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
, .
IiltawB.
..
FEDERALREP.QBTll:R, vol.
45.
'At Law,' Findings 01 faot; ,.," ';': . ' . . 'Thiscatise .having come' on"regti1arly before' tlle court, without the iritetventionof a jury,'a: jury hitVilng been duly waived by stipulation in writing: 0( tlie eh3rk of thiseourt, Mr. E.S; PillsburY:'appMring as counsel fO'r'plaintiff, and John T. Carey, United States" district :attorney , lI.S cormseHor the defendaritjand evid'ence oral 'been ititrodueedby the re:>pective parties, and and the court the 'e'ause having' been the and th,:eevidence, finds the fol,,:
.;'dJ "
t ',:
.'
"'i:
>,
c'
:' '. : "
"; H
,:", . SPECIFIO
FfNbIN\:!is
OF F AOTS.
':, (1) I'll at at)all :the: tinl'es l(erejI1i\lfter and now is a doingnlisinesa'8:s an express com· tiorporatIon dulyorganizaa .. andpengaged ,as, of gobi.silver and other chattels from pI3<le,' to·,pllLce hI tM United Stlltea, o/lindbae its iOfficeand pri nci palplace and coupty. · gfCalifprnia. of (2) .l'!lll,,t .. . ,. . to ..·.. uel' .. ,Il .. ,st.at.es be.ca.me in.debt&! the' for'seryipes. by \t as al'ldQlrBliid:PMeml>er claim for that -amount. and ISSUt!ti' a drdftl; '12.084, for. sllld"sum to said company 'rpa:yablet'bt order.. ' ThatibnJanuary '6,1888, ..its employesdH'eseilted .sald, at the IhS. U·. S.tr!*l8Urar ptS.l,n ,li'IftAClllrCq, ,at, til at ,tilDe . then received and . ,tge said employe presentutg tIle'same th,i!'sum of '$115.55 ;itl'cssh; together I with ,a certain cbeck drawn'Dooember 10; U.' 'agent at Sail Francisco.. ta .the order of bpe for.tM 8um"of$1.280.20,as :expl'eBsetlooon tbidaceof ·:Ilaid cliect;;:vI:hen received, by plliintiff and paid by .&R\d, ch!lck.J\nd,thtl. payment said assist\i.P.t . ,trel\SJ.l.,.r.er. i·.. p.e .,.i l1a.ft.e m,0. . . .., ..r. . . r.eflil.r..r.e.d .to..a.n.d deSC.ribed.· . s,aid' f,uIlpaYlIient of draft, t1).e t(>ma;ke ''any' othet inannel'iahd arbitrarily draft; at,J4 told said employe that the officers of the company would actionl thereupoll, the employe went away with said check and lhe said sum of $715.55. and reported the transaction to the president of the plaintiff, who thereupon consulted with its attorneys, and forthwith sent said employe batl'k:to'the said'assistant treasurer, with instructions to tender back to him the said check and said sum of $715.55 cash, and demand ,the -return of said draft in its favor for $1,995.75, or full payment thereof, which was done by said employe, but said assistant treasurer still declined to give up said draft or pay it in any different '!ay; f.,cover the amount unpaId on saId draft, to-WI.e,· $1,280.20. .' .'. .,. \ (3) Touching the check so turned in by the said assistant treasurer in pay.. ment of said <\raft t,q.tb;e and referred to. the court finds the facts to be. that on December 22, A. D. 1886, plaintiff received i the, ::,!3il14tof! 1)ljln vel', CQlo., said check for its> faQ6for $l i 280.20,inftgures .andwriting.and ap:,by'its payee,l;Itmry bo.rethef\li1;l;ier,lndorsemMrt#rom 'lull ·· Ba:nk.$an Francisco. or orcler·· fof ,accoul1l;.F·ir.at'iN&tionld,.Bank'otDenver;G.'E. Ross, Cashier;'" and thereupon plaintiff indorsed thereon, .. Wells, Fargo ,8(;00., brEL Wllds worth,
m
L
"", I
WELLS; FARGO &: CO.' Vo'UNITED STATES.
339
Tieas.;" and on said 22ddayof'Deeeniber, 1886, presented it.for payment to said assistant treasurer at" San Francisco, who then accepted said,check and paid -to plainti:ff$1,280.20thereon, which said;sum plaintiff received and im. mediately paid over, in the ,usualcours6 of business, to its; principal, said First National Blink of Den'ver; from which it'was received for the purposes 'Of 'collection,only. Thereafter,and January 12, 1887, the said IIssist;.. ant treasurer first informed plaintiff that said check had been repudiated by the makefjsald U. S. pension agent. ,who claimed that it had been' issued for the sum of $18 only. Plaintiff then informed said treasurer. which was true, that the check had been collected in good faith, a)ld the proceeds long since paid over to said Denver Bank, its principal, but suggested to said treasurer to sue it for the amount of said'{)heck, Sl) that if its Habi ity was established it ,might have recourse upon itsprincitJal, but said assistant treasurer declined to do this, and on January 6, being more than one year after tJle Ilaymertt of said check, resorted: for hiS reimbursement thereof from to the means of ,When toaue the,plail)tiff, said assistant tre3$urer Brookastated t,o the, casIller of the plaIntiff that the check hall, in his op'i nian, been mad 1'. o.tit by mistake in the Offill6 the pension agent, for and that it plliintiff sued said sion agedt;:it would, in his opinion, ha'Ve no difficulty in establishing that fact. Said Brooks then also further stated to said cashier that said cheek had paidlLt tlJ6 treasUJ;Y cl1eclt;for $1.280:20. and. that, nothing upon its .fa<'e was then discosered to suspicion concernfng the same in aI!y partiCUlar. It further appeared the trial that said Brooks turned this check over to Pension Allen on January 21. and that it Was thereafter out of, the 'possession of 'silid treasurer: for BOrne months, d uri ng which ti mes it was,discolored aniin! ateriallyehanged in appearance; that it tinally cameba,ck to said remained, in his :us.sllch treasurer for uponth,t!]}laintiffon January as before stated., 'fhe court th(l testImony and t':JEpE;!rteYldence given upon the trial, and from it!jown of that it was iss \led in blallk to amOll nt. for the. sum of, '$1,280.20; that there are dollar-mark andflgtltes $1,2l:l0.20' ! in ofsahJcheck. 'which ligures bavtf never ,been I nany mamlt'r'ultered or tampered with, and there are also:the w.ords '''fwelv{'!nllldred and eighty dollars" in writing upon the:face of:l:l'\lill check, never been. erased orraiSe(l,sO that was eitlWJ" issued in blank <lS to amoll Hen ry P. ¥etcidf written U,lerp,i n as 'aod)n terlDs,payllbJetohisol'det, ()r It wils issu'ed by mlsLakeand in advertence,for the BUm 'ot' $1.280.20, instead ofSl8, the amount due the payee at: that time; 'that it was nota raised check when paid; that therewas'ftothing upon the of said check to e:x:cite suspicion or attract the attention of Ule plainof thE;! as,sjstant at !::lan tR: its, gequipeness, and, the was then collected in good, t'aitjl by the plalQtifi';, saldcheckwlIs drawn upon"a r,egular iiai4. lor thatpnrpose bv the S. goVernment; it bore the nlll1Jber9B,3D9; aljparet1tly as one of at the left end Words "Uiiited 8tate':i Agency forPayitrg. 'Pensions;'" WIth a design beating ,the wl)I'ds' "Depal'trnent:of; vile ,the. top·. and ;tothe, right of .it, were thewol'as.in prominent Assistil\ot l'er:()ft.h,e U oited engJ!ll.vl'1c;!ltPOll the .papt'f, uel(,lW, Cal.," in large red pril)wd, and bf;:Jt;lw Cal,.. 'pec. 10, 18136," fig-Ii the date" Dec,' 10,' 1886, I. eVidt'ntly behlg' done by a stalD1>.lind, tile rf'st being p'rintoo i then ftiJlows in Pay to the urder Of, .. 'IItHf after this the na,me P..',Metcalf'" and'bt'lO'W ',this· name,i,n wl"iting'''Twelve h,unllred &'. being In .and :the )Vurd,;"1)olJaril';Inpont
840
FEDERAL .REPORTER ,
vol. 45.
following; .then the name "T. H. Allen" over the words "U.' S.Pension Agent."also.in print, and the "$" priuted near the left corner; followed by the figures "1,280.20." When presented upon the trial said check also bore upon its face the words "Paid Dec. 22. 1886. ABs't Treasurer U. S., San Francisco." in the uSllal form of:a round pay stamp. This check was signed in blank by the pension agent, and by him left to a clerk in his office to be filled in and issued to the pensioner. (4) That no part of said sum of $1,280.20 has ever been paid to the plaintiff. E. S. Pillsbury, for plaintiff. John T. Carey, U. S. Dist. ,Atty. Before SAWYER, Circuit Judge. SAWYER, J. The court is of the opinion that the plaintiff in this action is entitled to recover,which opinion is based upon the foregoing specific findings of the facts tqerein a,nd the following conclusions upon the questions of law invplvedin the case, that is to say: When the Unite<i States become paper, they incur all the rellponsibilities of private persons under the same circumstances, and are bound in any court, to whose jurisdiction they submit, by the same principles that p;6vernindividtutls in their relations to such paper. The check of the. United States. pensioll'agent, in question, was commercial paper; it is the .duty of the pension agent, under the law in such cases ,provided, to draw his check on the proper assistant treasurer or other designated depositary of the United States in favor of the 'pensioner, payable to his order, and transmit the same by mail, directed to the address of the pensioner entitled tht;lreto; he is the authorized agE:'nt of the United States for that purpose; it is iikewise the duty of such assistant treasurer or other designll.ted to pay the same; it is the .check of the United States, and a negotiable instrument. When the drawer has ,made his check in such a careless or incomplete manner' that a material alteration may be readilyJ accomplished without leaving a perceptible mark, or giving the instrument a appearance, he himselfprepares the wlty for a fraud, if committed, he must suffer for, and not the innocent person into whose hands the paper may come in the regular courSe of business. A negotiable instrument so indorsed as to ,show to the payor thereof that as to the person presenting the same for payment· it is in his hands .for collection only, is notice to such payor that the indorsee has no authority to do aught but collect the amount thereof fortha principal and pay it over to him. ,Money paid by .tQ a person acting as agent for anotheI;and by him paid over to his prinoipal without notice of the mistake, cannot. be recovered back from 'the agent. Money paid on a forged, or raised, or altered negotiable instrument, carrying nothing suspicious upon 'its face, to a person known to. be acting as an agent, and by him paid to his principal in ignora,nce.of the fQrgetyor alteration canpot be recQye:J:¢d :back from the ,1hat the check in question, nothaving'b,ee.n ,raised by erasing the original amount and inserting a larger Sl}.(ll was not :a forgery in that sensei and having been sent out by the maker, through
CARPENTER fl. UNITED STATES.
341
a.ccident or mistake, either in blank, or for the amount of $1,280.20, and there being nothing upon its face that would indicate to the Denver Bank or the plaintiff that there was anything wrong about it, the maker should suffer for this mistake; the loss is the result of the negligence of an authorized agent of the United States. That loss should fall upon the party that occasioned it; the government having paid this check to the plaintiff under these ciroumstances and without any fraud on the part of plaintiff, is not entitled to recover or retain the money as against the plaintiff. The name of the payee in this check was shown upon the trial to have been written therein by a clerk in the office of said pension agent,and there was no perceptible difference in the writing upon the face of the check; the paying teller at the United States treasury who paid the check testified that in so doing he was governed by his knowledge of the handwriting of the pension agent and his clerk, whioh he l'ecognized upon the face of ,the check when paying the same, and thaf the same then appeared to him to be a genuine cher.k from the office of said agent; besides, the check was indorsed for account of the Bank of Denver, so that upon its face it showed that plaintiff was merely acting as an agent to collect the money and pay it over to its principal,and on thai ground it is also entitled to a judgment. . ; It is therefore ordered,that the .plaintiff in this action have and recover from the defendant the sum of$1,280.20together with legal interest thereon from January 6,1888; to January 31,1891, the date of this. decree, and amounting to $275.04. and making, for .principal and inter.est, the sum of $1,5,,55.24. Let judgment be entered accordingly.
CARPENTER 11. UNlTED STATES.
Oowrt,·8.
p. Qhi£Q.
lY. D. February 21, 1891.)
1.
CLAIMS AGAINST UNITBD STATBS7"'"UO OJ' PBIVATB PROPERTY.
Where a government employe, b,avinlJ:' property in possession, .for a certahi' purpose, by consent of the owner, uses It by order of biS superior ofllcer foranotber purpose, there is no legal implied contraot of hiring for government use. In such case, wbere the owUer recovers judgment for conversion of the property' against tbe employe, the latter cannot sue the .United States for indemnification, since Act Congo March 8, 1887, 81111, S1. giving the court of claims juTisdiction of all claims on auy contraot, exprell8' 'or implied, with the United States, expressly excepts cases sounding in tort. . . " ', '. . '
'2.
SAME-CLAIM!I BX. DELICTO.
At Law. ..359, § 1, provides that the, court of Act Cong. March 3, 1887; C ·claimsshall have jurisdiction to hear and determine all. claims founded upon "any contract, express or .implied, with the United States, or for .damages,liquidated or unliquidated,in cases not sounding in tort, in of, which claims the party would be entitled· to redress against·