336
FEDERAL R.EPORTER,
vol. 45.
plaintiff still remains the equitable owner of the land. He can still resortto a; court of equity, and, upon tendering back what he has received, compel the defendant to reconvey, or, if the defenda:nt has sold the land to a bona fide purchaser, compel him to account for its value or the proceeds. If the defendant had paid the $70,000 according to his promise, the plaintiff would doubtless be estopped from setting up the invalidity of the.agreement. As it is, the agreement cannot be enforced by either party, and each is remitted, no.twithstanding, to his pre-existing rights. The demurrer is sustained.
MASSACHUSETTs & S. CONST,' Co.
t1.
CANE
CREEK
Th.
'(Oircuit Oourt, D. South OaroZina. February 25, 1891.) . MU1'IIOIPAL
Where township bonds are declared invalid by the courts, and the legislature aftan' act provialng for the payment of suoh bonds, the debt representedby the bonds is inourred at the date of suoh a o t . · ,
IImEBTBDNESS-TowNsmp BONDS.
,
, '
At Law. Simeon Hyde, for complainant. Ira B. Jonea, for defendant. SIMONTON, J. The bill. is brought to enforce the delivery of$19,OOO bonds·of the Cane Creek township, issued in aid of the construction of the Charleston, Cincinnati & Chicago Railroad Company through that township. The defendant rests on the unconstitutionality of this debt. The constitution of South Carolina, art. 9, § 17, (18 St. at Large, 690,) provides: "Any bonded debt hereafter incurred by any county, municipal corporation,of political division of the state, shall never exceed eight per cent. of the assessed value of all the taxable property therein." It is contended that $19,000 exceeds 8 per cent. of the assessed value of all the taxable property in the township at the date the debt was incurred. The first question, then, is, when was the debt incurred? The power of subscribing to the railroad was first inserted in the act D.ecember 21, 1883, (18 St. at Large, S. C., 365.) The exercise of the power was made in the vote oithe people of the township in June,1886. The bonds were executed and deposited with the Boston Safe Deposit & Trust Company as escrow 14th January;'1888. In Floyd v. Perrin, 30 S. C. '1, 8 S. E. Rep. 14, the supreme court of South Carolina decided (April term, 1888,) that township bonds;of this character, and issued under like authority, were invalid. In December, 1888, (20 St. at Large, S. C., 12,} the general assembly passed an act to provide for the payment of township bonds issued in aid: of railroads in this state. The supreme court discussed ,this act in Statev. Neely, 30 S. C. 604, 9 S. E. Rep.·
WELLS, FARGO " CO. t1; UNITED STATES.
337
864, and held this act to be constitutional. 'Construing the act, they held that in passing it the legislature exercised its own· original power, and imposed a tax on the property within the bounds of the township for the purpose of constructing the railroad within it; that is to say, the people of the township having by their vote expressed their willingness toiubscribe to and tp be taxed for the construction of the railroad, by coupon bonds, payable with certain interest, and at a certain time, the legislature approved this action, pr{YJYl'io vigore imposed the debt upon the townsQ.ip, and the levy of the, tax upou the taxahle prop&ty therein. The debt and the tax owe their authority to this act of 1888, and the date of this act must be taken as the time when the debt was in1888. What was the asseslled value of all the taxa.bleproperlj in this township at. this date? As,SeSs,ed value,-not ita mated or actual. value,--but,what was the valuation fixed upon it by competent authority for the purposes of taxation? From the agretld state-· mentsof facts it appears that for the fiscal year ending October 31, 1888; the value. 'of taxablepropettyother than property within Cane Creek township was 8215,634. 'That during 'the next succeeding y,ea.r it was $213,866. We wi:Ut8.ke the first, $215,634. are tW() railroads in that township, the Chester &: Cheraw and ,the Charleston, Cincinnati &: Chicago Railroad. The part of the first-named railroad within this· township is, and always has been, assessed at 816;500. T/jtal, 8232,134. The property ofthe last-named railroad was not assessed for 19th February, 188.9, after the passage olthe act of 1888. It eaqnot be included in the basis upon which the percentage estimated in :order to ascertain if this subscription is within, Ule constitutionallimikTaking, therefore, 8232,134 as this basis, 8 per cent. is $18,570.72 less than the $19;000. The act having created a debt exceeding in amount the limit fixed by the constitutioD, the whole debt is invalid. The court cannot scale it down so as' to bring it within the lawful limit. Hedges v. /JW:orI, ,Co., 87 Fed. Rep. 30.4. The bill be dismissed, and it is SQ· ordered.
WELJ13, FARGO
& Co. ,.
UNITED STA'l'II:L
(C4J'C1.&U Cowrf., N. D. CaZVornia.' .January 81, 189L) OL&nnJ.GAnflT TKB
UJn'1'JIl) BTJ.TlIlS-RuSBD PBNSION Cmlou; Where a penlion check'drawn by mistake forll,280.20, instead oUlt,1a 11UJOl'lIe4 by the payee to a bank, aDd by that bank indorsejl for, col1e(ltionto anoQler, whicb it to the aaailltant treasurer who paya it, the money be recovered .froll1 the collecting bank which has p;Id it over to ita prinelpal, 'the forwarding bank·; and, where the aaailltaat treasurer retains out of money due the collecting bmk the United Strotea the of the oheck,auoh bank. ma,J reoover It fIOIIl the
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