LIFE ,INS. 00. v.
(Oircuit Court of Appeals. Sixth
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" No. 164.
RAILROAD COMPANIEB'-MUNIOIt'AL AID-CONSTITUTIONAL RESTRTCTtoN8.
Laws Ohio 1880, p; 157;rWhlcl1autliorlzes any township having a population ·ot '8,683 to issue bonds; 'In' the sum of' $40,000 to construct a line of railway; seven miles in 'length, between" termini tq be determined by the township in view of the limltell 'amount to be appropriated, and the ,failure or on its face contemplates, a constructed and equlpP,edtailroad, but a', mingling of public aid With private capital, and therefore'vlolates Const. Ohio;' art. 8, § 6, which for,,bids the general asseuiblY. rtoauthorlze a townShip to raise money for, or loanitll credit to aid of, 'any j()lJ;1t-stock corporation, or ass<><:iation.. 11 Sup. C,t" 215, ,138 U. 8.67, followj:)d. 53 Fed. 214, f1hnet1. ., '
In ElTor to the CfrcuitCc:nirt of th.eU11ited States for the Northern District of Ohio, Western Divisieh. ," , ' 'This was an actionbj"the Aetna Life Insurance Company against Pleasant on bonds defendant. The circuit court overruled aderourrer to defendllnt'Sal'lswer, and rendered judgment thereonfor pl1littti1l', but tlieljudgnient'was reversed on appeal to 11 Sup. Ct. 215, 138 Y. '13. 67. Plaintiff then ,filed a reply to ,the answer, and the issues thereon were ttiedby the' jUry'having, been' waived,-and judgment 'wRe 're1idel'ed for, defendant. · Plaintiff brought error. It. and p;J"Bi.\.iley,for,plaintitf in error. Doyle, Scott & .:LErWis, for'd¢fendaht in'tirror. "t, TM'T a:\ld ,LUR,TON, Circuit Judges, and SEVl:RENS, 'Pisttict ,ruqge.
Qireuit Judge. j·Tbiswas:an aetion brought by the Aetna Life Insurance Company to recover upon bonds. iS$ued by Pleasant township,Jn Van Wert county,., Ohio. The defense was that the J!l.Quda bad been issued' by the townslUp under an act of the legislatUfe which WaIiI' in confiictwHh the constitution, of Ohio. The act, passed April ,9,; 1880 (Laws Obi9,' authorized any township haVing a population of3,683, upQn a vote of the people, to issue .bonds in the $um of$4O,QOO to construct a line of railway, seven maes in length, between teronini to be !letermined by a resolution ot the townShip U'ustees. ',Thean'swer, for a second defense, averred of> acts "passed to aut):lOrize the con,that this. was one of sttUction of a raUroadtl;J,Tough a linELOf townships from Ohio into Michigan; that the acts wetftl enable the townships to contribute the amounts named in each act, respectively, to the construction of a railroad, to be owned and operated as a private enterprise by a private corporation; that the act was therefore in violation of article 8, § 6, of the constitution of Ohio, providing that "the general assembly shall never authorize any county, city, town or township by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association what·
AETNA LIFE INS. ,CO. fl. PLEASANT TP.
