with notice that they were issued in pursuance of an invalid act and in pursuance of an election under it, but such purchaser had a right to assume from the recitals that the prerequisites of both the valid act and the invalid act had been observed by the common council before the issuance of such bonds. [No. 509.] Submitted May 2, 1895. Decided March 2, 1896. ON A CERTIFICATE from the United States Circuit Court of Appeals, District of Indiana, Seventh Circuit, certifying certain questions to this court for decision in an action brought by William S. Dennett against the city of Evansville to recover the amount of coupons of bonds of said city. Questions an swered part in the negative and part in the affirmative. The facts are stated in the opinion. Mr. George A. Cunningham for plaintiff in error. Messrs. A. W. Hatch, George A. Sanders, and Wm. R. Bowers for defendant in error. Mr. Justice Harlan delivered the opinion of the court: This case is here upon a certificate by the judges of the United States circuit court of appeals for the seventh circuit. It appears from the statement of facts accompanying the questions propounded to this court that, on May 1, 1868, the city of Evans ville issued its bonds, bearing date on that day, to the amount in the aggregate of $300, 000, in payment of its subscription to the stock of the Evansville, Henderson, & Nashville Railroad Company. Each bond was for the sum of $1,000, was made payable to the bearer thirty years after date, with interest on presentation of the coupons attached, and was of the tenor and effect following: $1,000. No. In testimony whereof, the said city of Evansville has hereunto caused to be set its corporate seal, and these presents to be signed by the mayor of said city, and countersigned by the clerk thereof. Dated the 1st of May, 1868. William H. Walker, Mayor. A. M. McGriff, City Clerk. On December 1, 1870, the city also issued bonds amounting in the aggregate to $300,000, in payment of its subscription to the stock of the Evansville, Carmi, & Paducah Railroad Company, each bond being dated December 1, 1870, for the sum of $1,000, payable to the Evansville, Carmi, & Paducah Railroad Company or bearer, December 1, 1895, with interest on presentation of the coupons attached. Each of those bonds was in the following form: Total amount authorized, $300,000. $1,000. By virtue of an act of the general assembly of the state of Indiana, entitled "An Act Granting to the Citizens of the Town of Evansville, in the County of Vanderberg, a City Charter," approved January 27, 1847; and by virtue of an act of the general assembly of the state of Indiana, amendatory of said act, approved March 11, 1867, conferring upon the city council of said city power to take stock in any company authorized for the purpose of making a road of any kind leading to said city; and by virtue of the resolution of said city council of said city, passed October 4, 1869, ordering an election of the qualified voters of said city upon the question of subscribing $300,000 to the capital stock of the Evansville, Carmi, & Paducah Railroad *Com- [437 pany, and said election, held on the 13th day of November, 1868, resulting in a legal majority in favor of such subscription, and by virtue of a resolution of said city council, passed May 23, 1870, ordering an issue of the bonds of the city of Evansville (of which this is a part) to an amount not to exceed $300,000, bearing interest at the rate of 7 per cent per annum, for the purpose of paying the subThe city of Evansville, in the state of Indiscription as authorized above. The said city ana, promises to pay to the bearer thirty (30) years after date the sum of $1,000, at the office of the Farmers' Loan & Trust Company, of New York, with interest thereon at the rate of 7 per cent per annum, payable semiannually at the office of the Farmers' Loan & Trust Company. in the city of New York, on the first day of November and the first day of May of each year, on presentation and delivery of the interest coupons hereto attached. This being one of a series of three hundred bonds of like tenor and date issued by the city of Evansville, in payment of a subscription to the Evansville, Henderson, & Nashville Rail road Company, made in pursuance of an act of the legislature of the state of Indiana and 436] *ordinances of the city council of said -city, passed in pursuance thereof. The city of Evansville hereby waives all benefit from valuation or appraisement laws. United States of America. of Evansville hereby acknowledges to owe and promises to pay to the Evansville, Carmi, & Paducah Railroad Company, or bearer, $1,000, without relief from valuation or appraisement laws, payable on the 1st day of December, A. D. 1895, at the Farmers' Loan & Trust Company, in the city of New York, with interest from the date thereof, at the rate of 7 per cent per annum, said interest payable semi annually on the first day of June and the first day of December on presentation of the proper coupons for the same at said bank. The faith and credit and real estate revenues and all other resources of the said