Mr. Justice Moody,
after making the foregoing statement of- facts, delivered the opinion of the court.
The first question certified is thought by a majority of the court to contain more than a single question or proposition of law, and for that reason it is not answered.
The second question deals with the exoneration from subscription to the stock of the Elizabethtown and Tennessee Railroad Company which was made by the vote of the county a condition to the issue of the bonds, and we confine our consideration to that question and the facts relevant to it.
There is no doubt of the power of the defendant to issue the bonds. The legislature of Kentucky gave it in plain terms, upon the condition that its exercise receive the approval of the qualified voters. That approval was given upon the condition imposed by the vote that the bonds should not be issued before the county had been exonerated from a subscription to the stock of another railroad company. The law gave the county the right to impose conditions. This particular condition is a condition precedent to the lawful issue of the bonds, although it must not be understood that this statement applies to the other so-called conditions expressed in the vote:
Of them nothing is intended to be said. • If there had been a recital in the bonds which imported that the condition had been performed, that would have been conclusive in favor of a bona fide holder. Provident Trust Co. v. Mercer County, 170 U. S. 593; Gunnison County Commissioners v. Rollins, 173 U. S. 255. But there was no such recital in the body of .these bonds, and the words of the heading, "For the Cumberland and Ohio Railroad," cannot be interpreted as such without going beyond the decided cases, which themselves have gone far. In the absence of a recital it is open to the defendant to show that the condition which it had a right to impose and did impose by the vote of its electors had not been complied with.; Citizens' Savings Association v. Perry County, 156 U. S. 692. In other words, in the absence of a recital, the performance of the condition is not conclusively presumed.
But by the terms of the law it was the duty of the judge of the County Court, in whom the powers of the court were vested, to issue the bonds. After a favorable vote has been had in an election called by the court, the law provides that " it shall be the duty of said County Court . to make the subscription in the name- of their . . . counties . . . and proceed to have.issued the bonds to the amount of such subscription, as. hereinbefore directed." This clearly placed upon the judge , the duty and responsibility of ascertaining and determining whether the condition of the issue of the bonds had been complied with. Coloma v. Eaves, 92 U. S. 484.
If he had issued the bonds and they had contained in them recitals which fairly imported a compliance with the condition upon the happening of which their issue was authorized, they would have gone into' the hands of 'innocent holders with a conclusive presumption that the condition had been performed. This principle has been announced by repeated decisions of this court and needs no other citations to support it than those already, made. Without such recital the presumption is, as has been shown, not conclusive. The further question arises, therefore, whether there is any presumption at all of the performance of the condition from the facts of subscription and 'issue. In the first case, dealing with this question (Knox County v. Aspinwall, 21 How. 539), it was:said that a purchaser of such bonds'had the right to assume that the condition of their issue had been complied with, merely from the facts of the subscription and issue. But in this case there was a recital, and subsequent cases have limited the adjudication to the precise point necessarily decided. Citizens' Savings Association v. Perry County, ub. sup. In Supervisors v. Schenck, 5 Wall. 772, it was said obiter by Mir. Justice Clifford, speaking of bonds of the kind under consideration, " the bona fide holder has a right to presume they were issued under the circumstances which give the requisite authority." The same dictum was,. in substance repeated by the same justice in Lexington v. Butler, 14 Wall. 282-296.
In Pendleton County v. Amy, 13 Wall. 297, it appeared that the county of Pendleton had issued bonds in aid of a railroad company. An act of the legislature gave the county the authority to issue the bonds, provided a majority of the real estate owners of the county should so vote. One of the pleas of the defendant in an action on the bonds was that they had never been authorized by the vote prescribed in the act which gave the power to issue them. This plea was. demurred to,> and the court passed upon the question thus raised. Mr. Justice Strong, in delivering the opinion of the court, said:
"If the right to subscribe be made dependent upon the result of a popular vote, the officers of the county must first determiné whether the vote had been taken as directed by law, and what the vote was. When, therefore, they make a subscription, and issue county bonds in payment, it may fairly be presumed, in favor of an innocent purchaser of the bonds, that the condition which the law attaches to the exercise of the power, has been fulfilled. To issue the bonds without the fulfillment of the precedent conditions would be a misdemeanor, and it is to be presumed that public officers act rightly. We do not say this is a conclusive presumption in all cases, but it has more than once been decided that a county may be estopped against asserting that the conditions attached to a grant of power were not fulfilled."
