SHELLEY V. ST. CHARLES COUNTY.
will also make provisions in their policies, by virtue of which insurance on property in transit will have a limited character. In the absenC:9 of any contract on the subject, if the insured owner accepts payment from the insurers, they "may use the name of assured in an action to obtain redress from the carrier, whose failure of duty caused the loss." The right nsts upon "the doctrine of subrogation, dependent, not all upon privity of contract, but worked out through the right of the creditor or owner." The suit cannot be in the name of the insurers. Hall v. Railroad Cos. 13 Wall.3ti7; Hart v. RailTOnd Corp. 13 1I1etc. DD; :Mercantile Mut. Ins. Co. v. Calevs, 20 N. Y. 173; Conn. Mut. Life Ins. Co. v. Railroad Co. 25 Conn. 205. By the contract in question the owner agrees that, as between him and the carrier, the latter, when he has paid for the loss, may have the benefit of the insurance. This contract will proJably iuterfere with the benefit which the insurer would otherwise obtain by virtue of being subrogated to the rights of the owner, or of having an equitable assignment of the owner's interest in the policy; but the mere fact, in the absence of fraud, that the insurers may not occupy the same position which they would have had if the provision had not been inserted, is not sufficient to justify an opinion that the provision is unreasonable. The amount of the pI'emium and the amount received by the plaintiffs from the insurance are not given in the agreed statement. I am inclined to the opinion that the owner is only bound to account to the carrier for the not avails of the insurance, and if those avails were less than the value of the goods, a balance would stIll be due from the defendant. But as the finding simply says that the plaintiffs received from the insurers the full value of the flour, I cannot assume that the net avails were not a full indemnity for the loss. The defendant is liable for the amount of the loss, deducting the Bum which the plaintiff has already received by way of indemnity, and as the entire amount of the loss has been paid, the plaintifI is entitled, under the contract, to receive nothing more. Judgment is to be entered for the defendant.
CHARLES COUNTY.! October 5. 1883.)
(Circuit Court, E. D. Missouri.
CONSTITGTIOXAL LAW-ARTICLE H. § 11, OF TIIE -:--wAm'-LA;\"D ACTS OF lEG,1 AND lEiO.
a statute authorized a couuty to improve swamp lands sitnated within its limits, upon petitioned by a majority in interest of the owners of such lands to do so, and upon being shown by such owners that the improve1Reported by Een). F. Rex, Esq., of the St. Lon!. bar.
mcnt is practicable lind tIJeir declaring themselves willing to pay their just proportion of the expenses; lind, provided that the benefit to the county should be estimated and Le paid Ly the county, and that funds to pay the Lalanee of the expenses Rhould beraiserl by the eonnty by issuing county honds, lind that funds to pay the oonds should he raised by taxes assessed exclusively on the lands benetited: held, that the statute was valid and did not authorize the county" to loan its credit to any company, association, or corporation" within the meaning of the provision of article 14, § 11, of the constitution of Missouri.
MUNICIPAL BONDs-PnESU)IPTTON IN FAVOR OF LEGALITY.
Semble, that where tile constitutionality of a law unJer which county honds ha'"e heen issued is <lauotful, federal courts will, in advance of any consideration of thesllbject hy the supreme court of the United ::itatcs, resolve all doubts in favor of tlle validity of the act.
On Demurrer to Petition. . This is a snit brought to recover judgment upon bonds issued by the defendant under the provisions of certain statutes mentioned in the opinion, authorizing the county to issue such obligations to facilitate the reclamation of swamp lands, and to be known as "land improvement bonds." E. B. Shcrzcr, for plaintiff. TV. A. Alexlllldcr and Dye1', Lee cf; Ellis, for defenoflnt. MCCRARY, J. 1'he demurrer raises the question of the constitutionality of the act of the general assembly of Missouri of March 3, 1869, as amended by that of March 14, 1870, under which the bonds sued on ·were issued. It is said that this legislation is in violation of the provision of article 14, § 11, of the constitution of 1865, which was in force when the acts above mentioned were passed, and which is as follows: "The general assembly shall not authorize any county, city, or town to become a stockholder in. or to loan its credit to, nny compau}', association, or corporation. unless two-thirds of the qualified voters of such county, city. or town, at a regular or special election to be held therein, shall assent thereto." The act of 1869 provided for the reclamation and protection of swamp and overflo·wed land by means of drainage, diking, or otherwise. The expense of such improvement, it was provided, should be paid by an assessment upon the county at large, to the extent of the benefits accruing to the whole county by reason of the improvement; the amount to be so assessed to be determined by the county commissioners after investigation, and the remainder by an assessment against the individuals benefited thereby, in proportion to the number of acres reclaimed or improved for them respectively. The act of 1870 provided for the issue of bonds, in lieu of immediate taxation, as the mode of raising the funds necessary for paying the expense of such improvement; and, for the raising of funds to pay such bonds, principal and interest, by taxes assessed exclusively on the lands improved, benefited, or protected by such improvements, except such portion as may be deemed by the commissioners to be justly chargeable to the county at large, according to the provisions of said act of I86!), which portion the county is to payout of money collected for general purposes.
