BANK V. CITY OF BRENHAM.
parture in its methods from the rules of the common law, and it may be doubtful if any fact tried in a federal court has el'er been re-examined "according to the rules of the common law." Congress has never taken the trouble to regulate such re-examination according to the constitutional requirement, nor to declare how it shall be done, under a judicial system established before the amendment was made, and which is ill adapted, to say the least of it, to the process of re-examining a fact tried by a jury "according to the rules of the common law." The question arisE'S whether congress is not confined by the amendment to some system of organization for the courts, wherein these rules of the common law may have full play, for nothing is plainer than that it has not the same freedom of action as the states, in providing for the re-examination of a fact tried by a jury. At all events; the courts should not be left during another century to tlounder about as they have been left during that which will close September 24, 1889, the centennial of our judiciary act.
GERMAN-AMERICAN BANK V. CITY OF BRENHAM.
Twa8. April Term, 1888.)
MUNICIPAL CORPORATIONS-BoNDS-POWER TO ISSUE.
The defendant city, being authorized to borrow money for" general pur· poses, "had power to issue commercial bonds for the sums oorrowed which will legally bind the corporation.
S. SAME-CONSTITUTIONAL LAW.
The city was chartered in 1873. The state constitution of 1876 provides that such cities as Brenham may" collect an annual tax to defray the expenses of their local goverument. not to exceed for a'ny year one·fourth of one per cent." The bonds were issued in 1879. Held, that the said provision did not forbid the defendant city to borrow money for" general purposes," or to defray the expenses of its local government.
The money borrowed on the bonds was expended unlawful1y by the city coun· cil to aid a railway company. The whole series of bonds and eoupons were purchased by Mensing before any of the coupons were overdue. While Mensing held them. some $2.000 of the coupons became past due and unr,aid,and-in that condition Mensing pledged the bonds and coupons to plaintrff to secure the payment of borrowed money. Held. that if the jury tind that Mensing had knowledge of the fact that the city council, in borrowing money on the bonds, intended to expend the money obtained from the bonds, or did expend the same. in the aid of a railway company, the plaintiff. as to the dishonored coupons, should not recover.
The pledgee, the plaintiff. in relation to the dishonored coupons. must be charged with such knowledge of the issuable facts as the jury may believe the pledgeor, Mensing, should be charged with. (SyLlabu8 by Boarman, J.)
At Law. Trial by jury. Henry So.yles and Davidson &; Minor, for plaintiff. Maxey &; Fisher and Peeler &; Peeler. for defendant.
BOARMAN, J., (oraUy charging the jury.) The defendant, in his plea in abatement, sets up that the plaintiff does not own or hold the bonds in such a way as to entitle him to sue in this court. This plea presents an
issue of fact which you are to determine. I charge you that the bonds and coupons in question are on their face commercial paper. The holding of such a paper, the employment of counsel to sue on these coupons by the bank, the failure of defendant to show or suggest that anyone else ie the owner of the coupons, makes a prima facie case in favor of plaintiff. If you find that Mensing was the purchaser and owner of the coupons, and that he pledged them to secure a loan made to him by the bank, and that in fact Mensing no longer claims or owns the coupons, you will find for the plaintiff. The failure to suggest that anyone else owned the bonds or coupons, or to name any one else as their owner, is a strong circumstance in favor of the plaintiff. Now, upon the other issues, I charge you that bonds to the amount of $15,000, with interest coupons attached, were issued in 1879 by the defendant city, then operating under charter of 1873. In that charter section 2 says "that the city council shall have power and authority to borrow money for general purposes, not exceeding $15,000.00, (fifteen thousand on the credit of the city." The constitution of the state, 1876, allows such cities as Brenham to "collect an annual tax to defray the expenses of their local government not to exceed for any year one-fourth of one per cent." The power of the city to borrow money carries with it the authority to issue bonds in this case. It maybe that the limitstjon of the power to tax beyond of 1 per cent. impairs the ability of the defendant to pay the bonds and coupons; but I do not think it denies the capacity of the corporation in 187.9 to issue the bonds. as commercial paper, and bind the constituency to the payment thereof. Hence you will begin your consideration or the issuable facts with the fixed opinion that the city must pay the coupons now sued on in full, unless you shall find adversely to plaintiff on the single issue I shall directly present to you. If you find adversely to plaintiff on that issue, recovery can be had for only apart of the coupons sued on. Before stating that issue, let us sum up sonie of the matters of fact that are not disputed. Such evidence shows that the city, under the charter of 1873, issued, by ordinance, in 1879, the bonds, the coupons on which thIS suit is brought; that the city, in pursuance of ordinances, sold the bondf:1, and that of the proceeds of the sale were expended by the city council unlawfully; that is, in aid of a railway company; that Giddings bought $5,000 of the bonds in August, 1879, and that Mensing became the owner of the whole issue before March, 1883, the interest coupons having been paid up to that date; that while Mensing held and owned the coupons ofthe whole issue, three series of them, amounting to $2,250, became due and were unpaid; these unpaid coupons were due as follows: March, 1883; September, 1883; March, 1884; and Mensing pledged them after the last date to the to secure the payment of a loan niade by the bank. The defendant, having shown that some of tbe coupons were past due before the bank became the holder of them, has offered evidence to show that Mensing was charged with knowledge of such facts atteuding the issue and sale of the bonds, and the unlawful p'urposes from which the money obtained from their sale was expended by the city
CITY OF BRENHAM.
