Mr. M.H. Carpenter, for Havemeyer, holder of the bonds.

The first and second points may be argued together. The act authorizing the subscription is not a general law, and does not require to be published in order to be valid. The distinction was long since truly taken by an authoritative writer of the English law, — a no less authority than Chief Baron Gilbert. Under the title of "General and Particular Laws," he says in his book on evidence:

"The distinction between a general and a particular law is, whatever concerns the kingdom in general, is a general law; and whatever concerns a particular species of men, or some individuals, is a special law."

It is impossible to cite higher authority, though here found in a text-book, and unnecessary, therefore, to cite other. The same distinction, however, it may be said, runs through all judicial decisions. It has been declared in Wisconsin itself, and nowhere more emphatically. In Hewett v. The Town of Grand Chute, decided in 1858, long after these bonds had been sold, the question was not even thought of being raised. The action was on bonds issued, by the town, in pursuance of an act almost identical with this one. The question was, whether, being a private act, the act was properly pleaded? That it was a private act, no one was hardy enough to deny. The difficulty of the case would have disappeared had the act been a public one. The Supreme Court of Wisconsin say, and this court will specially note their language:

"The cause of action is founded upon a private statute; or rather upon certain instruments or contracts in writing, which derive their validity from such private statute. By the common law it was necessary to set out such statute in the declaration, otherwise the court would not take notice of its provisions: unlike, in this respect, a public statute, of which the court was bound to take judicial notice, though the latter were not pleaded. But section sixty-nine of the Code of Procedure provides as follows: 'In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.' In this case the plaintiff in his complaint did refer to the statute from which his right was derived, by reference to its title and the day of its passage, and he thus brought the whole statute within the judicial knowledge of the court," c.

This view — a unanimous one of the old Supreme Court of Wisconsin — the view also taken previous to it by the secretary of state and the attorney-general — remained unquestioned and without doubt as to its being true law, until 1859, when the tax-payers woke up to the truth that it is easy to contract debt, but not always easy to pay it, and a majority of our Supreme Court, — three judges elected by the people — discovered in State v. Leon, the saving fact that such statutes are of a "general nature;" declaring a few years later that an election before the publication authorizing the issue, was "an idle act, wholly unauthorized and of no importance whatever." This departure from precedent, is the consequence of a judicial tenure for less than good behavior; a bench of justice elected as that in Wisconsin, at short terms, by general suffrage.

But it is our privilege to come to this tribunal, where the " arbitrium popularis aurœ" is unknown, and which neither takes up nor lays down the scales of justice at its command. To this court, then, — this "more than Amphyctionic council," — we appeal. We rely upon the important doctrine here asserted at December Term, 1864, in Gelpcke v. The City of Dubuque. The court in that great case, — argued thoroughly, deliberately considered, solemnly adjudged, — says:

"The sound and true rule is, that if the contract when made was valid by the laws of the State as then expounded by all departments of the government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of the legislature, or decision of its courts altering the construction of the law. The same principle applies where there is a change of judicial decision as to the constitutional power of the legislature to enact the law. To this rule, thus enlarged, we adhere. It is the law of this court. To hold otherwise, would be as unjust as to hold that rights acquired under a statute must be lost by its repeal."

Our case falls within this principle. The bonds were issued in 1853, were disposed of, and were circulating in the market with full approbation of the legislature; the people of the county; every department, including the judicial tribunals of the State, until the year 1859; and during all these years, in which the bonds were made and sold, they were valid and legal contracts, and would have been enforced by our State courts, upon the ground that the acts authorizing their issue were private and local laws and were in force from their passage without publication.

It is unimportant in view of the decision of this court in Gelpcke v. Dubuque, whether the late decisions of our State court give or do not give the sounder construction of our constitution. In subsequent contracts this court may regard them as giving that which is the sounder; but the action of the State, in its legislative, administrative, and judicial departments, during the period of the making and negotiating of these bonds, must furnish the rule to be applied in all suits founded upon them, whether, in the opinion of this court, that action was right or wrong. It was the law of the contract and cannot be changed without destroying the obligation of what, when made, was valid and binding.

3. Assuming, as we do, that the court must take the view which we present on these two points, we are not solicitous as to the answer which it may give on the last point certified. If any answer is given, it must follow the answer to the others.

