sued on, and if he were an assignee or subsequent holder thereof he was not entitled to maintain the action, because the bonds were payable to bearer, and were not made by a corporation.

2. That the act of the general assembly, under and by virtue of which the bonds were issued, was in violation of the Constitution of the state, and therefore the bonds were invalid.

3. That the act contravened the provisions of the Constitution of the United States, and therefore the bonds were invalid.

appropriation the trustees, on or about Sep- | plaintiff was the original holder of the bonds tember 29th, 1894, duly executed and issued, in proper form and in accordance with the terms and provisions of the act, twenty-five bonds of Columbia township of $500 each, five payable respectively in one, two, three, four, and five years each, and one for $432 payable one year from date, all of the above date, and numbered consecutively from 1 to 26 inclusive, and all payable to the order of the bearer, at the office of the treasurer of the county, and bearing interest represented by coupons attached, at the rate of 6 per cent per annum, payable semi-annually, on the 29th days of March and September of each year; that on or about the September, It appears from the opinion of the circuit 1894, the bonds were sold by the township court that the first and second of these to a bona fide purchaser and the highest bid-points were ruled in favor of the plaintiff. der for $13,325 and accrued interest; that But the third point was decided for the de on or about September 29th, 1895, the trus- fendant the court being of opinion that actees paid bonds Nos. 1, 2, 3, 4, and 5, then cording to the principles laid down in Nordue, each for $500, and No. 26 for $432, and wood v. Baker, 172 U. S. 269, 43 L. ed. 443, the interest coupons payable on the date last 19 Sup. Ct. Rep. 187, the law under which named on the entire issue of the twenty-six the bonds sued on were issued was repug bonds; and that on March 29th, 1896, the nant to that clause of the 14th Amendment trustees paid the interest coupons, due on of the Constitution of the United States forthat day, on the twenty bonds remaining un- bidding a state to deprive any person of proppaid, including bonds numbered 6, 7, 8, 9, erty without due process of law. In dispos and 10. ing of the third point the court referred to the propositions made in its support as having been "claimed" by the township.

The petition set out each of the bonds last named, and alleged that the plaintiff was the bona fide owner and holder for value of each I. The first question to be considered is of them, and had demanded payment of each one of the jurisdiction of this court to proin accordance with its terms, but that pay-ceed upon writ of error directly to the cir ment was refused. cuit court.

The bonds dated September 29th, 1894, were signed by the trustees and attested by the seal of the township, and were alike in form. Each recited that it was "one of a series of twenty-five bonds of $500 each, issued by virtue of an act of the general assembly of the state of Ohio, passed April 27th, 1893, authorizing the trustees of Columbia township to levy an assessment on the real estate abutting on the Williams avenue between Duck Creek road and Madison pike, and one bond for $432 for the payment of $12,932, for widening and extending said avenue;" and that "by virtue of said act, the trustees of Columbia township hereby acknowledge said township indebted to the bearer in the sum of $500, which sum they, as trustees, and for their successors in of fice, promise to pay to the bearer hereof, upon the surrender of this bond, at the office of the treasurer of said township, on the 29th day of September, 1896, and also interest thereon at the rate of 6 per cent per annum, payable semi-annually, on the 29th days of March and September of each year, during the continuance of this loan, on presentation to the township treasurer of the respective coupons hereto attached."

A judgment was asked for the amount of bonds 6 to 10 inclusive, with the interest thereon.

The record contains in full the opinion rendered and filed by the court when disposing of the demurrer. 91 Fed. Rep. 37. In that opinion it is expressly stated that the following points were made in argument in support of the demurrer.

1. That the petition did not show that the

By the 5th section of the circuit court of appeals act, appeals or writs of error may be prosecuted to this court from the circuit courts "in any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States." 26 Stat. at L. 826, 827, 828, chap. 517.

The petition shows that the parties are citizens of different states. It states no other ground of Federal jurisdiction. If nothing more appeared bearing upon the question of jurisdiction, then it would be held that this court was without authority to review the judgment of the circuit court.