city of Evansville are hereby solemnly and irrevocably pledged for the payment of the principal and interest of this bond. In testimony whereof, the mayor of the city of Evansville has hereunto set his hand and affixed the corporate seal of the said city, and the city clerk of said city has countersigned these presents this 1st day of December, 1870. Wm. Baker, Mayor. Wm. Helder, City Clerk. The charter of Evansville, approved January 27, 1847, in the 40th clause of § 30 thereof, gave the city power "to take stock in any chartered company for making roads to said city, or for watering said city, and in any company authorized or empowered by the commissioners of Vanderburg county to build a bridge on any road leading to said city; and to establish, maintain, and regulate ferries across the Ohio river from the public wharves of said city: Provided, That no stock shall be subscribed or taken by the common council in any such company, unless it be on the petition of two thirds of the residents of said city, who are free 438] holders of the city, distinctly setting forth the company in which stock is to be taken, and the number and amount of shares to be subscribed: And provided, also, That in all cases where such stock is taken the common council shall have power to borrow money and levy and collect taxes on all real estate (either inclusive or exclusive of improvements, at their discretion) for the payment of said stock." Ind. Laws (Local) 1846-'47, chap. 1, p 14. This clause of the original charter of Evansville was, in form, amended by the act of the legislature of the state of Indiana, approved December 21, 1865, entitled "An Act to Amend the 40th Clause of § 30 of an Act Entitled 'An Act Granting to the Citizens of the Town of Evansville, in the County of Vanderburg, a City Charter,' approved January 27, 1847, and declaratory of the meaning of the 2d section of the same act." Ind. Laws (Called Session) 1865, pp. 76, 83. The certificate before us states that "under the decisions of the supreme court of Indiana, this act was repugnant to the Constitution and invalid, in that it did not set out the entire section as amended." It is certified to us that under the decision of the supreme court of the state of Indiana this latter act was invalid because amendatory of a prior invalid act. The bonds in question, of both series, were in fact issued in attempted compliance with the act of March 11, 1867, referred to in the recitals in the bonds issued to the Evansville, Carmi, & Paducah Railroad Company. The ordinances of the city council of the city of Evansville authorizing the issue of both series of bonds disclose that they were issued pursuant to an election by the legal voters of the city of Evansville, but do not recite that any petition of resident freeholders of the city was presented to the common council, as required by the charter; and no such petition was, in fact, in either case made or presented to the common council of the city of Evansville. The defendant in error, William S. Dennett, purchased bonds of both issues, before maturity and for value, and is a bona fide holder thereof. This suit is brought upon matured coupons of both series of bonds. The questions propounded are these: 1. Does the recital in the series of bonds issued in payment of subscription to the Evansville, Henderson, & Nashville Railroad Company, that they were issued "in pursuance of an act of the legislature of the state of Indiana and ordinances of the city council of said city, passed in pursuance thereof" put a purchaser upon inquiry as to the terms of the ordinances under which the bonds were issued. 2. Does the recital in the series of bonds issued to the Evansville, Carmi, & Paducah Railroad Company, that they were issued "by virtue of a resolution of said city council passed May 23, 1870," put a purchaser upon. inquiry as to the terms of that resolution and charge him with knowledge of its terms? *3. Do the recitals in the bonds issued [440 to the Evansville. Carmi, & Paducah Railroad Company, as against a bona fide purchaser for value of such bonds, estop the city of Evansville from asserting that such bonds were not issued for stock subscribed, upon a petition of two thirds of the resident freeholders of the city, distinctly setting forth the company in which stock was to be taken, and the number and amount of shares to be subscribed? 