Guernsey v. Burlington

DILLON, Circuit Judge. The bond recites that it is made and issued “for the purpose of aiding internal improvements (not stating what) in said township,” and “in pursuance of the act entitled ‘An act to enable Burlington township to issue bonds,’ which became a law on the 2d day of March, 1871.” The act here referred to does not state on its face the purpose or object of the bonds which it authorizes and directs to be issued. This can only be learned by reference “to the orders and proclamation of the said township officers in calling the said election of January 11, 1871.” In its circumstances, in this regard, the case is peculiar, and I am not clear that the purchaser is bound to take notice of the order and proclamation. Inasmuch as the bond states that it is issued to aid “internal improvements in the township,” and as the general legislation of the state shows that “internal improvements” mean such public improvements as may legitimately be aided by taxation, I am inclined to think that the purchaser may assume, without inquiry, aliunde the bond and legislative act, that the bond is within the competency of the legislature to authorize. Gen. St. Kan. 526. If this is so, it is clear that the answer, which does not charge actual notice to the plaintiff, contains no defence to the action. It may also be remarked that the legislature of Kansas authorizes in favor of water-mills the exercise of the power of eminent domain. Gen. St. Kan. 576. There is a line of decisions, perhaps exceptional' in character and open to some doubt as to their present soundness, which sustains the validity of such legislation. Cooley, Const. Lim. 534, 536. It seems quite probable, from the reasoning of the supreme court of Kansas in Leavenworth Co. v. Miller, 7 Kan. 523 et seq., that that court would sustain the validity of a legislative act authorizing compulsory aid to erect and maintain a watermill. In that case the court says “no instance can be shown where the government may aid a thing by the power of eminent domain where it cannot also aid it by taxation.” Id. 527. Since the foregoing was written, the supreme court of the United States has decided the case of Burlington v. Beasley (October term, 1876). 94 U. S. 310, holding that bonds issued under the act of 1872 (Laws [of Kansas, p. 110] c. 68), to aid in the erection of a steam custom grist-mill, not situated on a water-course, or operated by water-power, were valid, and such mills were “works of internal improvements” within the meaning of ihe act That decision, in effect, determines this case, for it is clear that if steam custom grist-mills may be lawfully aided by taxation, then such mills operated by waterpower may be similarly aided. If there is any distinction between the two classes of mills in this regard, under the line of decisions before adverted to, the distinction is in favor of mills operated by water-power. Our judgment is that the second count of the answer is insufficient. Judgment accordingly. No further answer was made, and the plaintiff had judgment.