Is not this court, however, sufficiently informed by the record that the defendant township, under its general demurrer, "claimed" in the circuit court that the stat ute of Ohio by the authority of which the bonds were issued was in contravention of the Constitution of the United States.

It is said that, even if the record shows such a claim to have been made, it will not avail the plaintiff; for, it is argued, when the jurisdiction of the circuit court is invoked by the plaintiff only on the ground of diverse citizenship, a claim by the defendant of the repugnancy of a state law to the Constitution of the United States is not sufficient to give this court jurisdiction, upon writ of error, to review the final judgment of the circuit court sustaining such claim. Such an interpretation of the 5th section is not justified by its words. Our right of review by the express words of the statute extends to "any case" of the kind specified in the 5th section. And the statute does not in

7

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It is true that the plaintiff might have carried this case to the circuit court of appeals, and, a final judgment having been rendered in that court upon his writ of error, he could not thereafter have invoked the jurisdiction of this court upon another writ of error to review the judgment of the circuit court; for, as said in Robinson v. Caldwell, 165 U. S. 359, 362, 41 L. ed. 745, 746, 17 Sup. Ct. Rep. 343, "it was not the purpose of the judiciary act of 1891 to give a party who was defeated in a circuit court of the United States the right to have the case fi@nally determined upon its merits both in this court and in the circuit court of appeals," although the latter court, before disposing of a case which might have been brought here|ticipating the defense and alleging in his pedirectly from the circuit court, may certify 21 S. C.-12.

its answer claim that the state statute in | cript, we find it expressly stated therein, not question was in contravention of the Consti- only that such a claim was made by the towntution of the United States; for that would ship on the hearing of the demurrer, but that have been matter of defense, and the allega- the judgment sustaining the demurrer and tion could, on motion, have been properly dismissing the petition was placed upon the stricken from the petition. Nevertheless, sole ground that the claim that the state the case is one in which there was a claim law contravened the Constitution of the that a state law was repugnant to the Con- United States was well made. stitution of the United States.

This brings us to the inquiry whether it can be assumed from the present record that a claim was made in the circuit court that the statute of the state under the authority of which the bonds in suit were issued was invalid under the Constitution of the United States. There can be but one answer to this question, if we may look to the opinion filed by the circuit court when it disposed of the demurrer. Although the demurrer was general in its nature, it referred to the petition and its allegations, and thus brought to the attention of the court the state enactment under which the bonds were issued; and it was certainly competent for the township to 2. In all cases brought to this court, by writ claim at the hearing of the demurrer that of error or appeal, to review any judgment or such enactment upon its face was repugnant decree, the clerk of the court by which such to the Constitution of the United States, and judgment or decree was rendered shall annex therefore void. Turning to the opinion of to and transmit with the record a copy of the the circuit court, made part of the trans-opinion or opinions filed in the case.

887.

undoubtedly be taken as an adjudication | those courts have changed and confused the that the opinion of the court cannot, under matter very much since that time." After our rule, be referred to for the purpose of observing that it was in reference to one of ascertaining the evidence or the facts found the necessities thus brought about that this below upon which the judgment was based; court had long since determined to consider but not as precluding this court from look- as part of the record the opinions delivered ing into the opinion of the trial court for any in such cases by the supreme court of Loupurpose whatever; as, for instance, for the isiana, it was said: "And though we have purpose of ascertaining whether either party repeatedly decided that the opinions of other claimed, in proper form, that a state law state courts cannot be looked into to ascer upon which some of the issues depended was tain what was decided, we see no reason why, in contravention of the Constitution of the since this restriction is removed, we should United States. The principal, if not the not so far examine those opinions, when only, object of requiring the opinion to be an- properly authenticated, as may be useful in nexed to and transmitted to this court was determining that question." that we might be informed of the grounds upon which the court below proceeded. Unless the rule had at least that object why should it have been adopted?

