Opinion of the Court. thereof, as the case may be, under the seal of the said city; and if issued by a township, they shall be executed by the supervisor and clerk thereof; and if any city or township issuing such bond shall have a seal, the same shall be impressed upon each of such bonds. The bonds and coupons attached thereto shall be payable at the office of the treasurer of the county in which such township or city may be situate. Whenever any such bonds as provided by provisions of this act shall have been issued as therein specified, the same shall be delivered by the person, persons or officers having charge of the same to the treasurer of this State, who shall give a receipt therefor and hold the same as trustee for the municipality issuing the same and for the railroad company for which they were issued, and to be disposed of by said treasurer in discharge of his trust as hereinafter provided. Upon receipt of any such bonds from any township or city in aid of any such railroad company, the treasurer of this State shall immediately register or record the same in a book or books to be kept by him for that purpose in his office, which record shall show the amount, date and number of each bond, the rate of interest which it bears, by what township or city issued, to the benefit of what railroad company the same are issued, and the time when payable, which record shall be always open for the inspection of any citizen of this State or other interested person. Such bonds shall be safely kept by such treasurer for the benefit of the parties interested, and be disposed of by him in the following manner; that is to say, whenever any railroad company, in aid of which any of such bonds may have issued, shall present to said treasurer a certificate from the governor of this State that such railroad company has in all respects complied with the provisions of this act, and is thereby entitled to any of such bonds, the same, or such of said bonds as said company shall be entitled to receive, shall be delivered to said company, the treasurer first cutting therefrom, cancelling and returning to the municipality the past-due coupons. The treasurer shall endorse upon each of said bonds the date of such delivery and to whom the same were delivered, and the same shall draw interest only from the time Opinion of the Court. when so delivered; and the treasurer shall notify the clerk of the township, or recorder or clerk of the city issuing the same of the date of the delivery of its bonds to such railroad company. . . And in case any bond so delivered to said treasurer by any such township or city shall not, within three years from the time when the same was received by him, be demanded in compliance with the terms of this act, the same shall be cancelled by said treasurer and returned to the proper officers of the township or city issuing the same." A critical analysis of this statute indicates this to have been the plan: In the preparation and perfecting of the plan persons described by certain official titles, and probably selected because of their titles, were to participate. (1) The bonds were to be "executed;" that is to say, written or printed, signed and sealed by the supervisor and clerk of the township. Here the powers of those persons ceased. They could not perfect the instruments by delivery. The word "executed," used in the statute in connection with the acts mentioned, manifestly does not import the final delivery; for that is expressly directed to be done by the treasurer. Such delivery as they could make was clearly not the technical delivery needed to complete the bonds as negotiable instruments, because the power to hand over to the payee was not conceded to them in any event. The delivery which they were directed to make to the treasurer in his capacity of statutory trustee was only such as amounted to a "giving up" or the "committing" of them to the treasurer for his safe-keeping. The word was used in its ordinary and popular sense, not in the technical one. (2) To the governor, and the governor alone, was given the power to determine whether the bonds should ever in fact issue, and if issued, when they should issue. For to him was committed the decision of the important question whether the railroad had performed its part of the common undertaking. His certificate was to be the evidence of that fact, and the only admissible authentication of it to the trustee, the depositary. So far as the investigation and determination of that question were concerned and the certifying of it, the governor was to Opinion of the Court. discharge that function in the process of issuing the bonds which was imposed on the auditor in the case of Anthony v. County of Jasper, supra, the difference being that in that case the certificate was to be endorsed on the bonds themselves, but not so in this case. The State treasurer was appointed to be a trustee for both the township and company; to receive the bonds; to register them; and to finish their clerical execution, using the word in its popular sense, by his endorsements on them of the date of delivery, and of the person to whom delivered. Such endorsements are clearly a part of the very form of the completed bond, as laid down in the Jasper County case, supra. He was also to cancel them, and to return them so cancelled to the township authorities if not demanded in three years; and, finally, if demanded in compliance with the terms of the act within the three years, to complete their execution (using the word in its technical sense) by delivering them. Such, as we understand it, was the intention of the legislature. If it be said that such details are useless and