Opinion of the Court.

which, as we have seen, he is bound to take notice, at all events, and which is now for adjudication in this case."

The case of Scotland County v. Hill, supra, contains nothing in conflict with this, for that determines only the effect of actual notice of the pendency of a suit, the point of the decision being expressed in these words of the Chief Justice:

"The case of Warren County v. Marcy, 97 U. S. 96, decides that purchasers of negotiable securities are not chargeable with constructive notice of the pendency of a suit affecting the title or validity of the securities; but it has never been doubted that those who buy such securities from litigating parties, with actual notice of the suit do so at their peril, and must abide the result the same as the parties from whom they got their title."

But if a judgment in such a proceeding as this cannot be invoked by the district as res judicata in an action brought against it by the holders of bonds thereafter wrongfully issued, can a judgment in favor of the power be invoked by the holder of such bonds as conclusive upon the district upon the ground of res judicata? In order to create estoppel by judg ment must there not be mutuality? We do not mean to intimate that it may not have effect as evidence, like the certificate of an auditor declared by a legislature to be conclusive, but is it not simply as evidence and not as res judicata?

Some light may be thrown on this question by reference to a matter of a somewhat kindred nature. In States which provide for the organization of corporations under general statute different modes of procedure are prescribed. In some States it is sufficient for the parties desiring to incorporate to prepare a charter, acknowledge it before some official, and file it with the secretary of state, or other public officer, and the certificate of such officer is made the evidence of the incorporation. In other States the parties may file a petition in some court, and that court upon presentation thereof examines into the propriety of the incorporation, and if satisfied thereof enters a decree declaring the petitioners duly incorporated, and the copy of such decree is the evidence of the incorporation. Does the difference in procedure between these two

Opinion of Harlan, Gray and Brown, JJ.

cases create any essential difference in character? Is the one executive and the other judicial? Suppose, in the latter case, the statute had provided that either one of the petitioners might appeal from the decree of a lower to the Supreme Court of the State, in order to obtain a final adjudication in favor of the propriety of such incorporation, would this court entertain a suit in error to reverse such adjudication by the highest court of the State? Would it not be held in effect, whatever the form, a mere ex parte case to obtain a judicial opinion, upon which the parties might base further action? It seems to us that this proceeding is after all nothing but one to secure evidence, that in the securing of such evidence no right protected by the Constitution of the United States is invaded, that the State may determine for itself in what way it will secure evidence of the regularity of the proceedings of any of its municipal corporations, and that unless in the course of such proceeding some constitutional right is denied to the individual, this court cannot interfere on the ground that the evidence may thereafter be used in some further action in which there are adversary claims. So on this ground, and not because no Federal question was insisted upon in the state court, the case will be

Dismissed.

MR. JUSTICE HARLAN, MR. JUSTICE GRAY and MR. JUSTICE BROWN are of opinion that, as the judgment of the state court was against a right and privilege specially set up and claimed. by the plaintiff in error under the Constitution of the United States, such judgment, if not modified or reversed, will conclude him, if not all holders of taxable property in the Modesto Irrigation District, in respect of the Federal right and privilege so alleged; consequently, it is the duty of this court to determine, upon its merits, the Federal question so raised by the pleadings and determined by the judgment of the state court. They are also of opinion that the principles announced in Fallbrook Irrigation District v. Bradley, etc., just decided, sustain the conclusions of the state court upon this Federal question and require the affirmance of its judgment.

Statement of the Case.

WISCONSIN CENTRAL RAILROAD COMPANY v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 21. Argued October 15, 16, 1896. — Decided November 16, 1896.

The changes made in the grants to Wisconsin in the act of May 5, 1864, to aid in the construction of railroads from those made to that State by the act of June 3, 1856, rendered necessary some modifications of provisos 1 and 3 of § 1, and of §§ 2, 3 and 4 of the latter act, and they were accordingly reënacted in homologous provisos and sections of the act of 1864; but as the 2d proviso of § 1 and § 5 of the act of 1856 required no modification, they were not reënacted, but the terms and conditions contained therein were carried forward by reference, as explained in detail in the opinion of the court.

Statutes granting privileges or relinquishing rights of the public are to be strictly construed against the grantee.

An intention to surrender the right to demand the carriage of mails over subsidized railroads at reasonable rates, assumed in construing a statute of the United States, is opposed to the established policy of Congress. The terms and conditions imposed on the grant under which the plaintiff in error holds embraced the condition that the mail should be carried at such rates as Congress might fix; and § 13 of the act of July 12, 1876, was applicable.

The Postmaster General, in directing payment of compensation for mail transportation, does not act judicially.

The action of executive officers in matters of account and payment cannot be regarded as a conclusive determination, when brought in question in a court of justice.

The government is not bound by the act of its officers, making an unauthorized payment, under misconstruction of the law.

Parties receiving moneys, illegally paid by a public officer, are liable ex æquo et bono to refund them; and there is nothing in this record to take the case out of the scope of that principle.

The forms of pleading in the Court of Claims do not require the right to recover back moneys so illegally paid to be set up as a counterclaim in an action brought by the party receiving them to recover further sums from the government.

AN act of Congress of March 3, 1873, c. 231, 17 Stat. 556, prescribed the rates of compensation for the transportation of the mails on the basis of the average weight, and by an act

Statement of the Case.

of July 12, 1876, c. 179, 19 Stat. 78, the compensation was directed to be readjusted by the Postmaster General as specified on and after July 1, 1876. Section 13 of this act provided "that railroad companies whose railroad was constructed in whole or in part by a land grant made by Congress on the condition that the mails should be transported over their road at such price as Congress should by law direct shall receive only eighty per centum of the compensation authorized by this act."

By an act approved June 3, 1856, c. 43, 11 Stat. 20, Congress granted to the State of Wisconsin lands to aid in the construction of certain railroads northward and northwestward in said State, ultimately reaching the west end of Lake Superior, the land granted being every alternate odd-numbered section for six sections in width on each side of the roads respectively. Section 5 of this act provided: "That the United States mail shall be transported over said roads, under the direction of the Post Office Department, at such price as Congress may, by law, direct: Provided, That until such price is fixed by law, the Postmaster General shall have the power to determine the same." Some or all of the roads contemplated in this act not having been constructed, Congress, by act of May 5, 1864, c. 80, 13 Stat. 66, again granted lands to the State of Wisconsin for three different general lines of railroads, the line covered by section 3 of the act, being the one in controversy. By this act alternate odd-numbered sections for ten sections in width, instead of six, were granted "upon the same terms and conditions as are contained in the act granting lands to said State to aid in the construction of railroads in said State, approved June 3, 1856."

The two acts in parallel columns, the words in each and not in the other being printed in italics, are as follows:

Act of June 3, 1856.

Act of May 5, 1864.

SEC. 1. [This section grants land to aid in the construction of a railroad from Saint Croix River or Lake to Lake Superior.]

Statement of the Case.