4. Under the recitals in the bonds issued tothe Evansville, Carmi, & Paducah Railroad Company was a bona fide purchaser for valueput upon inquiry to ascertain whether a proper petition of two thirds of the residents of Evansville, freeholders of that city, had been presented to the common council, before that body had subscribed for stock in the said railroad company? In 1867 the legislature of Indiana attempted to amend the act of 1865, above referred to, by an act approved March 11, 1867, entitled "An Act to Amend the 1st Section of an Act Entitled 'An Act to Amend the 40th Clause of 30 of an Act Entitled "An Act Granting to the Citizens of the Town of Evansville, in the County of Vanderburg, a City Charter,' Approved January 27, 1847, and Declaratory of the Meaning of the 2d Section of the Same,' approved December 21, 1865, so as to authorize the common council of the city of Evans ville to subscribe for and take stock in the Evans 439] ville, *Henderson, & Nashville Railroad Company, or any other company or corporation organized under and by virtue of the laws of the commonwealth of Kentucky for 5. Was a bona fide purchaser for value of the purpose of constructing a railroad leading the bonds issued to the Evansville, Carmi, & from Nashville, in the state of Tennessee, to a | Paducah Railroad Company charged by the point on the Ohio river at or near Evansville, recitals in said bonds with notice that they Indiana." Ind. Laws 1867, chap. 52, p. 121. were issued in pursuance of an invalid act, This act authorized subscriptions for stock in the Evansville, Henderson, & Nashville Railroad Company, or other railroad companies, by the city of Evansville, when a majority of the qualified voters of the city who were also taxpayers should vote therefor. and in pursuance of an election under it, or had such a purchaser a right to assume, from the recital, that the prerequisites of both the valid act and the invalid act had been observed by the common council before the issuance of such bonds? Such is the case made by the statement of facts. By that statement we are informed that the act of the legislature of Indiana of December 21, 1865, purporting to amend the 40th clause of § 30 of the charter of Evansville granted in 1847, as well as the act of March 11, 1867, amendatory of the above act of December 21, 1865, were adjudged by the supreme court of Indiana to be unconstitutional and invalid. And, upon that basis, this court is asked to answer the questions embodied in the certificate from the judges of the circuit court of appeals. Under this presentation of the case, we put aside the acts of 1865 and 1867 as giving no support to the rights of the plaintiff, and look | alone to the charter of 1847. that the bonds were issued in disregard of the statute, and therefore did not impose any legal obligation upon it. Buchanan v. Litchfield, 102 U. S. 278 [26: 138]: Independent School Dist. v. Stone, 106 U. S. 183, 187 [27: 90, 91]. But the bonds issued on account of subscrip tion to the stock of the Evansville, Henderson, & Nashville Railroad Company recite that the subscription was made in pursuance of an act of the legislature and ordinances of the city council passed in pursuance thereof." This imports, not only compliance with the act of the legislature, but that the ordinances of the city council were in conformity with the statute. It is as if the city had declared, in terms, that all had been done that was required to be done in order that the power given might be exercised. The bonds issued to the Evansville, Carmi, & Paducah Railroad Company recite that they were issued " by virtue of" the city's charter of January 27, 1847, and that recital imports compliance with the provisions of the charter. The additional recitals that the bonds were issued by virtue of the act of March 11, 1867, as well as by virtue of a resolution of the city council, ordering an election of the qualified voters of the city, which resulted in a legal majority in favor of such subscription, and of a resolution ordering the issuing of bonds, did It cannot be doubted that the power given by the charter of 1847 "to take stock in any 441] chartered company for making roads to said city, "authorized the city to subscribe to the capital stock of the Evansville, Henderson, & Nashville Railroad Company, as well as the Evansville, Carmi, & Paducah Railroad Company. In Aurora v. West, 9 Ind. 74, 85, one of the questions was whether the authority given to the city council of Aurora, in the state of Indiana, "to take stock in any chartered company for making roads to said city," was authority to subscribe to the stock of a railroad company. The supreme court of In-not, as between the city and a bona fide purdiana said: Here, the power is expressly granted, and the question is merely whether the road in which the stock was subscribed is one contemplated by the charter. We think, also, that a company chartered to build a railroad is chartered to build a road. We think a railroad is a road as properly as a turnpike road or a plank road is a road; and one of these kinds was contemplated by the charter, and not common public highways, as the latter are not constructed by chartered companies, while the former are, and the stock is to be taken by the city in a chartered company. A railroad would accommodate the people of the city more than a plank or a turnpike road, and the stock would be of more value." chaser for value, prevent the latter from assuming the truth of the recital that the bonds were issued by virtue of, that is in compliance with, the city's charter. In Independent School Dist. v. Stone, above cited, the court said: "Numerous cases have been determined in this court, in which we have said that where a statute confers power upon a municipal corporation, upon the performance of certain