CITY OF SOUTH: ST. PAUL V. LAMPRECHT BROS. CO.
449
sell it, and still continue in the possession of it." Green v. Van Buskirk, 7 Wall. 139; Hervey v. Locomotive Works, 93 U. S. 664; Martin v. Duncan, 156 Ill. 274, 41 N. E. 43; Harkness v. Russell, 118 U. So 663, 7 Sup. Ct. 51; Pullman's Palace-Oar Co. v. Pennsyl· vania, 141 U. S. 18, 11 Sup. Ct. 876. It is urged that while the federal courts follow the rule of the state, that a transfer of per· sonal property, where the vendor is permitted to remain in possession, is fraudulent and void as to creditors, the federal courts are not bound to give heed to the opinions of the supreme court of Illinois upon matters of fact, and that what will constitute a sufficient change of possession must necessarily be determined upon the facts of each case. That may be conceded; but the court here having determined the fact against the appellant, whether according to the weight of the evidence or not, the finding, by the authorities already cited, cannot be reviewed. There are other propositions embraced in the finding, which, ,it is urged, are sufficient to support the judgment rendered, but the, need not be considered. The judgment is affirmed.
CITY OF SOUTH ST. PAUL v. LAMPRECHT BROS.
CO.
(Circuit Court of Appeals, Eighth Circuit. June 27, 1898.) No. 1,043.
1.
VALIDITY OF )lTATUTES-SUBJECTS EXPRESSED IN TITLE.
a
A constitutional provision that no law shall embrace more than one subject, which shaH be expressed In Its title, does not prevent the legislature from inserting In an act any provision which Is germane to the general subject to which the act relates. It Is only Intended to prevent surreptitious legislation, and the union In the same act of Incongruous matters, having no natural relation to each other, or to the general subject with which the act deals. An act revising and amending the charter. of a city located on the bank of a large river Is not obnoxious to a constitutional prOVision limiting legislative measures to one SUbject, merely because it authorizes the municipality, among other things, to li5sue bonds to defray the cost of a railroad and wagon bridge across the river. The issuance of bonds containing the representation that they are "authorized by" a certain act of the legislature estops the municipality from tendering proof, as against a bona fide purchaser. that they were not so authorized, and that certain requisite preliminary steps were not In fact taken. A charter provision authoriZing a city situated on one bank of a river to Issue bonds to aid "in defraying the, cost and expense of constructing a combination railroad· and wagon bridge" is sufficient authority for issuing bonds to aid in building such a bridge across the river in question, though part of the bridge will necessarily be outaide the corporate limits.
SAME-ACT AMENDING MUNICIPAL CHARTER.
a.
MUNICIPAL BONDS-RECITALS-BoNA FIDE PUUCHASERS.
4. SAKE-AUTHORITY TO CONSTRUCT BRIDGE.
l5. SAlIE.....,BoNA }<'IDE PuRCHASERS.
A purchaser in the open market ot mllnicipal bonds purporting to have been Issued to aid in constructing a brldgeacros8, a naVigable river la entitled to presume that the secretar7 of war had approved the proposed location of the bridae. i I I , 88F.-29
450 S.
88: 'FEDERAL ",' .'
,REPORTERI.;
Under a 'authorizing, th;e, ,Issi,ance of bonds "payable at such times nM to excee<l' '30 years" as may be determined, the ,bOnds arenof'vold when they ruri 30 years from the time 'they: tirst begin to , bear Interest, though this Is more than 30 years from the time they were executed"
'
,
, i'"
.
of
In
Err6ito the Circuit 'Ci5nrt of the United States for the District ,;' ";' ")'4
"Albert Schaller, for plaintiff in error. O. M.Metcalf ,and Henry C. James, for defendant in error. Before SANBORN and TIIAYER, Circuit Judges, and SHIRAS, District Judge. ' THAYER,Circuit Judge. This was an action on coupons detached from 74 municipal bonds which were issued by the city of South St. Paul in the year 1891, to aid in defraying the cost of constructing a railroad and wagon bridge across the Mississippi river, on which said city is located. The case was tried in the circuit court on a written stipulation waiving a jury, and the trial judge made a special finding of facts. The questions to be considered, therefore, arE' those which were raised during the trial by exceptions to the admission and exclusion of evidence, or such as are comprehended by the general inquiry whether the facts found by the trial judge are sufficient to sustain the judgment. Searcy Co. v. Thompson, 27 U. S. App. 715, 13 C. C. A. 349, and 66 Fed. 92. We will consider them mainly in the order in which they have been discussed by counsel. The first proposition to be noticed is the contention of the defendant: city that the bonds from which the coupons were detached were issued without authority of law, and are therefore void. On April 23, 1891, the legislature of the state of Minnesota passed an act entitled "An act to amend 'An act to incorporate the city of South St. Paul,' Il8 amended by the several acts amendatory thereof, and to authorize ¥;Bid city to issue bonds for various purposes." Sp. Laws Minn. 1891, p. 674, c. 58. This act altered various provisions of the law under and by virtue of which the city of South St. Paul had been incorporated, and was in the 'nat'llre of a revision of the existing city char· ter. All the provisions of tM act relMed to the powers which the city might exercise, or to tlle mode manner of their "execution. '1'he eighteenth section of said act was1lS follows: "The "common council Is hereby authorized to Issue the bonds of said city for the purpose ot' aiding hi defraylnjf the cost and expense of constructing a combination railroad and wagon bridge, or both, as may be determined hereafter, to an amount not to thousand dol1a;ts ($75,000.00), to be Issued In such denominations' alldpayableat such thnes not to exceed thirty (30)years,1I.ndat suell rate lOr ,tilterestnot' to" exceed i six (6) percent. per annum, and at sUch place'as may ," ,,' i ' l'"
t1,.
It was tbenprovided,insubgtanee,tllat; before ,the bonds should be il'18ued, the common council, by a three-fourths vote of all itsrnembers"shouldl:\gree upoJ?, ,3. "proposal or constructing" the ,sbQuldem.bc;ldy an ,its total, cost; that the proposition to issue bonds should be submitted toa "popular vote of
for'
CITY OF SOUTH ST. PAUL ,V. LA,MPRECHT BROS. CO.
451
the electors of the city, at a special election, and receive the approval of a majority of the electors voting at such election before the bonds were issued; and that such election should be called within 60 days after the adoption by the council of the proposal or plan for building the bridge. It is claimed by counsel for the citJ", as we understand, that, because the aforesaid act contained a provision conferring power to issue bonds for the construction of a bridge, it embraced more than one subject, and was therefore obnoxious to section 27, art. 4, of the cOllstitution of the state of Minnesota. which declares that "no law shall embrace more than one subject which shall be expressed in its title." This contention, we think, is based upon a misconception of the meaning and purpose of the constitutional provision in que;,;tioIJ. It was not adopted to prevent the legislature from inserting in an act any prov,ision which is germane ,to the general subject to w1li('h the act rl:'llites, but to prevent surreptitious legislation, and the union in same act of incongruous matters, which have no natural relation to f'ach other, or to the general subject with which an act deal;,;. City of Omaha v. Union Pac. Ry. Co., 36 U. S. App. 615,623,20 C. C. A. 219, and 73 Fed. 1013; Travelers' Ins. Co. v. 'I.'ownship of Oswego. HJ ri. S. App. 321, 332, 7 C. C. A. 669, and 59 Fed. 58; Tabor v. Bank, 27 U. S. App. 111, 10 C. C. A. 429, and 62 Fed. 383; Johnson v. Harrison, 47 Minn. 575, 577, 50 N. W. 923; Montclair v. Ramsdell, 107 U. S. 147, 2 Sup. C1. 391; Cooley, Const. Lim. (6th Ed.) pp. 169-172. and cases there cited. This provision of the constitution ought not to receive a narrow or technical construction, which will embarrass legislation by making laws unnecessarily restrictive in their scope and operation; but. like all provisions of the organic law, it should be fairly and liberally interpreted and enforced, so that it will serve to prevent the abuses at which it was aimed, without placing unnecessary restraints upon legislative action. An act like the one now in hand, which revises and amends the charter of a city located on the bank of a large river, is certainly not obnoxious to a constitutional provision limiting le?:islative measures to one subject, merely because the act authorizes the municipality, among other things, to issue bonds for the purpose of defraying the cost of a railroad and wagon bridge across such river. A provision of that kind has a natural and an obvious relation to the general subject, to which the attention of the legislature was for the time being addressed, and for that reason such a provision must be pronounced germane to the general purpose of the act. We have no doubt that the act of April 23, 1891, would be pronounced valid by the courts of Minnesota. City of St. Paul v. Colter, 12 Minn. 41, 50 (Gil. 16); 'dity of Winona v. School Dist. No. 82, 40 Minn. 13, 41 N. W. 539; Boyle v. Vanderhoof, 45 Minn. 31, 47 N. W. 396; Johnson v. Harrison, 47 Minn. 575, 5Q N. W. 923; State v. La Vaque, 47 Minn. 106, 49 N. W. 525; Willis v. Mabon, 48 Minn. 140, 155, 50: N. W. 1110. A variety of other questions are suggested in the brief of counsel for the city, and have been argued at some length, which" for the sake of brevity, may be disposed of It is ,contended, in substlll)ce, that the act of Ap;ril 23, 1891, ;Qidnot a'Uthorize an ,liIsp.e
452
8S FEDERAL REPORTER.
