Counsel for Defendants in Error.

"Sec. 13. It shall be lawful for the corporate authorities of any city or town, the county court of any county desiring so to do, to subscribe to the capital stock of said company, and may issue bonds therefor, and levy a tax to pay the same, not to exceed one-twentieth of one per cent upon the assessed value of taxable property for each year." Ib. p. 88.

On the other hand, $$ 17 and 18 of the General Railroad Law (Gen. Stat. Missouri, 1865, p. 338) provide as follows:

"Sec. 17. It shall be lawful for the county court of any county, the city council of any city, or the trustees of any incorporated town, to take stock for such county, city, or town in, or loan the credit thereof to, any railroad company, duly organized under this or any other law of the state: provided, that two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent to such subscription.

"Sec. 18. Upon the making of such subscription by any county court, city, or town, as provided for in the previous section, such county, city, or town shall thereupon become, like other subscribers to such stock, entitled to the privileges granted and subject to the liabilities imposed by this chapter, or by the charter of the company in which such subscriptions shall be made; and in order to raise funds to pay the instalments which may be called for from time to time by the board of directors of such railroad, it shall be the duty of the county court, or city council, or trustees of such town, making such subscription, to issue their bonds or levy a special tax upon all property made taxable by law for county purposes, and upon the actual capital that all merchants and grocers and other business men may have invested in business in the county, city, or town, to pay such instalments, to be kept apart from other funds, and appropriated to no other purpose than the payment of such subscription.

Mr. T. K. Skinner and Mr. J. B. Henderson each filed a brief for plaintiff in error.

Mr. James Carr and Mr. George D. Reynolds for defendants in error.

Argument for Defendants in Error.

I. There were two laws under which the subscription could be made, and the bonds in question issued in payment of said subscription by Knox County to the Missouri and Mississippi Railroad Company. The one was the charter of the railroad company, and the other was the general railroad law.

Under the charter of the Missouri and Mississippi Railroad Company the county court of Knox County could make a valid subscription to said company without the assent of twothirds of the qualified voters of said county, but the County Court in levying a tax to pay the same was limited to a sum not to exceed one-twentieth of one per cent upon the assessed value of the taxable property for each year.

Under the general railroad law it was not lawful for the county court of Knox County, or any other county, to subscribe to the capital stock of any railroad company, without the assent of two-thirds of the qualified voters of the county; but there was no restriction upon the amount of the levy which it was the duty of the county court to make.

Only parties and privies are estopped by a judgment. Stacy v. Thrasher, 6 How. 44. The defendants were neither parties nor privies to the judgment which the relator recovered against Knox County. They had no right to call witnesses to testify in the their favor, to cross-examine the witnesses introduced by the opposite side; to control the defence, or to sue out a writ of error. As they were not parties to said judgment, they are not estopped from showing that the allegations in the relator's petition, upon which he recovered said judgment by default, are false. Hale v. Finch, 104 U. S. 261; Railroad Co. v. Nat. Bank, 102 U. S. 14; Wood v. Davis, 7 Cranch, 271.

Even if the defendants had been parties to said action in which said judgment was recovered, they would not be estopped from showing the actual contract between Knox County on one side and the Missouri and Mississippi Railroad Company and the holders of the bonds issued to it under and in pursuance of said contract on the other side. It has already been shown that the county court of Knox County had no authority or power to subscribe to the capital stock of the Missouri

Argument for Defendants in Error.

and Mississippi Railroad Company under the General Statutes of Missouri without the assent of two-thirds of the qualified votes of the county. And if the county court had put such a recital into the bonds, it could not by such false recital create an obligation to levy a tax under the General Statutes, and thereby estop the defendants from showing that the subscription was made and the bonds issued under the charter of the Missouri and Mississippi Railroad Company. Rights cannot be created and duties imposed by false recitals, where there is a total want of power. Carroll County v. Smith, 111 U. S. 556; School District v. Stone, 106 U. S. 183; Norton v. Shelby County, 118 U. S. 425; Daviess County v. Dickinson, 117 U. S. 657.

The judgment by default being rendered on a false allegation, the correspondents have a clear right to disprove them and to show the actual contract between the parties. Davis v. Brown, 94 U. S. 428; Packet Co. v. Sickles, 5 Wall. 580.

When the well settled canon of construction, expressio unius est exclusio alterius, is applied to this recital, it is conclusive that the subscription was made and the relator's bonds issued in part payment thereof, under and by authority of the 13th section of the charter of the Missouri and Mississippi Railroad Company only. United States v. Macon County Court, 99 U. S. 582.

