446; Commonwealth v. Hitchings, 5 Gray, 482; Commonwealth v. Pomeroy, id. 486; State v. Copeland, 3 R. I. 64; Armstrong v. Jackson, 1 Blackf. 374; Clark . Ellis, 2 Blackf. 248; People v. Hill, 7 Cal. 97; Lathrop v. Mills, 19 Cal. 513; Rood v. McCargar, 49 Cal. 117; Supervisors of Knox Co. v. Davis, 63 Ill. 405; Myers v. People, 67 Ill. 503; Thomson v. Grand Gulf R. R. Co. 3 How. (Miss.) 240; Mobile & Ohio R. R. Co. v. State, 29 Ala. 573; Santo *. State, 2 Iowa, 165; State v. Cox, 3 Eng. 436; State v. Wheeler, 25 Conn. 290; People v. Lawrence, 36 Barb. 190; Williams v. Payson, 14 La. Ann. 7; Ely . Thompson, 3 A. H. Marsh, 70; Commonwealth v. Hitchings, 5 Gray, 485; Willard v. People, 5 Ill. 512; People v. Briggs, 50 N. Y. 566; Robinson v. Bidwell, 22 Cal. 379; State v. Easterbrook, 3 Nev. 173; Hagerstown v. Dechert, 32 Md. 369.

Wherever it is, on the contrary, evident, taking the whole act together, that the Legislature would not have enacted the part which remains without qualifying it by the unconstitutional part or without annexing such unconstitutional part, then the whole must be held to be invalid.

Warren . Mayor, 2 Gray, 99; State v. Commissioners, 5 Ohio (N. S.) 507; Slawson v. Racine, 13 Wis. 398; Allen Co. Commissioners v. Silvers, 22 Ind. 491; Garrard Co. Court v. Navigation Co., 10 Am. L. Reg. (N. S.) 160; Eckhart v. State, 5 W. Va. 515; Jones v. Robbins, 8 Gray, 338; Monroe v. Collins, 17 Ohio (N. S.) 666; Campan v. Detroit, 14 Mich. 272; Commonwealth 7. Potts, 79 Pa. St. 164; Baker v. Braman, 6 Hill, 47.

The construction put by the court upon the act involved in the principal case clearly brought it within the scope of the former line of authorities. The purpose of the Legislature was to set the railways in operation. In order to do this an act was passed authorizing the exchange of the railroad companies' bonds for State bonds, so that the companies might have the advantage of the State's credit in raising the funds necessary to construct and maintain their roads. In order to secure the State against loss a statutory lien in the nature of a first mortgage was provided for in its favor upon the property of the railroad companies. That lien was to inure to the advantage of the holders of State bonds if necessity required. Subsequently the portion of the act authorizing the issue of the State bonds was held unconstitutional on the ground that the railroads were not such as the State was by the constitution of Florida authorized to exchange bonds with. This, however, in no way interfered with the validity of the rest of the act. It was perfectly possible to conceive that the Legislature might, in their desire to foster railroad facilities, have created the statutory lien to secure persons advancing their money for the building of the railroad. The act, therefore, qua the statutory lien, was constitutional and valid, although qua the issuing of State bonds it was unconstitutional and void.

Appellants contended that the act was not severable, that the Legislature could not be presumed to have intended one part to go into operation without the other, and that one part being unconstitutional and void, the whole was to be deemed so. They relied on the maxim, "Ex dolo malo non oritur actio," and the following authorities: Craig v. State of Missouri, 4 Peters, 425; Attorney-General v. Braun, 1 Wis. 522; Wright v. Defries, 8 Ind. 308; Strong v. Daniels, 5 Ind. 348; Astram v. Hammond, 3 McLean, 107; Meagher v. Story Co. 5 Nev.; Cappell v. Hall, 7 Wall. 558; U. S. v. Macon, 9 Otto, 590.

IV. "The construction given to the statute of a State by the highest judicial tribunal of a State is regarded as a part of the statute, and is as binding upon the courts of the United States as the text." Per SWAYNE, J., in Leffingwell v. Warren, 2 Black. 599. To the same effect are Elmendorf v. Taylor, 16 Wheat. 152; The Bank v. Dudley, 2 Pet. 492; Shelby v. Guy, 11 Wheat. 351; McCluny v. Silliman, 3 Peters, 270; Greene v. Neil's Lessee, 6 Pet. 291; Ross v. Duval, 13 Pet. 45; Massingall v. Dauns, 1 How. 767;

Nesmith v. Sheldon, 1 Howard, 812; Van Rensselaer v. Kearney, 11 How. 297; Webster v. Cooper, 14 How. 504.

If the highest judicial tribunal in a State adopts new views as to the proper construction of such a statute, and reverses its former decisions, the United States courts will follow the latest settled adjudication. U. S. v. Morrison, 4 Pet. 291; Green v. McNeil's Lessee, 6 Pet. 291.

This doctrine is somewhat shaken in Gelpcke v. City of Dubuque, 1 Wall. 206, where, while it is admitted that it is a settled rule of the United States courts to follow in the construction of a State statute the construction of the State courts, it is also held that they will not follow such adjudications to an extent which will in their judgment sacrifice truth, law, and justice.

V. The holders of State bonds invalid as against a State, but valid as against a corporation issuing them, may recover upon such bonds to the extent of their face value, notwithstanding the fact that they have been fraudulently put into the market by the officers of the corporation.

A corporation is, of course, bound by all acts done by its officers within the apparent scope of their authority. They are the accredited agents of the corporations, and if the public may not deal with them it is difficult to conceive with whom it may deal in transacting business with the corporations. It has been frequently held that the corporation is liable in case of a fraudulent overissue of stock by its officers. Merchants' Bank v. State Bank, 10 Wall. 650; New York & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Bank of Kentucky v. Schuylkill Bank, 1 Parson's Eq. (Pa.) 180; Willis v. Fry et al., 36 Leg. Int. (Phila.) 47; In re Bahia & San F. R. R. Co. L. R., 3 Q. B. 595. The present case seems to rest substantially on similar principles. That the holders of the coupon bonds issued by the State in the principal case were entitled to recover the face value of the bonds and not only the amount actually paid for them, would seem to follow as a matter of course when the negotiable character of the securities is taken into consideration. Coupon bonds issued either by States or municipalities and payable to bearer are considered to have all the qualities of negotiable paper. Mercer Co. v. Hacket, 1 Wall. 83; Gelpcke v. City of Dubuque, id. 206; Meyer v. City of Muscatine, id. 384; Beloit v. Morgan, 7 Wall. 619; City v. Lamson, 9 id. 478; McCoy v. Washington Co., 3 Wall. Jr. 382; Morris Čanal v. Fisher, 1 Stockton, 700; Same v. Lewis, 1 Beasley, 329; Winfield v. City of Hudson, 4 Dutch. 255; Clark v. City, 10 Wis. 140; Maddox v. Graham, 2 Metc. (Ky.) 87; Philadelphia v. Sunbury R. R. Co., 33 Penn. St. 38; Johnson v. County, 24 Ill. 92; Craig . City of Vicksburg, 31 Miss. 217; Moran v. Commissioners, 2 Black. 722. It is indeed supposed that such is not the law in Pennsylvania, on account of the decision in the case of Diamond v. Lawrence Co., 37 Pa. St. 358, which was rendered in 1860. But the circumstances evinced such palpable fraud in the issuing of the bonds that it is to be feared the court was unduly swayed in its judgment. The case is generally admitted to be against the current of authority, and has been pronounced by the Supreme Court of the United States, in Mercer Co. v. Hacket, supra, not to be law. For further details about this case see Holland v. State of Florida, 15 Fla. 455, and State v. Jacksonville, Pensacola & Mobile R. R. Co., 16 Fla. 798.

Under the act of congress of May 15, 1856, and the act of the general assembly of Iowa of July 14, 1856, the Central Air-Line R. R. Co. acquired an absolute title to 120 sections of land, which it had a right to dispose of without the necessity of the approval of the state. A conveyance by a trustee to himself is not void, but only voidable at the option of the cestui que trust. Defendant in this action Held not to be in a position to question a sale of land by the Air-Line Co. to trustees of the road. Appeal from Monona circuit court.

This is an action involving the title to some 2100 acres of land situated in Monona county. The plaintiffs claim title through the Iowa Central Air-Line R. R. Co., under the original land-grant act of congress of May 15, 1856, and the act of the general assembly of Iowa of July 14, 1856. The defendants claim title under the same acts, and the further acts of the general assembly of March 17 and 26, 1860, and the act of congress of June 2, 1864. Upon a trial by the court there was a decree entered for the plaintiffs. Defendants appeal.

Joy & Wright and E. S. Bailey, for appellants.
Monk & Sellack, for appellee.

ROTHROCK, J.-1. The acts of congress and of the general assembly of this state, under which the respective parties hereto claim title to the land in dispute, have several times been before this court. In the case of Courtright v. Cedar Rapids & M. R. R. Co., 35 Iowa, 386, these legislative acts are fully set forth. The various provisions thereof need not, therefore, be repeated here. This controversy involves a part of the same lands, the title to which was determined in that case, to wit, the 120 sections which it was held the Iowa Central Air-Line R. R. Co. had the right and power to dispose of previous to the construction of any part of its road.