Mr. Ryan, contra: Mr. Carpenter refers to the distinction which has passed into technical law between general laws and particular or special laws. But the act of 1852, directing a classification, does not use the terms "general law," but uses another expression, "acts of a general nature," which it distinguishes from "private and local acts." This shows that it was not the intention of the legislature to classify its statutes by their legal character, but according to the public interest in having access to them. The first class is to contain all "acts of a general nature," but not all "general acts." The second class is to contain all general acts which are local, all charters which are public, and all private acts. It is inconceivable how a municipality, with a changing population, amounting from hundreds of political units to hundreds of thousands, and capable of including, and almost inevitably including, property of strangers affected by all legislation having relation to it, could be bound by a private act. If the act before the court can be dealt with as a private act, it is not seen on what distinguishing principle, absurd as the proposition is, all municipal law might not be found in private statutes.

The counsel would seem to rely on the classification made by the secretary of state and the attorney-general, which two officers regarded the act as one of a private nature, and classified it accordingly. But the question whether a statute is public or private, is judicial. No question of interpretation is more purely so. The constitution of Wisconsin, in common with most of our American constitutions, exhausts the judicial power; and it is not competent for the legislature to vest it in persons or officers, other than such as the constitution prescribes. Here, the duty of classification is given to ministerial officers. And their action is not only not binding, but is of no weight in the courts. It is for the judicial department to declare their acts right or wrong; not for them to impose judicial construction upon the courts.

Confessedly, every decision in the highest courts of Wisconsin since the case of State v. Leon, including that one, has been that these acts are general laws. In Hewett v. The Town of Grand Chute, whose language is extracted and presented as conclusive on the other side, and to which opposite counsel invites specially the court's attention, the matter was not in issue. Attention was not directed to it. Assuming the act to be a private one, the court held it to be rightly pleaded. That is all. The decisions then are unbroken.

There is a uniform and settled rule of adjudication upon the constitution and laws of the State; followed by all the courts of the State, and, in the State courts, recognized and admitted by the bar of the State.

In questions of State institutions and policy, not conflicting with the Federal Constitution, the several State courts are the appropriate tribunals to give the rule of decision; and this court has, therefore, from the earliest times, with high judicial comity and political sagacity, followed the rule of State decision upon State statutes whenever such a rule was to be found clearly established. "This court has no authority," was the language of a case from Pennsylvania, "to revise the act of that State upon any grounds of justice, policy, or consistency to its own constitution. These are concluded by the decision of the public authorities of the State." The quotation is the law of our controversy. And it will be a calamity, not only to the judicial, but to the political history of the country, if time should witness the departure of this court from its ancient practice of just and conservative forbearance, and its regard of the State rule of decision on questions of purely State law. With this long-settled doctrine of the court the action of the people and courts of Wisconsin is not open for argument. It is enough that the people of Wisconsin have formed their constitution as they have, and that the Supreme Court of the State interpret it as they do. That is their right solely. The State having been admitted into the Union under a constitution approved by Congress, and not repugnant to the constitution or laws of the United States, no department of the Federal government has power to set it aside, to treat it as a nullity, or to destroy it by interpretation, in matters properly subject to it.

The third question certified, is abstract. It calls for the opinion of this court, whether any act or omission of the county, its officers, or electors, under the condition stated, could render the bonds valid or estop the defendant. If any such act or omission could have such an effect, that would depend upon the character of the particular act or omission, the time of its occurrence, the persons by whom and with whom done or omitted and their authority, and generally the circumstances under which done or omitted. All these conditions rest, in the question, in supposition. There are no recitals in the bonds themselves. There is therefore nothing in the record bearing on this question. The record discloses only the facts of the election, the execution of the defendant's bonds, and the exchange or issue of them. It was not contended in the court below, and it is not here, that these facts have any tendency, of themselves, to render the bonds valid or to estop the defendant from questioning their validity, if the act was not in force. The question certified did not "occur" in the court below, but only suggested itself as something which might occur; it did not meet the judges, and was not involved in any decision they were called upon to make. It is not an occurrence, but only a supposition, and not within the act of Congress. The court below, therefore, had no jurisdiction to certify it here; and this court has no jurisdiction to decide it.