Estoppels must estop both parties, or they will not estop either party. They must be mutual. Bigelow on Estoppel, 98 (4th ed.); Petrie v. Nuttall, 11 Exch. 569; Railroad Co. v. National Bank, 102 U. S. 14; Carroll County v. Smith, 111 U. S. 556, 562; School District v. Stone, 106 U. S. 183.

The relator having partially opened the record is estopped from objecting to the defendants' treating the whole record as opened. This is the practice in courts of equity where a complainant seeks the means of carrying into effect a decree or judgment rendered in another litigation between the same parties, or parties claiming under them when the decree of judgment does not provide the means of execution. In such case the court will look into the original cause of action and ascertain whether the complainant is entitled to have the court

Argument for Defendants in Error.

aid him in carrying into effect the original decree of judgment. The general rule of res judicata has the foregoing qualification. Bigelow on Estoppel, 96, 97 (4th ed.); O'Connell v. MacNamara, 3 Drury & Warren, Sugden, Dec. 411; Hamil ton v. Houghton, 2 Bligh, 169; Bean v. Smith, 2 Mason, 299.

The relator's own bonds showed on their face that they had been issued under and by authority of the charter of the Missouri and Mississippi Railroad Company. They imparted full notice to him of the authority under which they had been issued. If he had followed up the notice he would have ascertained that the county court of Knox County is restricted in levying "a tax to pay the same not to exceed one twentieth of one per cent upon the assessed value of taxable property for each year." State v. Shortridge, 56 Missouri, 126; United States v. Macon County, 99 U. S. 582; State v. Macon County, 68 Missouri, 29.

The defendants, as justices of Knox county court, are officers of the state of Missouri with their powers and duties well defined. Reardon v. St. Louis County, 36 Missouri, 552, 561; St. Louis, &c. v. County Court, 34 Missouri, 546; Steines v. Franklin County, 48 Missouri, 167, 188; Ray County v. Bentley, 49 Missouri, 236; Ralls County Court v. United States, 105 U. S. 733; Anthony v. County of Jasper, 101 U. S. 693.

The county court of Knox County has annually levied a special tax of one twentieth of one per cent as authorized by the charter of the Missouri and Mississippi Railroad Company, which is all it is required or has authority to do. See Supervisors v. United States, 18 Wall. 71.

As soon as the Supreme Court of Missouri decided in 1874 that the county court of Macon County-and the Knox County bonds were the same in form, mutatis mutandis, as the Macon County bonds, and issued under the same charterhad no legal authority to levy any other or greater tax than one twentieth of one per cent, the county court of Knox County ceased to levy any other or greater tax than one twentieth of one per cent. This it has levied every year. every year. Daviess County v. Dickinson, 117 U. S. 657; Merchants' Bank v. Bergen County, 115 U. S. 384; Marsh v. Fulton County, 10 Wall. 676; Norton v. Shelby County, 118 U. S. 425.

Opinion of the Court.

If the defendants were required by mandamus to levy a special tax to pay the relator's judgment, it would be a direct violation of the laws of the state of Missouri.

MR. JUSTICE MATTHEWS, after stating the case as above reported, delivered the opinion of the court.

It is not denied, and has been so decided by the Supreme Court of Missouri, that, under 17 of the General Railroad Law, just cited, the county court of a county was authorized to subscribe to the stock of railroad companies, though created by special charter, provided the requisite assent of the qualified voters was duly obtained. Cape Girardeau, &c., County v. Dennis, 67 Missouri, 438; Chouteau v. Allen, 70 Missouri, 290.

It is also not denied, that, by virtue of § 18 of the General Railroad Law, the special tax therein provided may be levied for the purpose of paying bonds issued in pursuance thereof, and that without limit as to its amount. United States v. The County of Macon, 99 U. S. 582. As the limit of taxation prescribed and permitted under § 13 of the act incorporating the Missouri and Mississippi Railroad Company, to be levied in payment of bonds issued thereunder, was not to exceed onetwentieth of one per cent upon the assessed value of the taxable property for each year, the contention of the respondents. in the Circuit Court was, that they were entitled to show by the recitals in the bonds themselves, in contradiction to those contained in the judgment founded upon them, that they were in fact issued under the charter of the corporation, and not under the general law. On this point, the judgment of the Circuit Court was in their favor, denying to the relator the peremptory writ of mandamus, and this decision is now alleged as error, for which the judgment should be reversed.

The question is, whether the respondents below are estopped in this proceeding by the judgment in favor of the relator against the county of Knox on the bonds, to deny that the bonds were issued in pursuance of § 17, c. 63, of the General Statutes of Missouri of 1866. The averment to that effect in