precedent conditions, to execute bonds in aid of the construction of a railroad, or for other like purposes, and im poses upon certain officers-invested with au thority to determine whether such conditions. have been performed-the responsibility of issuing them when such conditions have been It is true that the city charter provided that complied with, recitals, by such officers, [443 "no stock shall be subscribed or taken by the that the bends have been issued in pursuance common council in such company, unless it of,' or 'in conformity with,' or 'by virtue of,' or be on the petition of two thirds of the resi-by authority of' the statute, have been held dents of said city, who are freeholders of the in favor of bona fide purchasers for value to. city, distinctly setting forth the company in import full compliance with the statute, and which stock is to be taken, and the number to preclude inquiry as to whether the preceand amount of shares to be subscribed." But dent conditions had been performed before. these were only conditions which the statute the bonds were issued." Coloma v. Eaves, 92: required to be performed or met before the U. S. 484 [23: 579]; Douglas County Comrs. v. power given was exercised. That there was Bolles, 94 U. S. 104 [24: 46]; Mercer County v. legislative authority to subscribe to the stock Hackett, 68 U. S. 1 Wall. 83 [17: 548]; Ander of these companies cannot be questioned, al-son County Comrs. v. Beal, 113 U. S. 227, 238, though the statute declared that the power should not be exercised except under the circumstances stated in the statute. Was a bona fide purchaser of bonds issued in payment of a subscription of stock-the power to subscribe being clearly given-bound to know that the conditions precedent to the exercise of the power were not performed? If the bonds had not contained any recitals im442] porting a performance of such *conditions before the power to subscribe was exercised, then it would have been open to the city to show, even as against a bona fide purchaser, 239 [28: 966, 970], and authorities there cited; Cairo v. Zane, 149 U. S. 122 [27: 673]. The charter of the city of Evansville gave authority to subscribe to the stock of these. railroad corporations, and as held by the su preme court of Indiana in Evansville, I. & C. S. L. R. Co. v. Evansville, 15 Ind. 395, 412, the express power given to borrow money necessarily implied "the power to determine. the time of payment, and also the power to issue bonds or other evidences of indebtedness." " As, therefore, the recitals in the bonds im The case before us cannot be distinguished from the one just cited. port compliance with the city's charter, pur-¡ passed September 2, 1852. This concludes chasers for value having no notice of the non- the city as to any irregularities that may have performance of the conditions precedent were existed in carrying into execution the power not bound to go behind the statute conferring granted to *subscribe the stock and issue[445 the power to subscribe, and to ascertain, by the bonds, as has been repeatedly held by this an examination of the ordinances and records court. Our conclusion upon the whole case of the city council, whether those conditions is that full power existed in the defendants to had in fact been performed. With such re-issue the bonds, and that the plaintiffs are encitals before them, they had the right to as titled to recover the interest coupons in quessume that the circumstances existed which tion. Even if the case bad been doubtful, inauthorized the city to exercise the authority asmuch as the city authorities have given this given by the legislature. The charter of 1847 construction to the charter, and bonds have contemplated a petition of two thirds of the been issued and in the hands of bona fide purresident freeholders of the city. The act of chasers for value, we should have felt bound 1867 provided for an election by the qualified to acquiesce in it." Voters, who were also taxpayers. Notwithstanding the provisions of the charter of 1847 the city council before subscribing for the stock might well have ascertained what were the wishes of taxpayers, who were also quali fied voters. So far as the recitals in the bonds are concerned, the purchaser of bonds might properly have assumed that both methods were pursued. Athough, in strict law, he was chargeable with knowledge that the act of 444]* 1867 was invalid, and consequently that an election held under it could not itself author ize a subscription of stock by the city, he was entitled to stand upon the validity of the city charter, and to act upon the assurance, given by the recitals in the bonds, that the provisions of that charter had been respected, and therefore that the subscription of stock had been preceded by a petition to the city council of two thirds of the resident freeholders of the city. The present case comes directly within Van Hostrup v. Madison City, 68 U. S. 1 Wall. 291, 297 [17: 538, 539]. The city of Madison, Indiana, was authorized by its charter "to take stock in any chartered company for making a road or roads to the