technical, a sufficient answer is, so the statute is written; and the courts cannot unmake or modify it. As already shown, the legislature in this class of cases has the right to provide the processes by which the contract is to be perfected. Moreover, we do not think these details are either useless or technical. When it is remembered that the whole policy of allowing contracts of this class has been deprecated by some of the oldest publicists and jurists, and that the negotiable form of such bonds has often led to the imposing of great burdens on municipalities for which there has been no return, we are not disposed to criticise the care of a legislature to establish a system of even rather severe checks as a condition to its concession of such extraordinary powers. The appellant claims that the bonds were perfected instruments when delivered to the state treasurer that the minis terial duties had been performed in full. The argument proceeds largely upon the idea that, as to this transaction, the township and its agents, the supervisor and clerk, were a complete and rounded organism, distinct from the state treasurer, Opinion of the Court. and capable of dealing with the treasurer as if he were a third party in making delivery to him, for instance. We do not so regard it. All the steps directed by the statute to be taken leading up to the final act of delivery to the railroad company constitute one progressive process. To adopt the language of the court in the McGarrahan case, supra, "each and every one of the integral parts of the execution is essential to the validity of the bond." We hold, therefore, that, since the bonds were never endorsed and delivered by the treasurer as required by the statute, they never became operative. The act of delivery is essential to the existence of any deed, bond or note. Although drawn and signed, so long as it is undelivered it is a nullity; not only does it take effect only by delivery, but also only on delivery. Bayley v. Taber, 5 Mass. 286; Marvin v. McCullom, 20 Johns. 288; Ward v. Churn, 18 Grattan, 801; Lovejoy v. Whipple, 18 Vermont, 379. The appellant, however, contends that these bonds were, in effect, delivered that "by the delivery to the treasurer and by the performance of the conditions the title to the bonds vested in the company, the state treasurer holding them as trustee for the township and for the railroad company." We cannot concur in this view. The law in reference to escrows seems to be involved in some uncertainty. What the effect is of a performance of the conditions by the grantee, the instrument remaining in the hands of the depositary — whether, in such case the second delivery by the depositary is or is not necessary to give effect to the deed—are questions about which the courts yet differ. But concede the appellant's position to be correct, as a general rule, yet that general rule does not necessarily control this case. These are extraordinary instruments, and certain fundamental questions of power to contract and of details of execution underlie any action brought upon them, which render the usual rules in regard to escrows very unsafe guides. Too much stress cannot be laid on the necessity for consulting the statute. Even in the case of an ordinary escrow, nothing passes by the deed until the condition is performed. Calhoun County v. VOL. CXXXII-23 Opinion of the Court. Here the condition American Emigrant Co., 93 U. S. 124. prescribed by the statute as that upon which the delivery was to be made to the railroad company, and on which the bonds were to be perfected instruments in its hands, was never performed. On this point the statute seems to be very simple and clear. Indeed, it would be difficult to make it more clear. By its very terms, the bonds received by him in their uncompleted condition were to be by the state treasurer "safely kept;" and for three years after their reception could only be parted with by him in one way—that is, to the railroad company interested, on its production of the governor's certificate. On that condition could they be delivered, not on any other. The certificate was not a mere formal act on the part of the governor, but was a condition precedent to the power of the treasurer to deliver. The statute is not only emphatic on this point, but also repetitious in its emphasis. Section 5 says, the bonds are "to be disposed of by said treasurer in discharge of his trust as hereinafter provided;" and section 6 provides that "such bonds shall be safely kept by such treasurer for the benefit of the parties interested, and be disposed of by him in the following manner; that is to say, whenever any railroad company shall present to said treasurer a certificate from the governor," etc.; also, that "in case any bond so delivered to said treasurer shall not within three years be demanded in compliance with the terms of this act, the same shall be cancelled by said treasurer," etc. The certificate was designed to be the treasurer's sole authority to deliver. The question whether the railroad company had “in all respects complied with the provisions of this act" was one that he could not inquire into except by consulting the governor's certificate. This was his only and conclusive evidence, by the very terms of the statute. The company's compliance with the provisions of the act gave it the right to receive the governor's certificate; but it did not confer the right to receive the bonds. That was given by the governor's certificate alone. Had the treasurer made delivery without the certificate, he would have acted without authority of law, and the bonds. would have been voidable in the hands of the company. An |