ever; or to raise money for, or loan its credit to, or in aid of, 8.D1: such company, corporation, or association." A demurrer was filed to the answer of defendant, which demurrer the circuit court overruled; 'and, the defendant refusing to plead further, judgment was rendered for the plaintiff. The circuit court held that before the bonds were issued the supreme court of Ohio had, in Walker v. Cincinnati, 21 Ohio St. 14, upheld the validity of an act which could not be distinguished from the enabling act under which the bonds at bar were issued, and therefore that, in spite of subsequent decisions of the same court, made after the issuance of the bonds, declaring the enabling act invalid, the federal court must hold the bonds to be v8J.id obligations of the township issuing them, under the principle announced in the case of DougllUls T. Pike Co., 101 U. S. 677. This judgment was carried by writ of error to the supreme court of the United States. The opinion of that court is reported under the name of PleasantTp. v. Aetna Life Ins. Co., 138 U. S. 67, 11 Sup. at. 215. The court held, in accordance with decisions of the supreme court of Ohio in the cases of Wyscaver v. Atkinson, 37 Ohio St. 80, and Counterman v. Dublin Tp., 38 Ohio St. 515 (rendered since the issue of the bonds here in suit), that the act was in con· fiict with the constitution of Ohio, and that such a conclusion was not inconsistent with the decision in Walker v. City of Cincinnati, 21 Ohio St. 14:. The judgment was accordingly reversed, and the case was remanded to the circuit court, with instructions to overrule the demurrer to the This was done, and a reply was filed, taking issue with the averments of the answer as to the circumstances under which the act.:was passed. The case was sub· mitted to the court on the evidence, a jury being waived. Special findings of fact were made by the trial judge, sustaining the averments of the answer, and a judgment was rendered for the defendant. This judgment is now before us for review. . The contention for plaintiff in error is that as it was a bona fide purchaser, for value, of these bonds, it was not charged with notice of anything' but the text of the statute itself, and was not bound to inquire into the motives or intent of the legislature, as inferred from other acts passed at the same time, and from facts extraneous to the act under which the bonds were issued, the existence or significance of which it could not know; that, on the face of the act, it raised exactly the same question of constitutionality which was considered in the case of Walker v. Cincinnati, 21 Ohio St. 14. The effort of counsel for plaintiff in error is to explain away the of the supreme court of the United States in this case by insisting that the hearing before that court was on the averments of the answer with respect to the surrounding circumstances under which the bonds had been issued, and that no question was then ,before the court as to the right to use such evidence, in attacking the constitutionality of the law, against a bona fide purchaser of the bonds, for value, without notice. We do not find it necessary to consider the objection that bona Gde holders of bonds are, not charged with a knowledge of SUITOtmd·
ing cfu<i:tilllstances which render enabling act invalid, because, while the supreme court did to such circumstances in the discussionaf tM acVs validity, still the court held that, even if all the surrounding circumstances were ignored, the acit was invalid, and was plainly distinguishable from the Walker Case. Mr. Justice Brewer,in delivering the opinion of, the court, after referring to a decision of the supreme court of Ohio holding l:tsimilar act invalid (Wyscaver v. Atkinson, 37 Ohio St. 94, 95), finally said:
"The conclusion of that court was, we think, imperative, from the facts as developed. Beyond that, if we ignore all surrounding circumstances, the fact is that the ,amount of the aid to be voted' was insufficient for the construction and equipment of a road of even short length; arid, turning to the mere letter of the statute, we notice this significant fact: While the act of 1869 [1. e. the act under consideration in the Walker Case], by its language, contemplated and required a railroad, and thus a highway, from Cincinnati outward into territory- subservient to its business intere!lts, the actin question before us locates neither the road nor its termini. 'If the letter of the statute alone be regarded, power is given by this statute to construct a railroad in Alaska. Neither location nor termini are prescribed,and the general power is given to construct a railroad not exceeding seven miles in length. can an act containingsuch indefinite provisions, with an appropriation of township aid so limited as to, foreclose the idea of a constructed and equipped railroad, and whose thought of mingling public aid With private capital is so evidenced, be one which can be sustained, in the face of the inhibition of the constitution at the state of Ohio. We think not."
In this view, no for recovery was stated in the petition, and therefore, without' regard to the findings of fact on the evidence adduced, judgment ought to have been given for the defendant. The judgmenfofthe court below is accordingly affirmed, with costs.
VAlr" v. RICHARDS.
(Circuit Court at AppeatJl, Fifth Circuit. June 5, 1894.)
TAX TITLES-POSSEssIoNOJrPuRcRASER-EJECTME-NT BY FORMER OWNER.
Laws Fla. c. 4115, § 65, passed June 2, 1893. relating to recovery ot possession of land sold fOI; rexes, provides that, when a purchaser of ,such real estate prior to the passage of the act "has not entered into and takenll.ctual possession Of the same, he shall. within one year from the passage' of this act. brlIlg suit ,for the recovery of actual possession ot the real. described in such rex title. and in default thereof such tax, title shall, become voi,d and of 'no ,effect." SUch a purchaser. who, before the passage of the act, had obtained his tax deed, no one being in possession of the land. entered and took' possession of it on October 1, 1893, and thereafter remained in possession. On October 30, 1893, the former owner brought e.lectment against him. for the land. Held, that the actiop., not be maintained.
Error to the Circuit Court of the United States for the Northern District of Florida. ,This was an action by William E'. Vail against George 'W. Richards. The parties agreed towaive a trial by jury, and mitted the ease on an statement of facts. ,The circuit court rendered Judgment for defendant. Plaintiff brought error. The waiver and agreed statement of facts were as follows: