HATCH 1/. WALLAMET IRON BRIDGE CO.
Oregon. May, 1886.)
INJUNCTION-REMOVAL OR MODIFICATION-PETITION-PROCEEDINGS TO ENFORCB -WALLAMET RIVER BRIDGE.
Where an injunction has been granted restraining the erection of a bridge, the defendants enjoined cannot obtain relief by presenting a petition for removal or modification of the injunction on the ground of a change in the law, and an alteration in the plans of the bridge, but may make the point in a proceeding against them to enforce the injunction, under which the questIOns whether the law has been so changed, and whether the bridge being con· structed is the one to which the injunction applies may be raised.
George H. Williams and Charles B. Bellinger, for petitioner. H. Todd Bingham and Edwar.d W. Bingham, for respondent.
DEADY, J., (orally.) This is a petition of the Wallamet Iron Bridge Company for the removal or modification of the injunction against the erection of the bridge which it proposes to construct at the foot of Morrison street, or some express anthorityor permission by means of which the company can proceed with the work. As is well known, the construction of this bridge was enjoined by a decree of this court some years ago at the suit of parties having certain riparian rights upon the Wallamet river. The court acted upon the theory that the bridge, as it was proposed to be constructed, was an obstruction to the navigation of the river, in violation of the second section of the act of congress of February 14, 1859, admitting this state into the Union; and, following the ruling in the case of Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 565, decided that it had jurisdiction of the case. The bridge was considered, upon the testimony and in the judgment of the court, to be an unwarrantable obstruction to the navigation of the river, and its construction was enjoined. No appeal was taken from this decree. Afterwards a bill of review was al· lowed, and an effort was made to have the decree set aside; but the court maintained its opinion, and dismissed the bill. From this de· cree, dismissing the bill of review, I understand, an appeal has been taken to the supreme court of the United States; but the case on the original bill remains here. Since these proceedings, the supreme court of the United States, being called upon to consider this question in the case of Cardwell v. A merican River Bridge Co., 5 Sup. Ct. Rep. 423, has decided that language in the act admitting the state of California, similar to that used in the act admitting the state of Oregon, did not extend to the erection of a bridge in such a case; and that if the state authorized the construction of the bridge, that was authority sufficient. Since this decision by the supreme court, this court has had the same question before it in the case of Scheurer v. Columvia·street Bridge Co., 27 Fed. Rep. 172, and refused to enjoin the construction of its proposed bridge at the foot of Jefferson street, v.27F.no.l0-43
in view of the decision in the case of Cardwell v. American River Bridge Co. The petition now presented assumes that, under this decision of the supreme court, the law has been changed, as if an act of congress had been passed authorizing the construction of this bridge; and therefore the court is asked to modify the injunction, or to give some leave or permission to proceed in disregard of it. I have considered this matter carefully, and am unable to see my way clear, under any recognized authority or mode of proceeding, to grant the relief asked. The decree against which relief is sought was a final decree of this court, made years ago; and it seems to me that the only way ill which the question can be brought up is by a proceeding to enforce the injunction. If the petitioners see proper to go on with the erection of the bridge, and parties interested in maintaining this decree desire to proceed by attachment against them for contempt, the court will require notice to be given to the parties, and will then proceed to examine into the question as to whether the decree 'should, under the circumstances, be enforced. In this investigation two questions will be considered: First, whether the recent decision of the supreme court has superseded the decree, and changed the law on this subject; and, second, whether this is the bridge in reference to which the injunction was issued. The bridge which the company now say they propose to construct is one which will cost much more than the bridge of which the con,.;truction was enjoined, and it is to be much less objectionable as to the width and situation of the draw. I am free to say, whatever the language of the decree may be, that I do not consider the injunction in this case to be other than a command not to build the bridge .vhich was then in course of construction, or contemplated by the iefendants, or one substantially like it. The language, of the decree must be construed in connection with the subject.matter. I regarded 'the former bridge, and still regard it, as a very unwarrantable struct· ure; but the bridge which it is now proposed to build is much less objectionable, and, for all that appears, its construction may be no violation of the rule of law upon which the court acted under the theory by which it was originally governed in this matter. The court quoted from the opinions in the cases of Pennsylvania v. Wheeling Bridge Co., 18 How. 431; Baird v. Shore Line Ry. Co., 6 Blatchf. 463, and Wallamet Iron Bridge Co. v. Hatch, 9 Sawy. 656; S. C. 19 Fed. Rep. 347, and concluded: Upon the authority of these two cases it is my opinion that if the law applicable to this matter has been changed, or ascertained to be different from what the court apprehended it to be, the question will properly come up on an application to enforce this decree, and, as I bave said, the further question will come up as to whether this bridge was the same that was enjoined. I am unable to do more than to llismiss this petition with these suggestions, leaving the parties to bring the matter before the court in the way I have indicated.
