause, in any or either of the offices enumerated in the "foregoing section, as composing the board of appointment .for the appointment of town officers, in case of vacancy, it shall be lawful for the remaining officers of such appointing board to fill any vacancy or vacancies thus occurring, except in cases of vacancy in the office of justice of the peace, which shall be filled only by election. 3. When any appointment shall be made, as provided in the two preceding sections, the officers making the same shall cause the warrant of appointment to be- forthwith filed in the office of the town clerk, who shall forthwith give notice to each person appointed.” Gross’ Stat., 1869, vol. 1, 3d ed., c. 103 d, árt. 7, pp. '750, '751.
    On the 3d of April, 1871, Cartwright, (the remaining justice,) and Marsh, (the town clerk,) met at the office of the town clerk, and, by a paper then signed by each of them, appointed Elias S. Potter to fill the vacancy- in the office of supervisor, caused by the resignation of Smith, and ordered the clerk to give the certificate of appointment to Potter. • The paper bore date the 31st of December, 1870, and was filed in the office of the town clerk on the 3d of April, 1871. On the same 3d of April, a proper official bond, executed on tbat' day by. Potter and two sureties, but bearing date tbe 3Íst of December, 1810, was filed in tbe office of' tbe town clerk, with an oath of office signed and sworn to by Potter before Cartwright on tbe same 3d of April, but purporting to have been subscribed and swopi to on tbe 31st of December, 1810. On tbe same 3d of April, Potter, as supervisor, and Marsh, as town clerk, signed tbe bonds and tbe coupons, and.delivered them to tbe president of tbe railroad company. One Dwight was elected supervisor of tbe town, at tbe regular annual town meeting, held’on April-4th, 1811, and assumed tbe office April 10th, 1811, and held, it for .the ensuing year. It was known to all parties tbat this town meeting was to be held, and it is alleged that tbe officers of tbe railroad company conspired with Cartwright and Marsh to procure tbe appointment of Potter as supervisor, so tbat tbe bonds might be issued before the election by the-people of a new supervisor on April 4th, 1811.
    Tbe statute of Illinois, as to fraud and circumvention, set up and relied on, is as follows: “ 11. If any fraud or circumvention be used, in obtaining tbe making or executing of any of tbe instruments aforesaid,” (tbat is, any note, bond, bill, of other instrument in writing, for tbe payment of money .or property, or tbe performance of covenants or conditions,) “ such, fraud or circumvention may be pleaded in bar to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee or assignees of such instrument.” Gross’ Stat., 1869, vol. 1, 3d ed., c. 13, p. 462.
    
      Mr. James K. Edsall for plaintiff in error.
    I. Under Kev.'Stat. Ill. § 11, c. 13, tbe defence tbat the making or execution of an instrument was obtained by fraud is good against a bona-fide bolder for value, to whom it was transferred before maturity without notice of the alleged fraud. It is otherwise where tbe fraud relates solely to tbe consideration. Hubbard v. Rankin, 11 Ill. 129 ; Taylor v. Atchison, 54 Ill. 196 ; Vanbrunt v. Singley, 85 Ill. 281 ; Richardson v. Schirtz, 59 111. 818; Easter v.'Minrnd, 26 ILL 495; • Depuy v. Schuyler, 45- Ill. 306. Aside from the question of fraud Potter’s appointment as supervisor was invalid, because Schultz was still in office when it was made, and it appears affirmatively that he was not present when the appointment was made, and-took no part in it. Crocker v. Crane, 21 Wend. 211, 218 ; S. O. 84 Am. Dec. 228 ; Babcock v. Lamb, 1 Cowen, 238 ;' Ex parte Rogers, 7'Cowen, 526, and note; Louk v. Woods, 15 Ill. 256, 262; [Williams v. Lunenburg School. District, 21 Pick. 75; S. 0. 32 Am. Dec. 248; McGoy v.■ Gnrf/ice, 9 Wend. 17; S. G. 24 Am. Dec. 113'. See Anthony v. Jasper, 101 IT. S. 693.
    II. These bonds were issued in violation of § 12, Art. XI., of the Constitution of Illinois of 1870, which prohibits municipal corporations from creating indebtedness to exceed five per cent, oh the'assessed value of the taxable property therein. When they were issuéd, the town was already indebted beyond that amount. There was no prior vote of the people, within the saving clause, and the adoption of the constitution deprived the town of the power to issue them. Buchanan v. Litchfield, 102 U. S. 278 ; School District v. Stone, 106 U. S. 183 ; Litch-field v. Ballou, 114 TJ. S. 190 ; Prince v. Quincy, 105 Ill. 138. The question whether power exists in a municipality to issue ■ bonds may depend on extrinsic facts, not appearing on the Lace of the law. The purchaser is bound to know whether the power exists; Northern Bank v. Porter Township, 110 IT. S. 608 ; Dixon Gounty v. Field, 111 IT. S. 83 ; Merchants' Bank v. Bergen Gounty, 115 IT. S. 384 ; Daviess Gounty v. • Dichin-son, 117- IT. S. 657 : but is protected against mere irregularity in the execution of the power. See also Anthony v. Jasper Gounty, cited above ; People v. Dutcher, 56 Ill. 144 ; People v. Glami, 70 Ill. 232 ; People v. Holden, 91 Ill. 446. Por the construction of this clause of the State Constitution by the Supreme Court of the State, see Middleport v. AEtna Life Ins. Go., 82 Ill. 562; People v. Jackson Gounty, 92 Ill. 441; Prairie v. Lloyd, 97 Ill. 179 ; Wade v. La Mobile, 112 Ill. 79.
    III. The alleged vote of the people was not taken' at an election as required by the statute. Chicago c& Lowa Railroad v. Mallory, 101 Ill. 583 ; Lippincott v. Pama, 92 Ill. 24.
    