said city, provided, that no stock shall be subscribed unless it be on petition of two thirds of the citizens who are freeholders," etc. Mr. Justice Nelson, delivering the unanimous judgment of this court, said: "It is supposed that the authority to subscribe is tied down to a chartered road, the line of which comes within the limits of the city; and that the words are to be taken in the most liberal and restrictive sense. But this, we think, would be not only a very narrow and strained construction of the terms of the clause, but would defeat the manifest object and pur pose of it. The power was sought and granted with the obvious idea of enabling the city to promote its commercial and business interests by affording a steady and convenient access to it from different parts of the interior of the state, and thus to compete with other cities on the Ohio river and in the interior which were or might be in the enjoyment of railroad facilities. Touching another issue in that case and a similar issue is presented in the present litigation-the court said: "Another objection taken is, that the proviso requiring a petition of two thirds of the citizens who were freeholders of the city was not complied with. As we have seen, the bonds signed by the mayor and clerk of the city recite on the face of them that they were issued by virtue of an ordinance of the common council of the city, It may be added that the questions here presented were carefully examined by Judge Woods in the case of Moulton v. Evansvüle, 25 Fed. Rep. 382, 388, where will be found a full review of the adjudged cases. That was an action to recover the amount of coupons of bonds of the same class as those here involved. The conclusion there reached was that the purchaser of the bonds had a right to rely on the recital as showing that a proper petition of freeholders was presented to the council before the subscription was ordered. The court said: "The purchaser, it is clear, was bound to know that the act of 1867, and the election ordered and held in compliance with it, were void, and that the law of 1847 required a petition of freeholders as a condition precedent to the right of the common council to make such stock subscriptions; but while bound by legal construction to know these things for himself, he, for the same reason, had a right to presume that the common council and officials of the city who ordered and made the bonds had the same knowledge; that they ordered and held the election as matter of precaution merely, and without the omission of any requirement of the act of 1847, as they must have intended to certify, if they acted honestly, as they are presumed to have acted intelligently, in ordering the bonds issued." It is contended that the defense is sustained by Barnett v. Denison, 145 U. S. 135, 139 [36: 652, 653]. That case has no application to the issues here presented. The only point there decided was that the requirement of its charter, that all bonds issued by the city [446 of Denison "shall specify for what purpose they were issued," was not satisfied by a bond that purported on its face to be issued by virtue of an ordinance, the date of which was given, but not its title or contents. The conclusion we have reached upon legal grounds, and in accordance with our former decisions, is the more satisfactory, because of the long time which elapsed before any ques tion was raised by the city as to the validity of the bonds. The city having authority, under some circumstances, to put these bonds upon the market, and having issued them under the corporate seal of the city, and under the attestation of its highest officer, certifying that they were issued in payment of a subscription of stock made in pursuance of the city's charter, the principles of justice demand that the bonds, in the hands of bona fide holders for value, should be met according to their terms, unless some clear, well-settled rule of law stands in the way. No such obstacle exists. The court ansicers the first, second, and fourth questions in the negative, and the third in the affirmative. Its answer is in the negative to the first clause, and in the affirmative to the second clause, of the fifth question. DAN K. SWEARINGEN, Piff. in Err., v. UNITED STATES. (See S. C. Reporter's ed. 446-451.) Wrongful use of mails. The words "obscene," "lewd," and "lascivious," as used in U. S. Rev. Stat. § 3893, respecting the wrongful use of the mails, signify that form of immorality which has relation to sexual impurity, and have the same meaning given them at common law in prosecutions for obscene libel, and therefore do not extend to language, although it may be exceedingly coarse and vulgar and plainly libelous, if it has not a lewd, lascivious, and obscene tendency calculated to corrupt and debauch the mind and morals. [No. 567.] was The indictment contained three counts, differing only in the names of the persons to whom copies of the newspapers *were ad- [448 dressed. In each count the article charged to be of an obscene, lewd, and lascivious nature. The defendant moved to quash the indictment because the same