MONTGOMERY V. ORR.
April Term, 1886.)
(Oircuit Court, No D.
COUNTIES-BoNDS-COURT-HoUSE-POWERS OF COMMISSIONERS-WILBARGER COUNTY. .
Except when attacked for fraud, the decision of the county commissioners as to the character of the court-house needed is final; and, although the cost may exceed the amount for which the commissioners are presently authorized to levy taxes, they may contract for the building of a court-house; the cost thereof to be paid in bonds to be issued and delivered and made payable to the contractors. and bearing interest from the date of issuance. as soon as the taxable value of the county increases so as to enable the bonds to be issued in accordance with law. 2.
A preliminary injunction to restrain the actIOn of the county commissioners, even though they are attempting to exceed their authority, will not be granted, except it appear from the pleadings that the complainant has a sufficient interest at stake in the county to entitle him to institute proceedings.
In Equity. W. W. Leake, for complainant. L. O. Alexander, J. G. Winter, and D. R. Britt, for respondent.
MCCORMICK, J. The complaInant, a citizen of Iowa, brings his bill against the county of Wilbarger, in this state, and against J. P. Orr, L. N. Perkins, and W. A. McKinney, the county jndge, clerk, and treasurer of said county, and all citizens of Texas, and alleges, in substance, that complainant owns 3,400 acres of land in Wil, barger county, subject to taxation, of the value of $30,000; that the county commissioners' court of Wilbarger county has already is· sued bonds of the county to the amount of $8,000 for the erection of a jail in said county, and that said commissiqners' court is about to contract for the building of a court·house at a cost of $35,000, anet to issue bonds of the county in payment therefor; that the taxabl6 property in said county does not exceed in value $2,000,000; that such an issue of bonds is unwarranted, and if issued, and passed into the hands of innocent purchasers, would be a cloud upon his title to his land in said county; an.d he prays for an injunction restraining said county of Wilbarger, and all of its officers and agents, and the said county judge, county clerk, and county treasurer, officially and personally, from issuing, negotiating, selling, signing, countersigning, or registering said bonds, or any of them, or any obligation of said count,V for said sum of money, or any other sums over and above what a tax of one·fourth of 1 per cent. will extinguish it' 10 years. After notice to respondents, the matter came on for hear· ing on the twenty-fourth of April. The respondents admit that bonds of the county to the extent of $8,000 have already been issued for the purpose of erecting a county jail, and that the county has contracted for the building of a court-
house at a cost of $34,900, to be paid for as follows: $8,000 in Wilbarger county bonds, bearing 8 per cent. interest from date, and payable at the will of said county, interest payable annually on the tenth day of April, said bonds to be issued, delivered, and made payable to the contractors or order on the signing of the contract to build; and the balance of said amount to be paid in bonds to be issued and delivered and made payable to the contractors or order, and bearing interest from date of issuance at 8 per cent. per annum until paid, as soon as the taxable values of said Wilbarger county increases so as to enable said bonds to be issued in accordance with the law; the county reserving the right to pay cash in lieu of bonds, if the money can be procured from other sources than by issuing bonds. The answer shows that the county owns town lots in the county-seat now worth $12,500, and of greater prospective valae, which it is the policy and purpose of the county authorities to sell, and appropriate the proceeds, P1'O tanto, to the payment of the cost of erecting said court-hollse; that a railroad is being constructed into and through said county; that the population and taxable values of said county are rapidly increasing; that the complainant has not rendered any property in Wilbarger county for taxes in his own name, and that no deed, bond for title, or other evidence of title to land, showing ownership thereof by comprainant, app8ars of record in Wilbarger county; and that there is not in Wilbarger county any 3,400 acres of land (excluding town lots and town-sites, property owned and assessed against other persons than the complainant) of the value of nine dollars an acre, or $30,000 for 3,400 acres. The allegations of the answer as to the complainant's not rendering in his own name any land for taxes in Wilbarger county, and that no evidence of his owning any land in that county appears on the records of said c9unty, are supported by the affidavit of the proper custodians of the records, and are not replied to or denied in the oral argument on the hearing. The statute provisions bearing upon this subject are:
"The county commissioners' court of any county is hereby authorized and empowered to issue the bonds of said county, with interest coupons attached, in such manner as may be necessary -to erect a suitable building for a courthouse or jail, or both; said bonds running not exceeding fifteen years, and redeemable at the pleasure of the county, alld bearing interest at a rate not exceeding eight per cent. per annum." Act twenty-seventh March, 1885. "The commissioners' court of the county shall levy an annual ad valorem tax on the property in said county sufficient to pay the interest, and create a sinking fund for the redemption of said bonds not to exceed one-fourth of one per cent. for anyone year. The. county shall not issue a larger number of bonds than a tax of one-fourth of one per cent. annually will liquidate in ten years, and such bonds shall be sold only at their face or par value." Act February 11, 1881. "Said courts [county commissioners' courts1 shall have power, and it shall be their duty, to provide and keep in repair court-houses, jails, and all necessary public buildings." Rev. St. art. 1514.