      IV^ Tbe town is not estopped by tbe recitals in tbe bonds from making tbe defences now interposedi Assuming for tbe present purpose that tbe recital is sufficient to show that, the bonds were issued in accordance -'with tbe provisions of tbe act: therein mentioned, .this would- fall far short of showing that tbe same were issued in compliance with a vote of the people of tbe town at an election held in pursuance of that act prior ■ to tbe adoption of tbe constitution in 1870. Tbe act required an .election to be held before tbe bonds wore issued, but did. not require tbe same to be held before tbe adoption of tbe corn stitution in 1870. This requirement was imposéd by the constitution itself. . Tbe recital does not purport to sbow compliance with tbe vote of tbe people nor with tbe constitutional requirement in any respect, and cannot ‘be so enlarged by construction as to embrace the '-same. Buchanan v.’ Litchfield, School District v. Stone, Northern Bank v. Porter Township, Dixon\ Gouní/y v. Field, all cited above ; Bates v.. Ind. School District of Lyon Coimt/u, 25 Fed. Eep. 192 ; Lnebmdn v. San Francisco, 24 Fed. Eep. 705.
    Y. Tbe town is not estopped by tbe certificates connected - with tbe registration of the bonds from showing tbe truth in ' its defence. Dixon Gownty v. Field and Dmiess. County v.' Dickinson, cited above. It cannot be held .that it is estopped by tbe secret and fraudulent' act of one who, at the time, bad no color of title to tbe office of, supervisor. Anthony v. Jasper County' and. Merchants’ Bank v. Bergen Cou/nty, 'both - cited above.
    YI. No estoppel arises from the- recitals contained in tbe caption to the registration of the bonds in tbe supervisor’s book. Eev. Stat. Ill., c. 113, par. 12.
    YII. Tbe town is not estopped by tbe recovery in tbe former suit, brought by Wallace upon other coupons, -from making tbe defence set up in tbe special pleas in this suit. Tbe Wallace suit was brought on other coupons than those involved in this suit. Tbe defences interposed by tbe special pleas were not set up and actually litigated in tbe Wallace suit. Such being tbe case, tbe verdict and judgment in that suit do not estop tbe town from making either of tbe de-fences set up in the special pleas in this suit. Cromwell v. Cownty of /Sao, 94 U. S. 351; Davis v. Brown, 94 TJ. S. 423 ; Bussell v. Place, 94 IJ. S. 606; UTab. Bank v. School District of Riverside, 25 Fed. Eep. 629; Hesbit V. Ind. School Dist., 25 Fed. Eep. 63,5. The statutory defence set up in the second ple^ could not have been proven as against a bona fide holder for value under the general issue, which was the only plea ■filed in the "Wallace suit. Anderson v. Jacobson, 66 Ill. 522; Cole v. Joliet Opera House Co., 79 Ill. 96; Sims v. Klein, Breese, 292, 302. While it was competent at common law, and .independently of the-statute,. to prove fraud in the inception of the paper under that plea, it was sufficient answer to such proof, introduced under the general issue at common law, to show that the plaintiff was a bona 'fide holder for value. Smith v. Sac County, 11 Wall. 139.. TJnder the pleadings in that case, it was unnecessary that the jury should pa,ss upon the question of fraud in order to find a verdict for the plaintiff, who appeared to be a bona fide holder., Under the Illinois statute, when the defence that the making and executing of the paper was obtained by fraud, etc., is specially pleaded, the defence is good against a bona fide holder. Hubbard -v. Bcmlom, and other eases cited ante. It is not compe■tent to show by extrinsic evidence that matters were adjudicated, in such former suit, not embraced within the issues as formed on the record. Packet Go. v. Sickles, 5 Wall. 580; Putmam v. ■Hew Albany, 4 Bissell, 365, 383; Providence v. Adams, 11 E. I. 190,; Russell v. Place, 94 U. S. 606.
    ■ As to tíie Third Plea: The evidence shows that the de-fence set up in this plea, arising under § 12, Art. IX. of the Constitution, was not in any manner litigated in the Wallace suit. No evidence was introduced in that case tending to show either the amount of the existing indebtedness of the town or the assessed value of the taxable property therein. The defence appears to have rested on other grounds. Davis V-. Brown, 94 II. S. 423, 428; Bcvrger v. Hobbs, 67 Ill. 598; Sturtevant v. Ramdall, 53 Maine, 149; Cromwell v. County of Sar, Bussell v. Place, above cited.
    