The subject was again considered in Gro88 v. United States Mortg. Co. 108 U. S. 477, 486, 27 L. ed. 795, 798, 2 Sup. Ct. Rep. 940, which came from the supreme court of Illinois. After referring to what was said in Murdock v. Memphis, this court said: “We cannot, therefore, doubt that in the existing state of the law it is our duty to examine the opinion of the supreme court of Illinois, in connection with other portions of the recthis writ of error properly raises any question determined by the state court adversely to a right, title, or immunity under the Constitution or laws of the United States, and specially set up and claimed by the party bringing the writ." It is true that in that case the court stated that any difficulty upon the subject was removed by the statutes of Illinois regulating that subject; but the decision was not placed upon that ground.

In United States v. Taylor, 147 U. S. 695, 700, 37 L. ed. 335, 337, 13 Sup. Ct. Rep. 479, which came from a circuit court of the United States, this court said: "It was formerly held that, even in writs of error to a state court, the opinion of the court below was not a part of the record (Williams v. Nor-ord, for the purpose of ascertaining whether ris, 12 Wheat. 117, 119, 6 L. ed. 571, Rector v. Ashley, 6 Wall. 142, 18 L. ed. 733; Gibson v. Chouteau, 8 Wall. 314, 19 L. ed. 317); but the inconvenience of this rule became so great that it was subsequently changed (Murdock v. Memphis, 20 Wall. 590, 22 L. ed. 429), and, finally, the 8th rule of this court was so modified, in 1873, as to require a copy of the opinion to be incorporated in the transcript."

In Sayward v. Denny, 158 U. S. 180, 181, 39 L. ed. 941, 15 Sup. Ct. Rep. 777, in which the question was whether it sufficiently appeared from the record that the state court had denied any Federal right or immunity specially set up or claimed by the party who invoked our jurisdiction, the Chief Justice observed that certain propositions must be regarded as settled, one of which was that the arguments of counsel formed no part of the record, "though the opinions of the state courts are now made such by rule,"-citing, among other cases, United States v. Taylor, above referred to.

The rule of our court referred to does not apply alone to cases brought here from the highest court of a state. It applies, in terms, to all cases brought to this court by writ of error or appeal. What, therefore, was said in the above cases as to the object and effect of the rule applies to records from

a circuit court of the United States.

It has long been the practice of this court in cases coming from a state court to refer to its opinion made part of the record, for the purpose of ascertaining whether any Federal right specially set up or claimed had been denied to the plaintiff in error, or whether the judgment rested upon any ground of local law sufficient to dispose of* the case without reference to any question of

a Federal character. And we have done this

without stopping to inquire whether there was any statute of the state requiring the opinion of the court to be filed in the case as part of the record.

held that in a case brought here from a cirFor the reasons we have given it must be and which has been annexed to and transmitcuit court the opinion regularly filed below, ted with the record, may be examined in order to ascertain, in cases like this, whether either party claimed that a state statute upon which the judgment necessarily depended, in whole or in part, was in contra

States. By this, however, we must not be understood as saying that the opinion below may be examined in order to ascertain that which under proper practice should be made to appear in a bill of exceptions, or by an agreed statement of facts, or by the pleadings.

Some light is thrown upon this question by the decisions in cases from the highest courts of the states. In Murdock v. Mem-vention of the Constitution of the United phis, 20 Wall. 590, 633, 22 L. ed. 429, 443, it was said that in determining whether a Federal question was actually raised and decided in the state court "this court has been inclined to restrict its inquiries too much by this express limitation of the inquiry 'to the face of the record.' What was the record of a case was pretty well understood as a common-law phrase at the time that statute [act of 1789] was enacted. But the statutes of the states and new modes of proceedings in

The result is that this court has jurisdiction to review the judgment of the circuit court, and to determine every question properly arising in the case. We may there.

having elected to stand upon his petition, the action was dismissed.

Looking at all the provisions of the stat ute that court held that the case was embraced by Norwood v. Baker, 172 U. S. 269, 279, 297, 43 L. ed. 443, 447, 454, 19 Sup. Ct. Rep. 187, and upon the authority of that case held that the bonds were issued in contravention of the 14th Amendment of the Constitution of the United States, prohibit ing the taking of property without due process of law.