An examination of these statutes shows that they do not attempt to authorize a county either to become a stockholder in, or to loan its credit to, any company, association, or corporation. The owners of the swamp lands to' be reclaimed, and who join in a petition to the county authorities for the purpose of invoking action to that end, and agreeing to pay their just proportion of the expense, can scarcely be regarded as an '"association," within the meaning of the constitutional provision above quoted. They are clearly not a body of which the county could by possibility become a stockholder. They are not incorporated, nor in allY manner organized or associated together, so as to be capable of issuing stock. But it is Haid they constitute an association to which the county has attempted to loan its credit. Not so. The county 11:1 s made no loan of credit to anyone. It has issued , its own bonds, agreeing to raise money for their liquidation by a levy of taxes upon certain property. The bonds do not constitute a loan of credit to any association of swamp owners. By the statute the county contraots for the improvement, paying therefor with the bonds., The county does not engage in a purely private enterprise, nor does it unllertake to aid a corporation, company, or association in carrying forward such an enterprise. It is tile common case of a statute authorizing the construction of drains or of levees in order to protect or relieve swamp, marshes, and other low lands, and for the payment' of the expenses thereof by special assessments. Sucll statutes are very generally held valid, sometimes upon the ground that such impro\'Cnnents are importaut to the public wealth, s sometimes as a proper public regulation, and sometim upon the ground that the general public are interested in reclaiming such lands for use, and thus adding to the value of the taxable property. of the county or state. It is competent for the legislature to require the owners of property ·to be permitted to malie the improvements, and to enact that, in case of tlleir default, the county may do so at their expense, and charge the sum to the property benefited through a special assessment of taxes thereon; and there seems to be no reason to doubt that the legislature may provide for an apportionment of the expense between the county at large and the owners of the property especially benefited. The statutes under consideration here authorize the county authorities to determine what proportion of the expense shall be borne by tile county at large, and what. by the property reclaimed. The general principles by which \\'e are guided in holding this legislation to be mlid and constitutional, will be found set forth in Cooley, Tax'n, c. 20, ueder the head of "Taxation by Special Assessment." We are clearly of the opinion that the legislature of Missouri, in enacting the statutes in question, was acting within the principles there enunciated, and not attempting, in violation of the constitution, to authorize a loan of cOllnty credit to a corporation, company, or association. It is proper to add that, if the qnestion wore doubtful, tbis court
would feel constrained, especially when dealing with it in advance of any consideration of the subject by the supreme court of the United States, to resolve all doubts in favor of the validity of the act in question. Gilchrist v. Little Bock, 1 Dill. 261. Demurrer to petition overruled.
DROWN V. EVANS. 1
(Circuit Court, D. Nevada. 1.
Fcbruary 5, 1883.)
In vindictive actions, such as assault aori hattcry, slandcr, libel, seduction, etc., where fraud, malice, cruelty, oppre8sion, hrutality, or wantonness is shown, on the part of the defendant, exemplary damages may bc recovered.
WEAL'I'U OF DEFEN!:>Al'T.
In thc above class of actions evidence may he given of defendant's wealth.
CnHuNAL LIABILITY OF
Expmplary damages may be recovered in a civil action, although the act complained of may bc a crime or misdemeallor, and subjcct the defendant to criminal prosecutioll therefor.
In actions for mer good character
for assault and battcry, evidencc of defendant's fornot admissible.
NEW TRIAL-(JUMPLATIVE EVIDENCE.
A new trial wiII not be gronted on the ground of newly-discovered evid,'nce, when such evidence is merely cumuhtive, or is npon unimportant matters in the case, or where, in the opinion of the court, such evidence, if produced, would not affect the action or verdict of a jur.r.
A new trial will not be granted on the ground of cxcpssivc damagcs, in an act;on of pprsonal tort, nnll/ss it appear that the jury were inllnenced by passion, prejudice, corruption, or wiLful disrcgard of law, in assessing such dam-
This is an action brought by plaintiff to recover from defendant the sum of $20,000 damages alleged to have been sustained b-- plaintiff by reason of an assault and battery committed by defendant upon plaintiff on or about the thirtieth day of March, A. D. ISS 1, at the town of Reno, county of Washoe, state of Nevada. The cause was duly tried in this court at the November term thereof, 1882; Han. Lorenzo SA'HER, circuit judge, and Han. G. M. SABIN, district judge, presiding. The.i nry returned a verdict for plaintiff in the sum of $8,150.87, and judgment was thereupon duly entered for said sum and costs in favor of plaintiff. Thereafter counsel for defendant duly moved the court to set aside said verdict and judgment, and to grant a new trial herein. The motion was argued orally by counsel for the respecti"e parties before SABIN, J., presiding, and was submitted on briefs filed. The grounds of defendant's motion for a new trial are stated in the