The opinion of the court was delivered by: Waite, C. J.
John P. Ellis, for plaintiff in error.
Thos. C. Fletcher, Geo. D. Reynolds, and J. B. Henderson, for defendant in error.
It is no longer an open question in this court that bonds issued by counties in Missouri during the years 1870 and 1871, in payment of subscriptions to the stock of railroad companies, without a vote of the people, are valid, if the subscription was made under authority granted before the adoption of the constitution of 1865, which did not require such a vote to be taken. In Co. of Ralls v. Douglass, 105 U. S. 728, the cases in the supreme court of the state and in this court bearing on that question are referred to, and our conclusion distinctly stated. We there declined to follow the case of State v. Dalls Co. Ct. 72 Mo. 329, decided in 1878, which substantially overruled a long line of cases in the supreme court of the state on which our earlier decisions were predicated. In Marcy v. Tp. of Oswego, 92 U. S. 637, and Humboldt Tp. v. Long, Id. 642, followed in Wilson v. Salamanca, 99 U. S. 504, it was expressly decided that municipal bonds were not invalid in the hands of a bona fide holder by reason of their having been voted and issued in excess of the statutory limit, if the recitals imported a valid issue. It is an admitted fact in this case that McKenzie, the defendant in error, is a bona fide holder for value of the coupons sued on, and the recitals, which are almost in the exact language of those in Wilson v. Salamanca, supra, imply authority for the issue of the bonds from which they were cut. Consequently, in this case, the excessive issue is no defense.
The records of the county court, which were put in evidence, show affirmatively that all the justices were present and acting at the adjourned and special terms, when the orders were made directing the subscription to the stock, and providing as to the terms of the contract. The last order was made at a regular term. Under these circumstances, it is certainly to be presumed, in the absence of anything to the contrary, that the terms were regularly called and held. It was therefore not error to admit the records in evidence without proof of the order for the adjourned term, or to call for the special term. The fact that the order of the seventh of August, 1871, is referred to in the recitals of the bond as having been made on the 12th, is unimportant. Smith v. Co. of Clark, 54 Mo. 58.
The judgment is affirmed.
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