of bond. to bufld a bridge like the one involved in the case at bar, which was. partly outside of the corporate limits of the city; that it did not warrant the issuance of bonds to build a bridge across a navigable stream unless the consent of the secretary of war to the proposed location of the bridge had been obtained; that the common council did not adopt a proposal or plan for building the bridge, within the fair intent and meaningofthe act of April 23, 1891, before the bonds in controversy were issued; that the proposal or plan, such as it was, contained no estimate of the cost of the structure; that the original resolution of the council adopting such proposal or plan, if the same was adopted by the council, was never signed by the mayor of the city, as it should have been to become operative; that William Thuet, who signed the bonds as comptroller of the city, was not at the time a city officer; that no valid election was held to obtain authority from the electors to issue the bonds; and that the provisions of the charter of the city of South St. Paul relative to the signing and publication of ordinances and resolutions were not followed in so far as the ordinances and resolutions relating to the issuance of the bonds in suit were concerned. It is to be observed, however,that some of the assumptions of fact contained in the foregoing. propositions are contrary to the special finding which was madel;y the trial judge. The trial jUdge found, among other things: "That the common council of South St. Paul, by a vote of more than three-fourths of all its member!!, agreed to adopt, and did adopt, on or about May 7, 1891, a tiroposal or plan for liull(1ing a combination railroad and wagon bridge across the Mississippi river, at or near South St. Paul, which proposal or plan stated the plan and for constructing said bridge, together with an estimate of the totl\l cost thereof, and that on the same date said common councIl of South St. Paul determined to submit to the qualified electors of stUd city the proposition of issuing the bonds described in the complaint, In aid of said bridge, and gave due notice to the qualified electors that an election would be held In the several election districts to determine the question whether the said bonds should be issued, and that an election was accordingly held on the 28th day of May, 1891, at which time a majority of the qualified electors voting at said election .voted In favor of ISSUing said bOnds; · · · that thereafter, on May 28, 1891, at a meeting duly held, the common councIl of the city of South St. Paul adopted a resolution of which Exhibit B (the same being a resolution authorizing the issuance of the bonds in suit) attached to the answer is a true copy, and that the same was duly signed by the mayor; ·.· · that William Thuet was on the 29th day of May, 1891, the city comptroller of the city of South St. Paul; · · · that the plalntitr purchased the coupons described in the complaint before maturity, * · * and In the open market, and Is a bona fide holder thereof."
Inasmuch as the findings byt;he trial judge are not open to dispute in this court, but must be accepted as conclusive (Insurance .00. of North America v. International Trust Co., 36 U. S. App. 291, 302, 303, 17 C. C. A.. 616, and 71 Fed. 88), it follows that several of the contentious above.mentioned are without merit. But, if such was not the true, we think, that the defendant city is case, it is estopped in this action from asserting the invalidity of the bonds on any of the grounds last above indicated, by the recital which the bonds contained, and by the finding of the trial court that the plaintiff pur-
CITY OF SOUTH ST. PAUL V.
BROS. CO.