It is contended that the sale of the 120 sections was made without the knowledge, consent, or subsequent approval of the state, and that the company's board of directors was not authorized to make the selections and sell the land without such approval. But in the Courtright case it was determined that no restrictions were imposed by the state upon the right of the company to sell the land, except those imposed by the act of congress making the grant. It is there said: "Though the grant to the state was absolute, reserving only the power to resume all rights to the lands remaining undisposed of upon failure of the company to complete the road in the manner and time provided, yet the conditions and restrictions imposed by the act of congress upon the state rested upon the railroad com

pany. It took just such a title as the state held, and received it burdened with the same conditions, and none other. As we have seen, under the acts of congress the state had power to sell the 120 sections of land without any restrictions. The sale of the remainder of the land was restricted. This right and this title the state confirmed and granted to the railroad company. It received an absolute title to the 120 sections, and the right to convey the same without restriction. Its title to the remainder of the land was conditional, and its power to sell subject to the restrictions above stated."

The question as to the power of the railroad company to dispose of the 120 sections of land was directly involved in that case. If it had been held that no such power existed, the decision would necessarily have been the other way, because the land, being undisposed of by any proper authority, would have passed to the Cedar Rapids & Missouri R. R. Co., the grantor of the defendants, under the subsequent legislation, resuming the grant, and conferring it upon that company. The Courtright case was appealed to the supreme court of the United States, the question therein involving the construction of certain acts of congress, and the decision of this court was affirmed. 21 Wall. 310.

2. Having found that the Air-Line R. R. Co. had the power and authority to sell the 120 sections of which the land in controversy was a part, it only remains to be determined whether a sale thereof was actually made to those under whom the plaintiffs claim, before the act of resumption of March 17, 1860.

It appears in evidence that on the fifteenth day of March, 1858, the Iowa Central Air-Line R. R. Co. executed a deed of trust of certain of the lands included in the grant to J. Edgar Thompson, Gilleod H. Smith, and N. W. Isbell. This deed is of great length, and is fully set out in the appellees' abstract. It is unnecessary to refer to it at length here. It is sufficient to say that the object of said trust deed was to secure the payment of the bonds and obligations of the company which might be incurred in the construction of the road. On the eighteenth day of March, 1858, the said company executed another trust deed upon other lands of the grant, to secure the capital stock issued by the company.

On November 28, 1859, Thompson, Smith, and Isbell conveyed certain of the lands to M. K. Jessup, and on the same day Joseph B. Eaton, the successor of the said W. H. Gibbs as trustee, conveyed certain of said trust lands to said Jessup. Afterwards, in April, 1861, Jessup conveyed all of the lands which had been conveyed to him to J. Edgar Thompson, under whom the plaintiffs claim by conveyance and by will. The lands conveyed to Jessup, and which plaintiffs claim under him, were part of the 120 sections which were selected in advance of building the road. The Air-Line R. R. Co. was largely indebted for grading and other expenditures, and there was a meeting of the creditors of the company with the

directors thereof on the eighteenth day of November, 1859, at which meeting it was agreed that the 120 sections of land should be divided among the creditors. In pursuance of this arrangement, certain bonds and land scrip were issued in the name of Jessup for said Thompson and Smith, trustees, in payment of their services as such trustees; and upon the surrender of the bonds and scrip the conveyance of the land was made to Jessup for Thompson and Smith. Neither Jessup nor Thompson was present at that meeting. They were represented by Milton Courtright.

It may well be said that the evidence as to what services the trustees rendered which entitled them to this compensation is extremely meagre and unsatisfactory. It is well established, however, that the bona-fide indebtedness of the company largely exceeded the value of the 120 sections of land, being more than $1,000,000, and it may be true that the stockholders of the corporation or its creditors could have by an appropriate action cancelled the conveyance to Jessup as being fraudulent and without consideration. The conveyance, however, having been authorized by the board of directors, it invested Jessup and Thompson, his grantee, with the legal title to the land, and such title must stand until set aside by some one holding an equitable right superior thereto. It is claimed that the conveyance by a trustee of the trust property to himself is void. It is voidable as against the cestui que trust, but valid as to all other persons. See Small v. C., R. I. & P. R. R. Co., 8 N. W. Rep. 437.

In our opinion the defendant is in no position to question the sale of that part of the land which the Air-Line Co. had the undoubted right to sell. The legal title to this land had passed from the railroad company to Jessup before the grant was resumed and conferred upon the defendants' grantor. As well might it have been permitted in the Courtright case to question the validity or amount of the claims which he held against the company as affecting his title to the lands conveyed to him. Besides, suppose it should be conceded that the defendant may avoid the sale for fraud, it must assume the burden of proof, because the conveyance, although made to Jessup by the trustees for the benefit of the trustees, was an act done in pursuance of direct authority from the board of directors. What services were rendered by the trustees as the consideration for the land does not appear. Whether the claim was a mere sham, or a valid and just one, we are unable to determine from the evidence.

In our opinion the circuit court correctly determined that the plaintiffs were the owners of the land in controversy.

Affirmed.