it discloses. State v. Barrett, 27 Kan. 213, 218, and cases cited; State v. Cassidy, 22 Minn. 312, 322, 326, and cases cited.

The act before us is fully protected by this rule. Its subject was the refunding of the indebtedness of Oswego township, and the provisions fixing the terms on which its indebtedness should be refunded, naming the persons authorized to refund it, authorizing the issuance of new bonds and coupons, and providing for the levy of taxes to pay them, and enforcing by proper provisions the performance of the duties devolved upon the several agents selected, were all germane to this subject, naturally suggested by the title, and proper, if not necessary, to the accomplishment of the purpose that title disclosed. The object of the constitutional provision is to secure separate consideration of each subject by the legislature, and to this end this provision has been held to make void legislation on subjects foreign to that expressed in the title to a bill. But there is no subject mentioned in this act that is foreign to that expressed in its title, and it does not come within the terms or the purpose of the constitutional inhibition.

We have now considered all the provisions of the constitution of Kansas that it is claimed expressly prohibited the passage of this

It is, however, argued that the act is void (1) because the appointment of the commissioners was an executive, and not a legislative, function; (2) because it is claimed that the commissioners were township officers, and that the constitution provides for the election of such officers; (3) because these commissioners were to determine the amount of the indebtedness of the township, and that is claimed to be a judicial function; and (4) because the enactment of this special law was not within the scope of legislative authority, and was a usurpation of the power of local self-government that is claimed to have been reserved to the electors of this township by the provision of section 20 of the bill of rights of the constitution of Kansas which declares that "all powers not herein delegated remain with the people."

The decisions of the supreme court of Kansas to which we have already adverted, and which must control this case, render extended notice of these objections unnecessary. There is nothing in the constitution of Kansas which declares the appointment of agents of the state, whose positions are created and duties prescribed by the legislature, to be an executive, rather than a legislative, power. Primarily, the appointment of such agents pertains no more to the functions of the executive than to that of the legislative department of the government, and it was competent for the people of the state to vest it in either the one or the other. Section 1, art. 15, of the Kansas constitution, provides that:

"All officers, whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law."

The right to prescribe the method of appointment thus vested in the legislature necessarily carried with it the right to authorize that appointment to be made by the legislature itself. Moreover, these commissioners were named in the body of the act in question. v.59F.no.1-5

The governor-the chief executive officer of the state had the veto power, under the constitution of the state, and he approved this law. They were therefore appointed by the exercise of both the legislative and the executive power of the state. These commissioners were not township officers, within the meaning of the constitution of Kansas, and hence they were not elective. They had no duties to discharge in the general management of the business of the township, or in the management of any general department of that business. They were mere fiscal agents, charged with the simple duties of refunding the bonded indebtedness of the township at not more than 30 per cent. of its face, and investing the sinking fund to be raised to pay the bonds. A banker who is appointed to pay the bonds of a town or city, or to exchange new bonds or notes for old ones, is not an officer of the town or of the city. He is a mere financial agent. And these commissioners took no higher rank. Nor were their duties judicial. The indebtedness of this township was evidenced by its bonds. The duty of

the commissioners in determining their amount was of the same character as that of the banker, who determines before payment the amount of the bonds of a city which he has been directed to pay when presented at his counter. This was not the discharge of a judicial function.

But a single question remains: Was the right to determine whether or not this township would reduce its indebtedness 70 per cent., and issue new bonds for the remaining 30 per cent., and, if so, the right to determine the manner of issuing them, reserved by the constitution of Kansas to the people of this township, or was it vested in the legislature of Kansas? Undoubtedly, the legislative power of that state is not omnipotent. It is limited by the federal constitution, laws, and treaties; by the express restrictions of the constitution of the state; by the implied restrictions evidenced by certain provisions of that instrument, such as the grant of executive and judicial power to other departments of the government, which necessarily prohibits the exercise of executive and judicial functions by the legislature; and by its nature and purpose. A flagrant and outrageous abuse of its power, such as the attempted passage of an act authorizing the destruction of the life or property of the citizen without cause, or an act authorizing the commission of those very offenses against which it is the great purpose of every good government to protect its people, could not be sustained as a valid exercise of legislative power, even in the absence of any express prohibition in the constitution. There is, however, nothing of this character in the law we are considering; and, subject to the limitations we have suggested, the legislative power of a state is supreme, within the scope of its authority. power to levy taxes upon any of the property in the state, to build schoolhouses, roads, courthouses, jails, and to make other public improvements at the expense of the people; the power to borrow money, to incur indebtedness, to make contracts, to issue bonds on behalf of the people of the state, or on behalf of any political subdivision of the state,-all these are essential legislative powers, and

The

depend for their exercise upon the will of the representatives of the people assembled in the legislature. If these and like powers are exercised in various political subdivisions of the state by school districts, road districts, townships, counties, villages, and cities, the latter are but the agents and instrumentalities of the legislature for the more convenient administration of the local government of the people within its jurisdiction. All the governmental powers and privileges these instrumentalities enjoy are derived from the legislature through the general or special laws that recognize their existence and limit their powers. It goes without saying that the power which established these agencies can destroy them, can revoke the whole or a part of the powers it delegated to them, and can delegate these powers, or any portion of them, to other agents, unless restrained by some of the limitations we have referred to. Meriwether v. Garrett, 102 U. S. 472, 511; U. S. v. Baltimore & O. R. Co., 17 Wall. 322, 329; State v. Hunter, 38 Kan. 578, 582, 17 Pac. 177; Philadelphia v. Fox, 64 Pa. St. 169, 180; People v. Draper, 15 N. Y. 533, 545; Mayor, etc., of Baltimore v. State, 15 Md. 376; People v. Langdon, 8 Cal. 1, 16; Ohio v. Covington, 29 Ohio St. 102; Jensen v. Board, 47 Wis. 298, 309, 310, 2 N. W. 320; Daley v. City of St. Paul, 7 Minn. 390, (Gil. 311;) Bridges v. Shallcross, 6 W. Va. 562; Biggs v. McBride, (Or.) 21 Pac. 878, 881; People v. Freeman, (Cal.) 22 Pac. 173; State v. George, (Or.) 29 Pac. 356; President, etc., of Revenue v. State, 45 Ala. 399.

Without a delegation of the legislative power of the state, the township of Oswego had no authority to issue the original bonds, or to refund them by the issuance of new bonds. In all that that township did or could do in this regard, it was but the instrumentality or agency through which the legislature was exercising its power of administering the local government of the township. It was in the discretion of the legislature to determine by what agents it would exercise that power. It might have delegated the power to audit and destroy the old bonds, and to issue the new ones, to the trustee or to the clerk of the township, but it had the like right and the same power, in its discretion, to delegate the performance of this duty to the commissioners named in the act; and it is not the province of the courts to review or restrict the exercise of that discretion, in a case clearly within the scope of legislative authority.

The judgment below is reversed, with costs, and the cause remanded, with directions for further proceedings in accordance with law.

FOLSOM v. TOWNSHIP OF NINETY-SIX.

(Circuit Court, D. South Carolina. December 7, 1893.J

1. FEDERAL COURTS-FOLLOWING STATE DECISIONS-TOWNSHIP BONDS. When the only question in a suit on coupons of township bonds is the existence of authority to issue them under the state statutes

and constitution, a prior decision thereof by the state supreme court, in a suit by a taxpayer to recover taxes levied for interest on the bonds, is binding on the federal courts.

2. MUNICIPAL BONDS-VALIDITY.

Legislative recognition of the validity of township bonds can give them no binding force when issued under an unconstitutional statute.

At Law. Action by George W. Folsom against the township of Ninety-Six, Abbeville county, S. C., on certain bond coupons. On demurrer to complaint and amended complaint. Demurrer sustained, and said pleadings dismissed.

Shields & Shields and Haynsworth & Parker, for plaintiff.
E. B. Gary, for defendant.