In Norwood v. Baker it was said that "the

exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of priv ate property for public use without compensation," and that the assessment involved in that case, made against abutting property, to pay the cost and expense of opening a street in a village, was illegal and void because made "under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation."

fore determine whether the court below erred | from that of which the township was a corin sustaining the demurrer to the petition.poration, was entitled to sue upon them with II. One of the questions arising upon the out reference to the citizenship of any prior record is whether the defendant township is holder. Thompson v. Perrine, 106 U. S. 589, a corporation within the meaning of that 592, 593, 27 L. ed. 298, 300, 1 Sup. Ct. Rep. clause of the judiciary act of August 13th, 564, 568. This point was properly decided 1888, chap. 866, 25 Stat. at L. 433, 434, § 1, for the plaintiff. which excludes from the cognizance of a III. Was the statute under which ther circuit or district court of the United States bonds in suit were issued in violation of the "any suit, except upon foreign bills of ex- Constitution of the United States? The circhange, to recover the contents of any prom-cuit court held that it was; and, the plaintiff issory note or other chose in action in favor of any assignee, or of any subsequent holder, if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made." This question affects the jurisdiction of the circuit court to take cognizance of this case. When the act of 1888 was passed it was the established law that a municipal corpoeration created under the laws of a state, with power to sue and be sued and to incur obligations, was to be deemed a citizen of that state for purposes of suit by or against it in the courts of the United States. In Cowles v. Mercer County, 7 Wall. 118, 122, sub nom. Mercer County Suprs. v. Cowles, 19 L. ed. 86, 88, this court said: "It is enough for this case that we find the board of supervisors [of the county] to be a corporation authorized to contract for the county. The power to contract with citizens of other states implies liability to suit by citizens of other states, and no statute limitation of suability can defeat a jurisdiction given by the Constitution." Lincoln County v. Luning, 133 U. S. 529, 531, 33 L. ed. 766, 767, 10 Sup. Ct. Rep. 363; McCoy v. Washington County, 3 Wall. Jr. 381, 384, Fed. Cas. No. 8,731; Dillon, Removal of Causes, § 105. We perceive nothing in that act indicating any purpose of Congress to exclude from the jurisdiction of the circuit courts of the United States suits by or against municipal corporations having authority by the laws creating them to sue or to incur liabilities in their corporate name. It must therefore be taken that the words "any corporation," in the act of 1888, include municipal as well as private corporations. And it is the settled law of Ohio that a township is suable on account of any liabilities incurred by it. Harding v. New Haven Twp. 3 Ohio, 227; Concord Twp. v. Miller, 5 Ohio, 184; Wilson v. Trustees of No. 16, 8 Ohio, 174. Now, by the statutes of Ohio, the defendant township was constituted a body politic and corporate for the purpose of enjoying and exercising the rights and privileges conferred upon it by law, and was made capable of suing and being sued, pleading and being impleaded. 1 Bates's Anno. Stat. Ohio, & 1376. It was created for purposes of local administration, and is a corporation. Fairfield Twp. Bd. of Edu. v. Ladd, 26 Ohio St. 210, 213; Lane v. State, 39 Ohio St. 314. As, therefore, the bonds in suit were executed by the defendant township, a corporation, and are payable to bearer, the present holder, being a citizen of a state different

We are of opinion that the circuit court erred in holding that the petition made a case that necessarily brought it within the decision in Norwood v. Baker, so far as the relief sought by the plaintiff was concerned.

We have seen that the 1st section of the act of 1893 authorized and required the improvement to be made, and directed the township to appropriate, enter upon, and hold any real estate necessary for such purpose; that the 2d section directed that proceedings for condemnation be immediately taken in the probate court under specified sections of the Revised Statutes of Ohio; that the 3d section prescribed how the assessment to meet the cost of improvement shall be made namely "upon each front foot of the lots and lands abutting on each side of said Williams avenue between the termini mentioned;" and that a separate section, the 4th, directed bonds to be issued "for the purpose of raising money necessary to meet the expense of the improvement."

The 2d section of the act directed the' trustees of the township to make immediate application to the probate court of the county, as provided in § 2236 of the Revised Statutes of Ohio, and declared that the proceedings thereafter, as far as practicable, should