council, as should forbid the bank, to whom Mensing plec1ged the overdue coupons to recover on the past due coupons, amounting to $2,250. Now, then, the single issue of fact which I shall present to you is, does the evidence show that Mensing, who purchased the bonds before the series of coupons mentioned were past due, andin whose hands they had become due, knew at any time before the purchase of the coupons that the city council in causing the bonds to be issued ostensibly for "general purposes," as is recited on the face of the bonds, really intended that the proceeds of the bonds should and would be used not for" g6neral purp,oses;" but that the proceeds were to be expended, and were expended in the aid of the railway company? In considering this matter you must keep in mind that the acts or intentions of the city council, acting as an official body in the exercise of powers delegated to it can be ascertained in but one way, that is by a fair reading of the city ordinances. Such a reading of the ordinances relating to these bonds shows clearly that the bonds were issued for "general purposes," and you will be authorized, when considering the rights of an innocent purchaser, one purchasing before maturity and for value, to conclude that the corporation issued, and intended to issue, them for such purposes as are stated in the bonds. Such a conclusion would be entitled to the force ofa legal presumption in favor of the plaintiff if the pledgeor. Mensing, had come into the ownership or possession of the coupons before any of them were overdue. It being admitted that $2,250 of the coupons were overdue when they left the hands of Mensing and came to the German Bank, you are advised to put such a conclusion aside, and examine all the evidence illustrating the issue I have presented. You may inquire into the acts, sayings, purposes, or intentions of anyone or all of the several members of the city council, as individuals, for the purpose only of ascertaining whether or not Mensing had any understandings with them, or anyone of them, to the effect that the corporation would issue the bonds ostensibly for a lawful purpose, but that in fact the money obtained from the sale of the bonds should or would be expended in ,aiding a railway company. You may inquire, too, whether Mensing, at any· time before.he bought the bonds and coupons, knew that the money coming from the sale of the bonds had been at any time expended by ordinances unlawfully passed by the city council. If, upon considering such testimony, you should find that Mensing was charged with such knowledge, at any time before he purchased the bonds, then you will deny the plaintiff any recovery on the $2,250 of coupons which were overdue, but you will allow plaintiff the balance of his demand. Your conclusion upon that single issue will control your verdict. By way of further defense the defendant contends that the city did not comply with that article of the constitution which provic}es that all cities, before incurring a debt, shall provide by ordinance for securing the payment of the interest thereon, and for a sinking fund to pay the principal, and therefore the plaintiff was charged with the knowledge of their invalidity. The plaintiff relies on the following ordinance to show compliance with the requirements of the constitution:
be necessary, on the assessed value of the taxable property of the city as a special interest and sinking- fund with which to pay the interest on said bonds. and liquidate the same, and said fund shall be kept separate from the other funds of the city, and shall be used for no other purposBt Sec. 8. That this ordinance go into effect, and have force from and after passage." I charge you that the ordinance read to you, in connection with the other ordinances that I shall not read to you, shows a substantial and sufficient compliance with the law, and as to this defense you will find for plaintiff. Verdict for plaintiff.
Dalorem tax of the city one-eighth of one per ceni.· or so much thereof as may
"Sec. 7. That there be and is hereby appropriated out of the general ad
RUTZ 'D. SEEGER
((}ircuit (Jourt, 8. D. illinois. February 11, 1888.)
A portion of plaintiff's land situated on the eastern bank of the Mississippi river was washed away by rapid and perceptible stages, and lodged in the river opposite; This occurred during the spring floods, a strip of land from , 250 to 800 feet in width being carried away each time. which could be seen in its progress. Blocks and masses of earth from 10 to 15 feet in width frequently caved off and fell into the river, and were carried away. Held, that plaintiff was entitled to as much of the land as formed in the river by this process between the adjacent shore and the thread of the river. together with accumulations caused by the away of an island above plaintiff's land, and which was deposited and fllled the space between the shore and the new formation in the river. 1
At Law. Ejectment brought by Edward Rutz against Benjamin Seeger and the city of St. Louis. EdsaU Edsall and R. A. Halbert, for plaintiff. Levereet BeU and William O. Kueffner, for defendants.
GRESHAM, J. This cause having been heretofore, to-wit, on the 10th day of November, 1886, in pursuance of the written stipulation of counsel for the respective parties on file herein, heard and tried by the court, without a jury, and the court having considered the evidence, including the admissions and agreements as to facts made by the respective parties upon the trial, and having also heard the arguments of counsel, thereupon took the case under advisement. And now, on this the 11th day of February, 1888, the court, being sufficiently advised in the premises, doth find the following facts: one August A. Blumenthal acquired and 1. That in the year then owned the title in fee to surveys numbered 149, 150, 151, 152, 153, 154, 155, and 156 of the common fields of Prairie du Pont, in the
lFor a discussion of the, doctrine of alluvion, avulsion, and accretion, see Serrin v. Grefe, (Iowa,) 25 N. W. Rep. 227, and note; Mulry v. Norton, (N. Y.) E. Rep. 581., and note.