      
      Mr. Samuel W. Packard for defendant in error.
   Me. Justice Blatoheoed,

after stating tbe facts as above reported, debvered tbe opinion of tbe court.

Tbe court refused to submit to tbe jury, and we tbink properly, any question as to whether tbe making or execution of tbe bonds and , coupons was obtained by fraud or circumvention.

Even if tbe statute applies to town bonds and their coupons, no fraud or imposition was practised on Potter or Marsh to induce them to sign these bonds and coupons. They knew what they were signing and signed intentionally. Tbe fraud or cbcumvention intended by tbe statute, which only embodies a rule of tbe common law, is not that which goes merely to tbe consideration of tbe instrument, but it must go to tbe execution or making; and there must be a trick or device by which one kind of instrument is signed in the belief that it is of another kind, or the amount or nature or terms of tbe instrument must be misrepresented to tbe signer. No different ruling as to tbe statute has ever been made by the Supreme Court of Illinois, especially in a case where, as here, tbe bolder of tbe instrument is a bona fide holder of it, before maturity, for a valuable consideration, without notice. In Latham v. Smith, 45 Ill. 25, decided in 1867, in construing this statute, tbe court said: “ A fraud in obtaining- a note may consist of any artifice practised upon a person to induce him to execute it, when be did not intend to do such an act. Circumvention seems to be nearly, if not quite, synonymous with fraud. It is any fraud whereby a person is induced by deceit to make a deed or other instrument: It must be borne in mind that tbe fraud or covin must relate to tbe obtaining of tbe instrument itself, and not to tbe consideration upon which it is based. It is not fraud which relates to tbe quality, quantity, value, or character of tbe consideration that moves tbe contract, but it is such a trick or device as induces the giving of one character of instrument under tbe belief that it is another of a different character ; such as giving a note or other agreement for one sum or thing when it is for another sum or thing; or as giving a note under the belief that it is a receipt.” This ruling was followed in Shipley v. Cartoll, 45 Ill. 285 ; Elliott v. Levings, 54 Ill. 213 ; and Maxcy v. Williamson County, 72 Ill. 207.

It is also contended that the appointment of Potter as supervisor was invalid, because Schultz, though he had resigned' as justice, leg'ally continued in office till his successor was elected, and yet took no part in the appointment. But it is plain, we think, that, within the language and meaning of the statute, as respects the four members of the appointing board designated by statute, two of them were out of office so far1 as their acting as such members was concerned. The supervisor and Schultz had resigned, and their offices were vacant, and it was lawful for the remaining two officers to fill the vacancy'in the office of supervisor. No. authority to which we are referred holds to the contrary. Where a town is trying to escape the .enforcement of its liability to creditors through the resignation of an officer on whom process is to be served, and the failure to supply his place, the resigning officer is rightly held, quoad creditors, to continue in office, subject to the service of process, till his successor qualifies. In the present case there was not only a “vacancy” in the office of supervisor, for the purpose of filling it,, under § 1, but there was a vacancy in the office which Schultz had held, for the purpose of the action of Cartwright and Marsh alone, as the remaining officers of the appointing board, to appoint a supervisor, under § 2. On any other construction, as, by § 2, a vacancy in the office of justice c£m be filled only by election,, a town would, in case of a vacancy in the office of justice, have to go without a supervisor, in case of a vacancy in his office, till a justice could be elected.

Another defence is. set up, under the amended third plea, founded on § 12 of Article 9 of the. Constitution of Illinois, which went into effect August 8th, 1870, and provides as follows: “ § 12. No county, city, township, school district, or other municipal corporation shall be allowed to become indebted in any manner or for any purpose* to an amount, including existing indebtedness, in the aggregate exceeding-live per centum on the value of the taxable property therein, to be ascertained by the last assessment for the State and county taxes previous to the incurring of such indebtedness. Any. county, city, school district, or other municipal corporar tion, incurring any indebtedness as aforesaid, shall, before or at the time .of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within, twenty years from the time of contracting the same. This section shall not be construed to prevent any county,' city, township, school district, or other municipal corporation from issuing their bonds in compliance with any vote of the people which may have, been had prior to the adoption of this Constitution, in pursuance of any law providing therefor.”

It appearing that, when the bonds in question in this suit were issued, the debt of the town was already greater than five per centum on the value of its taxable property, as ascertained by the assessment for 1810, it is contended that the'bonds could not be lawfully issued, except in compliance with the vote of June 23d, 1870, and in conformity with the conditions imposed by that vote, one of which was the completion and equipment of the. first division of the road on or before Jam uary 1st, 1871, and that that condition was not observed.’ The question is sought to be made one of power or authority to issue the bonds, within the rules laid down by this court as applicable even in the case' of bonds in the hands of a bona fide holder.

At the time the bonds in question were issued, a statute enacted April 16th, 1869, was in force in Illinois, § 7 of which, Gross’ Stat., 1869, vol. 1, 3d ed., p. 556, provided that any town should have the right, “ upon making any subscription or donation to any railroad company, to prescribe the conditions upon which such bonds, subscriptions, or donations shall be made, and such bonds, subscriptions, or donations shall not be valid and binding until such conditions precedent shall have been complied with.”

The language of this statute was as imperative as is that of the Constitution of 1870 in regard to complying with the conditions contained in any vote of the people ; and § 6 of the" Act of March 30th, 1869, before cited, prescribes that the 'proper corporate authorities, of the town shall make the dona- ■ tion or subscription, “ as shall be determined at said election.”

In respect to this compliance ■with the conditions imposed by the vote of the people, whether the question is to be regarded as arising under the provision of the Constitution or that of a statute, it must equally be regarded as concluded by the recital in the bonds, made by the supervisor and the town clerk. Section 6 of the Act of March 30th, 1869, provides that if a majority of the legal voters of the town, voting at the election, vote for the donation, the town shall, by its “ corporate authorities,” make the donation to the company, “ as shall be determined at said election,” and shall issue its bonds to the company, “ which bonds shall be signed by the supervisor and countersigned by the clerk in towns organized under the township.law.” "Within the numerous decisions by this court on' the subject, the supervisor and the town clerk, they being named in the statute as the officers to sign tho bonds, and the “ corporate authorities ” to act for the town in issuing them to the company, were the persons entrusted with the duty of deciding, before issuing the bonds, whether the conditions determined at the election existed. If they have certified to that effect in the bonds, the town is estopped from asserting, as against a bona fide holder, that the conditions prescribed by the popular vote were not complied with. They state, in each bond, that the faith, credit, and property of the town are, by the bond, solemnly pledged for the payment of the principal and interest named in it “ under authority of ” the Act of March 30th, 1869, reciting its title, and that the 60 bonds, amounting to $50,000, “ are the only bonds issued by said town of Oregon under and by virtue of said Act.” •The provision in § 6 of the Act, that the town shall, by its proper corporate authority, annually assess and levy a tax to pay the interest and principal of the bonds, is a warrant for the pledge made, in the bonds, of the faith, credit, and property of the town. The recitals are within the adjudged cases in this court, as to the effect of recitals in bonds, that they are issued “ under authority of ” a specified statute, ánd “under and by virtue* of ” that statute, and they estop the town from taking the defence .that-the first division of the road was not completed by the time specified, as against the plaintiff, as a Iona fide hplder of the bonds.