did not state or charge a public offense, and because there were several offenses improperly joined in each count. This motion was overruled. The defendant pleaded not guilty; a trial was had; and a verdict of guilty was rendered. Thereupon the defendant filed a motion in arrest of judgment and for a new trial. These motions were overruled, and the defendant was sentenced to be imprisoned at hard labor in the penitentiary for the period of one year, to pay a fine of $50, and to pay the cost of the prosecution. Thereupon a writ of error was sued out to this court. Mr. J. D. McCleverty for plaintiff in error. Mr. Edward B. Whitney, Assistant Attorney General, for defendant in error. Mr. Justice Shiras delivered the opinion of the court: The record discloses that the defendant be Submitted October 21, 1895. Decided March 9, low was, in the month of September, 1894, the 1896. N_ERROR to the District Court of the review a judgment convicting Dan K. Swearingen under the provisions of U. S. Rev. Stat. §3893, for depositing in the postoffice, to be conveyed by mail and delivered to certain persons, a certain publication or newspaper containing a certain article of an obscene, lewd, and lascivious character. Reversed, with in structions to award a new trial. Statement by Mr. Justice Shiras: In the district court of the United States for 447]the district *of Kansas, November term, 1895, Dan K. Swearingen was indicted, under the provisions of U. S. Rev. Stat. § 3893, for depositing in the postoffice of the United States at Burlington, Kansas, to be conveyed by mail and delivered to certain named persons, a certain publication or newspaper, entitled "The Burlington Courier," dated September 21, 1894, and containing a certain article +charged to be of an obscene, lewd, and lascivious character, and nonmailable matter. The article was in the following language: About the meanest and most universally hated and detested thing in human shape that ever cursed this community is the red-headed mental and physical bastard that flings filth under another man's name down on Neosho street. He has slandered and maligned every Populist in the state, from the governor down to the humblest voter. This black hearted coward is known to every decent man, woman, and child in the community as a liar, perjurer, and slanderer, who would sell a mother's honor with less hesitancy and for much less silver than Judas betrayed the Saviour, and who would pimp and fatten on a sister's shame with as much unction as a buzzard gluts in carrion. He is a contemptible scoundrel and political blackleg of the lowest cut. He is pretending to serve Democracy and is at the same time in the pay of the Republican party. He has been known as the companion of negro strumpets and has reveled in lowest debauches. He has criminally libeled and slandered such men as i and dozens of others whom we might name, editor and publisher of a newspaper called "The Burlington Courier," and was indicted for having mailed several copies of the paper, statement, addressed to different persons. The bill of exceptions shows that, at the trial, the government offered the article in question in evidence, and that the defendant objected for the reasons that no public offense was stated in the indictment, that there was a misjoinder of offenses, and that the words of said newspaper article did not constitute unmailable matter. These objections were overruled, and an exception was allowed. The article was then read to the jury, and evidence was offered and received tending to show that on September 21. 1894, copies of a newspaper containing the said article were mailed by employees of the defendant, addressed severally to Riggs, Cowgill, and *Lane, who were regular [449 subscribers to the paper, and whose names were on the mail list. The defendant, on the ground of its insufficiency, moved to strike out the evidence as to the mailing of any paper to Lane or Cowgill. This motion was overruled, as was likewise a motion to compel the oldest and most respected citizens of the county. His soul, if he has a soul, is blacker than the blackest shades of hell. He is the embodiment of treachery, cowardice, and dishonor, and hasn't the physical nor moral courage to deny it. He stands to-day hated, despised, and detested as all that is low, mean, debased, and despicable. We propose to have done with the knave. We have already devoted too much valuable space to him. Time and again has he been proven a wilful, malicious, and cowardly liar, and instead of subsiding he has redoubled his lies. He lies faster than ten men could refute; and for what? A little Republican slush-money. He is lower, meaner, filthier, rottener than the rottenest strumpet that prowls the streets by night. Again we say, we are done with him. The sooner Populists and Populist newspapers snub him, quit him cold, ignore him entirely, the sooner will he cease to be thought of only as a pimp that any man can buy for $1 or less. He is too little and rotten to merit the notice of men. We have been wrong in noticing the poltroon at all, and henceforth are done." 765 |