It appears by the answer that the county has not issued, and does not propose to issue, a larger amount of bonds than a tax· of onefourth of 1 per cent. on the taxable values in the county at the time of the issue will pay in 10 years. The right of the county commissioners' court to make the contract set out in the answer depends ()n the power of the county to provide a court-house, and give its valid written obligation to pay therefor at a future day. It appears to me that this question is very similar to the one presented in City of Galveston v. Loonie, 54 Tex. 523, where the power of the city so to contract was npheld. See authorities cited in that case.. Here we have a comparatively new county, just coming into notice, whose population is alleged to have trebled within a year, its taxable values rapidly increasing, and the need of a court-house pressing upon the commisaioners' court. Why may they not contract for the building of such a house as will adequately meet the immediate demands of this growing population? Why should they be required, by a writ proceeding from another court, to delay the discharge of the duty imposed upon them by the law, and the choice of their fellow-citizens, orrestrained from exercising in this matter that discretion with which they are clothed by law and the selection of them for that office by the people most interested? Except when attacked for fraud, their decision as to the character of a court-house that is needed is final. Robertson v. Brudlove, 61 Tex. 321. But, on the showing of the bill, 3,400 acres . of land in Wilbarger county, claimed to be owned by complaina.nt, is alleged to be worth $30,000, without showing where the land is, or any reason for its being above the average value of land in that county. This is very nearly nine dollars an acre. At that !'ate the land alone in Wilbarger county (900 square miles) would be worth $5,000,000, and furnish an ample basis for the issuance of bonds to pay for an $8,000 jail and a $35,000 court· house. But if, as is probable, the average value of land in Wilbarger county does not exceed three dollars per acre, it sufficiently appears from the bill, answer, and exhibits that the complainant is not in a position to invoke the authority of this court to restrain the action of the commissioners' court, even though said commissioD<':fs' court are attempting to exceed their authority in providing a court.house. The prayer for a preliminary injunction is refused.
& P. R. R. CO. v. HENDEE, Receiver, etc.
EQUITY-ORIGINAL BILL-DISMISSAL BY PLAINTIFF-COSTS.
A complainant in an original bill has, as a general rule, the right to dlsml·· his bill upon payment of costs, provided no decree has been made by which the defendant's rights have been adjudicated.
In Equity. Edwards, Dickerman cf Young, for orator. George W. Hendee and Albert P. Cross, for defendant.
WHEELER, J. This cause is at issue on bill, answer, and replication. The defendant has taken and filed testimony; the orator has not. There has been no hearing, and the cause has not been set down for hearing, nor ready to be so set down. The orator claims the right to discontinue the suit on payment of costs to the defendant, and asks leave to enter such discontinuance. In Chicago d; A. B. 00. v. Union Rolling·mill Co., 109 U. S. 702, S. C. 3 Sup. Ct. Rep. 594, it is said by Mr. Justice WOODS, in the opinion of the court, that, "as a general rule, a complainant in an original bill has the right at any time, upon payment of costs, to dismiss his but "subject to a distinct and well-settled exception, namely, that after a decree, whether final or interlocutory, has been made, by which the rights of a party defendant have been adjudicated, or such proceedings have been taken as entitle the defendant to a decree, the complainant will not be allowed to dismiss his bill without the consent of the defendant." This case falls within the general rule stated, and not within the exception, and the orator appears to be entitled to have the lea.ve granted. Oarrington v. Holly, 1 Dick. 280. Leave to enter discontinuance on payment of costs granted.
«(Jtrouit (Jourt, S.
n. New York.
determine whether or not immigrants are likely to become a public charge, and therefore not entitled to land. Their decision. made upon competent evidence, cannot be reviewed on habeas corpus, but may be reconsidered by them at any time before the return of the passeugers. Additional evidence, tending to show that the passengers are not likely to become a public charge, cannot be considered upon habeas corpus, but must be presented to the com· misl!ioners.
DREN-LANDING STOPPED-HABEAS CORPus-EvIDENCE NOT REVIEWABLE. The act of August 3, 1882, vests in the commissioners exclusive power to