453
chased the coupons in suit before maturity in the open market, and is a bona fide holder thereof. The recital last referred to is as follows: "This bond is one of a series of seventy-five bonds, issued to aid In building a bridge, and authorized by act of the legislature of the state of Minnesota, at a session thereof held In the year 1891, and In compliance with a resolution of the common council of the city of South St. Paul, at a regular meeting' thereof, held May 28, 1891; and, to the payment of this bond and interest thereon, the faith and credit of the city of South St. Panl are irrevocably pledged."
'fhe bonds were signed by the mayor of the city of South St. Paul. They were attested by the city clerk, countersigned by the city comptroller, and bore the imprint of the corporate seal. It was a part of the official duty of these officers to execute and deliver the bonds, and, before doing so, to ascertain and determine whether all of the antecedent conditions prescribed by the act under which they were issued, such as the adoption of a proposal or plan, the holding of a lawful election, and the passage of proper resolutions or ordinances, had been duly performed. Under these circumstances, the fact that bonds were issued containing a representation that they were "au· thorized by act of the legislature of the state of Minnesota at a session thereof held in the year 18H1',' estops the municipality from tendering proof, as against a bona fide holder of the securities, that they were not so authorized, and that certain preliminary action necessary to validate the bonds had not in fact been taken. A power haring beeu vested in the city, by the act to which reference is made in the bond. to issue such obligations for the purpose therein expressed, an innocent purchaser was entitled to rely on the representation that they were authorized by the act, the same being a representation, in substance, that all antecedent conditions named in the act had been duly performed. City of Huron v. Second Ward Say. Bank, 30 C. C. A. 38, 86 :Fed. 272; National Life Ins. Co. of Montpdier v. Board of Education of Hmon, 27 U. S. App. 244, 2Gli, 10 C. C. A. 637, and 62 :Fed. 778; E. H. Rollins & Sons v. Board of Com'rs, 49 U. S. App. 3UD, 26 C. C. A. 91, and 80 Fed. {)92; School Dist. v. Stone, 106 U. S. 183, 187,1 Sup. Ct. 84; TaWIl of Colloma v. Eaves, 92 U. S. 484; Commissioners v. Bolles, 94 U. S. 104; County Com'rs v. Beal, 113 U. S. 227, 238, 239, 5 Sup. Ct. 433; Cairo v. Zane, 149 U. S. 122, 13 Sup. Ct. 8{)3; Evansville v. Dennett, 161 U. S. 434, 443, 16 Sup. Ct. G13; Commis· sioners v. Block, !l9 U. 8.686; San Antonio v. l\fehaffy, 96 U. S. 312. With respect to the· claim that the bonds in controversy were invalid because the br'idge as projected did not lie wholly within the corporate limits of the city of South St. Paul, and that they were fur' ther affected by the fact that at the date of their issue the secretary of war had not fixed the exact location of the structure or approved of the proposed location, it may be said, in this connection, that neither of these considerations can be held to have impai,red the validity of the bonds. Such considerations could in no event impair their validity in the hands of an innocent purchaser for value. The power to issue bonds, which was granted by section 18 of the act of April 23;1891, was doubtless conferred for the express purpose of
454
88 FEDERAL RlllPORTER.
enabling the .city to aid in the construction of a. bridge across the Mississippi river, a part of which structure would necessarily be on the opposite or east bank of the riyer, and outside of the city limits; and the bridge sO had in view was of as great advantl;l.ge to the city as it would haV'e been if located wholly within the corporate boundaries. Ample authority is found in the act for the construction of the bridge now in question. We are also of opinion that a purchaser of the bonds in the open market was not bound to inquire whether the secretary of war had approved of the proposed location of the bridge on account of which they purported to have been issued. The congress of the United States had authorized the bridging of the Mississippi river with a railroad, wagon, and foot passenger bridge "at a point suitable to the interest of naVigation, * * * at or near the city of South St. Paul." This act was passed on April 26, 1890 (26 Stat. 69, c.163). And, since the city had undertaken to aid in the construction of such a bridge across the river at that point, it was the duty of the city authorities to obtain from the secretary of war an approval of the plan of the structure and its proposed location before the bonds were issued; and a purchaser of the bonds in the open market was entitled to presume from their mere presence in the market that this duty had been duly performed, and that such approval had been obtained. The validity of the bonds is also challenged on the ground that they were issued to aid in the construction or equipment 'of a railroad, and were in excess of the amount which could be