In Pana v. Bowler, 107 U. S. 529, 539, this court upheld the effectiveness of 'a recital in bonds, in favor of a Iona fide holder, as against an alleged defect in the mode of conducting an election, held prior to-the adoption of this same Constitution of Illinois, the bonds being issued after its adoption,, •although that instrument forbade the issuijig of the bonds, unless their issue should have been authorized under then existing, laws, by a vote of the people prior to the adoption of the Constitution.

The present case is directly within the decision of this court in Ins. Co. v. Bruce, 105 U. S. 328, where it was held that recitals in bonds estopped a town in Illinois, as against a Iona fide holder, from showing that conditions imposed on its liability by the. vote of the people had not been complied with, although the statute declared that the bonds should not be valid and binding until such conditions precedent had been complied- with. There are numerous other cases in this court' to the same effect.

The provision of § 12 of Article 9 of the Constitution of Illinois did not'introduce any new rule of evidence in regard to the mode of proving, in favor of a bona fide holder, the compliance with the vote of the people, but left the compliance to be conclusively established in such a case by the recital in the bonds, made by the designated official authorities.

We are not referred to any decision of the Supreme Court ■ of Illinois, made prior to the issuing of the bonds in question, which holds to the contrary of the views we have announced. The case of The People v. Dutcher, 56 Ill. 144, decided at September Term, 1870, was a mandamus applied for by a railroad company to compel a supervisor to subscribe for stock, where conditions imposed by the vote of the town had not been' complied with, and its bonds had not been issued. .The mandamus was refused. This direct proceeding is, as this court has uniformly held, a very different thing from a suit on the bonds, by a ionafide holder, the cases not being analogous or governed by the same rules.

' A defence is also set up, under the amended fourth plea, founded on the second additional section or article to the Constitution of Illinois, .of 1870, which took effect July 2, 1870, and is in these words :• “No county, city, tovfn, township, or other municipality shall ever become subscriber to the capital stock of any railroad or private corporation, or make donation to or loan its credit in aid of such corporation : Provided, however, That the adoption of this article shall not be construed as affecting the right of. any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption.’-’

The bonds in question having been issued after July 2,1870, and the requirement, to make them valid, being that they must have been authorized, under laws^in force before July 2, 1870,. by a vote of the people of the town given before that date, it is contended that they were not so authorized, because the vote of June 23, 1870j was taken at a town meeting held and presided over by a moderator, and not by judges of election. The argument made is, that § 6 of the Act of March 30th, 1869, provided that the election should “be held and conducted and return thereof made as is provided by law, and, in any village or city, as is provided by the law under, which the same is incorporated ; ” and that a town meeting, presided over by a moderator, and not held by the supervisor, assessor, and collector, as judges of election, was not an “ election,” within the meaning of the statute, and so was not an election “ under existing laws,” within the meaning of the Constitution.

The election was in fact conducted in the manner required for the election of town officers, and not in the manner required for general elections. ¥e are of opinion that, under the Act of 1869, the election in a town could properly be conducted in the manner prescribed by law for the election in towns of town officers, namely, by a moderator and the town clerk, the town clerk having given; as required by the Act, the prior notice of the election, and the return of the election being filed in the office of the town clerk, and the two 'officers being paid by the- town. The voting for town officers at annual town meetings in the- manner prescribed therefor by the statutes of Illinois, is called in those statutes an “ election,” and this special voting in the same manner for this town object was an “ election,” within the meaning of the Act of 1869. The requirement of the Act is, that the “ election shall be held 'and conducted and return thereof made as is provided-by law,” and not “ as is provided by law for general elections:” If a town, it is the law provided for town elections. If a village or city, and the law of its incorporation has special provisions, those are to be followed; otherwise, any general law as to village or city elections is to be observed.- As the proceeding was to originate by an application filed in the town: clerk’s office, so the same officers who would conduct an ordinary town election were to be concerned with this election, and the town clerk’s office was to be the place of deposit of all the papers and of the return of the vote, and two town officers were to issue the bonds. None of the proceedings were to be connected with thé county clerk’s office, as in the case of a general election. This was the ruling of the Supreme Court of Illinois,, in a case decided after June 28, 1810, though, before these bonds were issued, The People v. Dutcher, 56 Ill. 144; and it was followed in other cases, in that court, after the bonds were issued, though somewhat modified more recently. Ve think it was the correct ruling.

The questions above considered cover substantially all the assignments of error. The direction to find a verdict for the plaintiff was proper.

Judgment affirmed.  