SIMONTON, District Judge. The issue made by the demurrer to the complaint and amended complaint raises the question of the validity of the bonds, the coupons of which constitute the cause of action. The bonds were issued under authority of the act of assembly approved 24th December, 1885, entitled "An act to annul the charter of the Greenville & Port Royal Railroad Company. The township of Ninety-Six issued its bonds shortly after the passage of the act, and they were put on the market. On the 123d February, 1887, à taxpayer of the township began his suit against the county treasurer for repayment of the tax paid by him under a levy for the interest on these bonds. This is the course provided in section 268 of the general statutes of South Carolina whenever a tax has been illegally levied. The taxpayer pays the tax, and brings his suit for the amount of it. This was the earliest moment at which a taxpayer could pursue this course. The case went into the supreme court of South Carolina, its court of last resort, and is reported as Floyd v. Perrin, 30 S. C. 1, 8 S. E. 14. After a full hearing and long deliberation, the supreme court held that the issue of these bonds was not warranted by the eighth section of the ninth article of the constitution of the state; that the legislature could not authorize their issue; and that they were null and void. This construction of the constitution and statute of the state by its court of last resort is binding on this court. "We are bound to presume that when the question arose in the state court it was thoroughly considered by that tribunal, and that the decision rendered embodied its deliberate judgment." Cross v. Allen, 141 U. S. 539, 12 Sup. Ct. 67. Norton v. Shelby Co., 118 U. S. 441, 6 Sup. Ct. 1121, controls this case. We are not discussing a question of irregularity in the issue of the bonds, or the existence of facts charged to the notice of the plaintiff, or any principle of the law merchant or of general law. It is a question of original authority in the making of these bonds. Did the county commissioners possess the lawful authority, in any shape or form, to make or to issue them? It goes to the very root of the matter. The supreme court of South Carolina say that they have not-never had any such authority. This court follows the decisions of the highest court of a state in construing the constitution

of a state, unless they conflict with or impair the efficacy of the federal constitution, or of a federal statute, or of a rule of commercial or general law. No principle of the federal constitution is invaded. The decision does not impair the validity of a contract, for there was no contract. No rule of commercial law is impaired, for the first principle of the law merchant is that a principal is not responsible for the acts of one done without authority. No principle of general law is impaired, for it is universal law that a contract void ab initio, because unlawful, cannot be ratified or confirmed. It must be kept in mind that the question here is not as to the construction of the bonds, nor as to the effect of recitals therein, nor as to the right of bona fide holders of them, they being negotiable instruments. The only question is, does the constitution of South Carolina authorize townships to invest in stock exchangeable for these bonds? The answer to this question turns wholly upon the construction to be given to this constitution, and that construction has been settled in the case of Floyd v. Perrin, supra,-a construction made upon bonds of the same issue with these, indeed upon all the bonds of this issue, in a case between the taxpayer and the tax collector.

But it is said that the legislature, in the act of assembly of 1887, (19 Stat. 921,) has recognized these bonds. This may be true; but the distinction is this: When bonds of a municipal corporation can be issued if the legislature consent and authorize it, and any municipal corporation, without such consent and authority, have issued bonds, the legislature, having the power to permit it, can, by subsequent action, ratify and confirm the act validating the bonds; in other words, can give its permission nunc pro tunc. But where, as in this case, the courts decide that the legislature could not give permission to these small municipal corporations to issue bonds like these, it can by no act of recognition, ratification, or validation give life or vitality to them. This is the first decision of this supreme court on this question. In order to prevent any misconception of the scope of this opinion, it must be added that these bonds do not come within the operation of the act of assembly of 22d December, 1888,-"An act to provide for the payment of township bonds issued in aid of railroads in this state,"discussed and explained in State v. Whitesides, 30 S. C. 581, 9 S. E. 661, and State v. Neely, 30 S. C. 591, 9 S. E. 664. The condition precedent of that act is that the railroad must have been completed through the township, and accepted by the railroad commissioners. There is no averment in the complaint that this condition has been fulfilled, and it is admitted in argument that it has not been fulfilled.

Let an order be entered sustaining the demurrer, and dismissing the complaint.