lawfully issued for that purpose, under section 15, art. 9, of the constitution of the state of Minnesota. That section of the constitution, in substance, limits the sum which any municipal corporation may contribute, in the shape of bonds or otherwise, to aid in the construction or equipment of any railroad, t05 per centum of the value of the taxable property within such corporation, to be ascertained by the last assessment on said property for state and county taxation previous to incurring such indebtedness; and it is assumed, in support of the argument in behalf of the city, not only that the bonds in suit were railroad aid bonds, within the meaning of the constitution, but also that the bonds were not issued nntil 1894, when the assessment of the city had fallen to a point which would not warrant an issue of bonds to the amount of $75,000, that being the amount which was actually voted and is.sued. We are strongly disposed to conclude that bonds like those involved in the present controversy, which were issued in aid of building a bridge over the Mississippi river that was designed for the use 0" wagons and pedestrians as well as for the transportation of railroad trains, should be esteemed bonds issued in aid of a local improvement, .and that they were in no proper sense "railroad aid bonds," within the ·meaning of the constitution. But, be this as it may, these bonds were executed on May 29, 1891. The trial oourt so found, and that finding 'inust be regarded as conclusive. The last assessment preceding that date, according to the statement of counsel for the city,showed that the aggregate amount of city property subject to taxation was $1,654,· 343, which was a sum more than sufficient to warrant tbe· issue
ALABAMA G. B. RY. CO. V. COGGINS.
455
here in question. The result is that -the plea that the issue was exand in violation of the constitution, is, in any event, untena-· ble. n is finally urged that the bonds were void upon their face, because they did not matme for more than 30 years after they were executed, and for that reason were not authorized by section 18 of the act of April 23, 18m. 'l'he fact is, however, that 'the bonds did not begin to bear interest until June 1, 18n4, and they were payable on that day 30 years thereafter. This was a substantial compliance with the law, as has several times been held, and the bonds were not void, nor the validity thereof in any wise affected. for the reason last assigned. Township of Rock Creek v. Strong, 96 U. S. 271, 277; Dows v. Town of Elmwood, 34 Fed. 114, 117. The result is that the record before us discloses no error, and the judgment of the circuit court is therefore affirmed.
ALABAMA G. S. RY. CO. v. COGGINS. (Circuit Court of Appeals, Sixth Cil"cult. No. 520. 1. CARRIERS OF PASSENGERS-NEGLIGENCE-PEHSONAL l::\r.JURIES AT STATION.
July 5, 1898.)
Where a railroad passenger, without objection by the company or its agents, alights at an intermediate station, where passengers are received and discharged, for any reasonable and usual purpose, like that of refreshment, the sending or receipt of telegrams, or of exercise by walking up and down the platform, or of the like, he does not cease to be a passenger, and Is justified In the belief that the company Is exercising due care for his safety. Plaintiff, an employe of a telegraph company, whose line extended along the railroad, was traveling In the caboose of a freight train to a point where repairs were to be made. Near an Intermediate station the train stopped at the usual place for the alighting of passengers, which was some 1,500 feet from the station proper. Plaintiff alighted, and, according to the testimony In his behalf, started to walk to the station, to see if there was any telegram for him from his employer, going by the only practicable way, which lay between the train traCk and a side track. The evidence for dl'fendant was that plaintiff had no business at the station, and was merely loitering between the tracks. He was struck while on a cut-off track by a car which the trainmen were switching to the side track. Helr/, that the question whether, at the time, be was entitled to the degree af care due a passenger, or merely to that due a stranger on the tracks, waa properly left to the jury, under proper Instructions. Code Ga. §§ 2972, 3034, cbange the common law In respect to liability for negligence only In the particular that when there Is negligence by both parties, which is concurrent and contributes to the Injury, plaintiff is not barred entirely, but may recover damages reduced below full compensation by an amount proportioned to the amount of the fauIt attributable to him. When a passenger Is proceeding in the usual way from a train to the station, he has a right to assume that the company will not expose hIm to danger without full warning; and, though this does not relieve him from exercising ordinary care In a yard where trains are moving aboot, It Is 8
SAME-QUESTION FOR JURY.
B.
NEGLIGENCE-EFFECT OF GEORGIA STATUTES.
"
CARRIERS OF PASSENGERS-NEGLIGENCE AT RAII,W4y,STATION.