In.this case there was no recital in the bond. It appeared by the pleadings that the bonds had been exchanged for the stock of the railroad company which 'was retained, and the decision was based upon the ground that the retention of the stock created an estoppel.
In the case of Coloma v. Eaves, 92 U. S. 484, the opinion of the court lends some countenance to the broad principle stated in Knox v. Aspinwall, but Mr. Justice Bradley, in a concurring opinion, said:
"I dissent from the opinion of the court in this case, so far as it may be construed to reaffirm the first point asserted in the case of Knox County v. Aspinwall, to wit, that the mere execution of a bond by officers charged with the duty of ascertaining whether a condition precedent has been performed is conclusive proof of its performance. If, when the law requires a vote of taxpayers before bonds can be issued, the supervisor of a township, or the judge'of probate of a county, or other officer or magistrate, is the officer designated to ascertain whether such vote has been given, and is also'the proper officer to execute, and who does execute, the bonds, and if the bonds themselves contain a statement or recital that such vote has been given, then the bona fide purchaser of the bonds need go-back no farther. He has a right to rely on the statement as a determination of the question. But a mere execution and issue of the bonds without such recital is not, in my judgment, conclusive. It may be prima facie sufficient, but the contrary may be shown. This seems to me to be the true distinction to be taken on this subject; and I do not think that the contrary has ever been decided by this court: "
. These cases left it uncertain whether the court would give to the facts of subscription to stock and issue of bonds in payment therefor by officers charged with- the duty of ascertaining whether conditions.-precedent had' béen complied with, the same conclusive effect as to the -validity of the bonds which would exist when • to those facts was added a recital in the bonds themselves. But the tendency, observable in the earlier cases, to deny to bonds in the hands of an innocent holder any other defense than a want of power of the maker was arrested by the cases> of Buchanan v. Litchfield, 102 U. S. 278, and Citizens' Savings Association v. Perry County, uh. sup., which held that the mero facts of the. subscription to stock and issue of bonds containing no recital left it open to the obligor to show that a condition precedent had not been fulfilled. But these cases in no way conflict with the view expressed by Mr. Justice Strong in Pendleton County v. Amy, and by Mr. Justice Bradley in- Coloma v. Eaves, .that a presumption arises from the mere fact of subscription and issue, though not a conclusive one. Independent of' authority such a presumption exists and is but an instance of the broader presumption that officers charged with the performance of a public duty perform it correctly. In the case at bar the judge of the County Court was charged with the duty of issuing the bonds upon the performance of the condition precedent.' That condition was that, the county should be "fully and completely exonerated from the payment of the capital stock voted by said county and authorized to be subscribed by said Green County Court to the Elizabethtown and Tennessee Railroad." The performance of that condition did not necessarily require; any formal release or the execution of any paper whatever. It was completely fulfilled, if from any circumstance it should appear that the county had been effectively relieved .from any liability on account-of the vote in aid of the Elizabethtown and Tennessee Railroad. It would be impossible for' any purchaser of the bonds to ascertain whether this condition had been complied with, except by an inquiry which would naturally be made of the-judge himself. The judge determined that'it had been complied with, and the fact that for thirty-eight years no one has rnáde any. claim against the county on account of its sup posed liability to subscribe to the stock of the Elizabethtown and Tennessee Railroad shows conclusively that he was right.
Construing the second question to inquire not whether there is conclusive presumption, but whether on thé facts found there is any presumption at all that the county had been exonerated from its former subscription to another railroad, we answer it
Yes.