UNION LOAN & TRUST 00. tI. SOUTHERN' CAL. MOTOR ROAD CO.
267
in that case, is legally bound to make a good title. It is legally liable to perfOfm its part of the contract, 'issue t'hepatent. as required by the statute. The United States are 'therefore responsible to. the railtoad company for the land, or its full value. By the mistake of their officers, tlu'lY have put it out oftheir power to comply, with contract, and they are interested to the full value of the land insettfng aside the listing and patents n'sulting from their mistakes, or having'them judicially adjudged inoperative and void, in order that they may relieve themsel VI'S from their liability."
Time does not run against the government when it is a party to the suit, unless it be a Illere nominal party. The reason for this rule would seem to apply where the suit involves, a liability of government for its failure to do what 'the complainant bas persistently and continuously sought to get it to do, and wha.t complainant seeks by the suit to accomplish. . Demurrer overruled; with to defendants to .aDswer within the usual tUne·
.Umol,'i Lou &:
TRU&T
Co.
tI. SOUTHERN
CAL.
MOTOR RoAD
(Circuit COUrl,B. D. California. February 8, 18l19.) 8TBJDET RAJLW.us-FoRECLOSURE OJ' MORTGAGE-REOKlVERB.
In tile foreclosure pf a mortgage aA'ainst a street-railway company, tbe J'8Ceiver will ,not be directed to pay oqt money iohis hands for the purpose of Kradlng and macadamizinA' the street along and between the rails, in accordance with an ordu of the tpwn trustees, when there is no lien in favor of the town for such an expenditure.
In· Equity. Suit by the Union Loan & Trust Company, trustee, against the Southern Calilornia:Motor Road Company, to loreclose a mortgage. Appliclltion by the city of San Bernardino for an order directing the receiver to payout certain moneys {or, grading and macadamizing the street. Refused. . . Rolfe &F'reeman and John BroWlt, Jr., for city of San Bernardino. S. M. White, for receiver. ' E. H. Lamme, for complainant. Ross, District Judge. This is an application by the city of San Bernardino for an order directing the receiver in possession of the property of the defendant company to payout certain of the moneys in his hands, as such receiver, for the purpose and under the circumstances hereinafter stated. A part of the property of· the defendllnt complmy of which the receiver took possession under his appointn1ent was a street railroad o,n E street. in said city, built by R. W. Britton, the assignor of the motor road company, under and by virtue of an ,ordinance of the city granting him the right to do so, which oid not the kind or character of rails to be used, or how they should be laid, out did require that7"""" "Said Buttonshallmacad!.'mizethe eritire length of the street used by J;lja tracks between the f'dils, Ilnd two feet on each side of said' track; also be.'
268. ,
.J'EDERAL REPOR'Qj:R,
vol., 4,9. ,
tracks at those points,wbere there be turn-outs, sido-tracks. or switches, and keep the SRUle ,constantly, in repair. flush with the grade of the street 8S It now is, or U13Y hereafter, be established by the board of ,With good crossings." , The road was built with T rails laid on ties. It was operated at heavy loss by Button's assignee, the defendant motor company, and, although the losses were much reduced by the receiver, its operation continued a non-pll-ying business. On the 21st of April, 1891, the board of trustees of the city passed a resolution of intention to order a certain portion of E street.on which the street railroad was constructed to be graded. and macadarilized J except such portions thereof required by law to be kept in repair byariy person orcoqlpany. having railroad tracks thereon; arid' 'ori.'the 4th day of August following, it ordered the work to be done. bqar,dof trustees then notified the, receiver to remove the T rails and in" '\faa on the road,and reptace the'in with stringers and fIat The receiver, in acknowledging the receipt of the notice, declined to comply with the requirement contained in the order of the board, upon the ground that it was contrary 'to the franchise under which the road was constructed, and informed the trustees that, l,lpon t1;le return qf the jqdge of the::eourt''to the d1strict,-liethen being in San Francisco 'holding court,-he (the receiver) would recommend ap abandonment of the franchise. not only' as respected the portion of thestl'eet proposed to be graded and macadamized, but for the .entire line. A few days after this, to-wit,. 0!il·the,25th of August,the board of trustees passada resolution directing, dtfi0n/toth,:er things, tha.t R. W. Button,hisaucce:ssora orassignS J grade and¥ilicadamize that portion of E street mentioned in thel'esolutions of April 21st and August 4th, between the rails and for two feet oneach thereof. On the 8th day of September, 1891, the court, for good ciluse shown; made an order anthorizing and directing the receiver, among other things, to abandon the franchise under w4ich the road was constrtictedand operated, and to remove the'rails and 'ties from the street, whIch he did. The position of the city nOw is that there is an' equitable obligation upon the defendant company to pay for grading and macadamof August25th, izing that-portion of the st\'eet described in the falling, between the places where the rails existed before their removal, and for two feet on each side thereof. . In the factth,at the board of trustees, without the slightest legill or right so to do, adopted a'n order requiring the receiver tb take. up the Trails and ties with whic4 the road was built under the fril.l1chisetlleretofore granted to Button, and to replace thern with stringera and ffafrails, it is by no means clear that the equitable obligation by the city exist.."!'; for such a costly change in the consh-ueiion' ,'ot' a non-paying road would probably have been worse than its confiscation. And when it is' remembered' that the hoard of trustees notified,the rEiceiver to make that change without any right to do so, it is n6t easy to see any good ground for complaint on itR part that the obrails and ,ties were removed from the street, nor any just ground to complain that they were not, replaced witb.stringers and.
UNION LOAN & TROST
co. ,!,. SOUTH!ERN
CAL. ''MOTOR ROAD 00.
269
rails. But if it be conceded that there is some sort of moral obligation resting upon the defendant company to pay for the grading and macadamizing in question, it would not, upon well-settled principles, justify the court in direCting the receiver to make such payment out of moneys in his hands. It is not pretended that any lien exists upon any of the property of the defendant company for the proposed work. Nor is it pretended that there was any specific contract on the part of the company for the payment of the proposed work. Even if there had been such a contract, the receiver could not properly be required to pay the money as requested; for, as there is no lien, such payment would be,in effect, to give a preference to such indebtedness.' High on Rec.§§ 391, 398; Ellis v. Rauway, 107 Mass. 1. In the case of Southern E-hp. eo. v. Western N. a. R. Co., ,99 U. S. 191, the contract between the express company and the railroad company was that the latter should give'tothe former the necessary facilities for the transaction of all its business upon the road; forward, without delay ,by the passenger trains, b0t.h 'ways, all the express matter that should be offered jdo all in its power to promote the convenience of· the express' company' both at. the way terminal stations;' and carry free of charge the messengers:in charge of, the expresS matterj·and the offiders aild express :compll.ay passingovet the rolid'on express a loan by the company to the raIlroad company of:$20,OOO, to he expended in repairs and equipments fOf the road, the loan to bear intereshtthe rate of 6 :percent. per annum, and the payment of50eents per 100, pounds for all express, matter carried' ovet the road,' tabe 'applied in discharge of the loan and interest. The contract was to continue for one year frottl the 1st day of January, 1866, and until the ·prinCipal and intetest of the debt'should be fully paid. The bill averred that the receiver had refused to carry out the contract, and that of $20,000, and a part of the interest, were unpaid. Among other things, the court said: '' "There is another objection to the appellallt'scase'whicb is no less eonelusive. The road is in the hands of the receiver, appointed in a suit brought by the bondholders to foreclose their mortgage. The appellant has no lien. The contract neither expressly nor by implication touches that subject. It is not a· as insisted by counsel., It is simply a contracUor the. transportationof persons and property over the road. A specific performance by the receiver would be a form of satisfaction or payment which he cannot be required to make. As well might he be decreed to satisfy the appellant's demand by monej' as by the service sought to be enforced. Both belong to the lienholders, and neither can thus be diverted. The appellant Oan therefore bave no locus standi in a court of eqUity." The application is denied.
270
I'EDERAL REPORTER,
vol. 49·.
UNITED STATES
v.
CASE
et
(DiBtr;Cct Coun,N'. D.New York. FE!bruary 19,1899.) ACTION
in theajlQounts of :a postmasWz:. "reinsufllcient to support a jUdgment for the United, Statesln.anaction on his bond, if the "said ofllcials act io a judicial and not in a inlniaterial clapacity in arrhing at the balance due. . :;'
. Ex parte accounta of ofllcillls cit the post-oflloe department, ascertaining a deficit
ON, iPOS'J;'JlA.STER'S
BoNri-EV:IDENCE-Ex PARTE SETTJ,EMBNTor ACCOUNTs·
At Law. Action by the United States against Riley W. Case on his bond as postmaster, to recover anaI1Eiged deficit in his accounts. It was tried'at the'.term.of this'court held at Rochester, May 12, 1891. The plaintiff to prove its case depended solely upon statements of aocount: made :by·theofficials: ()f the post.offiee department, and certified as 'required :oy,,}aw. ' It ,,;li.s contended on behalf of the plaintiff that these to estahlish:1iability under sections 886 aild889 of the R,evised Statutes, and thaact of June 17, 1878, (208t. MLarge, pp. 140,.141,) which latter act providescase where the postmaster general shan. be satisfied that R postmaster hallrnade a false of buainess. it ShliH :be within his discretlon to ,withhold. 0l'lBuch and, to allow. Rny compensation under be Play def:m ressolliibJe,." . . . , :A verdict pfo jo/mQ, for .theplaintiff,the ,court reserving the of the objection8until the heaJ'ing of the mo. IDlljd!}, to the verdict and for·a new tiQnwbicq trial. This motion was thattbeaccounts oft'ereq·:diq pliO\1ea cause of actiODjand, 8econd,that the matters in \>etween .hlld, betore t.h.e commencement of this aotioQ" beep fully allo,w:edaQd settled. T,be district attorney withdraws oppqsition to themotiol1 upop. the aut,horityofU. S. v.Hutcheson, infra. Motion granted. . ' ."D,. 8.. S. Atty., and John E·. Smith and Prank Ferguecm, Asst. U. 8. Attys. Walter S. HubbelJand John Van VoorhiB, for defendants.
a.
aCCQunts offered in evidence by the plainthede(elldants into,4el.>t, because,theofficia,ls of the post-office the,delEmnants in gross with "commissions illellproperty,UlegaJlyretained,"withduta wort I of proof, 8l)lfar as the accounts ShbW, the charges; These officials have tried the question at issue between the department and the postmaster, found him guilty of malfeasance, assessed the damages"againsthim and certified their findings. The evidence, if there was any, on which these findings are based, has not been returned. There is nothing to show what the property was tbat the postmaster is accused of retaining im prop. erly, or its value, or the reasons which induced the officials of the department to make the charges relating thereto. The account does not show why the commissions are illegal. It contains nothing but the unsup-
,,.' QoXE, District ,J