an, actual forcible'41SposSeBsion of the plaintitlls not necessary. Any unlawful Inter. terence ''1\'ltb the property, or exercise of dominion over it, by which the owner is is sutficient to maintain either action."
""Tj)' matntaibtrover or trespass' derlbobis asportatis, r
In the case at bar there was no unlawful interference with plaintiffs' tpr<>perty or exercise of dominion over it. The original delivery of the jewelry to defendant was a deception upon it (Humphreys v. Perry,'supra), and gave no rights to the trunk and its contents as The first relations of defendant to them with which we are'c()Dcerned accrued at Noxon, at the time of the wreck. What duty did these relations impose on the defendant? We. may assume, to keep the goods safely, and to deliver them upon . demand and identification to their owner. A discharge of this duty was,tendered to plaintiffs, and refused by them. . But it is claimed by plaintiffs that the goods were delivered to the conductor of the train by Eisenbach, hethen saying that he was a d.uty to them at going to Missoula, and' that this Missoula. If they had been baggage, properly accompanying a passenger whose destination was Missoula., this might be true; but they Were ll()t.They weregoods'bl"ought to the attenti(Jtt and forced They of conupon tbe care of the ddeJ;ldji:rit .1;}y.an .siderable vallie, and the true relations of the company to ,them were demand them. at Missoula. not known. But Eisenbach They were on the same' as was; and arrived' 'at at the same time he did.' . .· 'If he had, immediately sought. and claimed question: Illighthave been preaented.. But them as, 'such, a lli$ demaIld next day. was not.foJ:them , but for the trunk and its ,contents asdeiivered at Spokane.· Indeed, it isevidenLthat, when turned them over to the condUctor, it was not for the purpose 'of claiming and receiving them 'again, for he testifies that he would haVe accepted them if they had' been offered. The testimony shows that to the first claim which identified. them the company :promptly responded, and subsequently tendered them,ahd that the plaintiffs refused to accept them except upon such terms as they right to exact. Judgment for defendant.
BERLIN IRON BRIDGE CO. v. CITY OF SAN ANTONIO.
(Circuit Court, W. D. Texas, San Antonio Division. May 19., 1894.)
tion of a bridge-one-hlUf 011 delivery' of the material, and the remainder Qn completion and Of, ,the a debt, within the provisions of Const. Tex. art, ll,§§ 5, 7, that no city ,shall create any 'debt unless at· the saDle'time proVision be made by taxation for payment of interestanddreation ofa sinking fund, and is therefore invalid if no such provision is at .the time of its e;x:ecution, notwithstanding payment of the contract price is secured by the· proceeds, paid into the city treasury, of bonds issued for the purpose, in accordance with pro-
CORPORA'fIONS- CONSTITUTIONAL RESTRICTIONS ON CREATION OF DlllBTS-PROVISION FOR INTEREST AND SINKING FUND. . A contract whereby lL city agrees to pay a certain SUIll tor the erec-
CITY .OF SA;N ANTONIO.
visions of the city charter requiring creation of a fund for payment of interest and as a sinking fU/ld, by special tax.
2. SAME-CURRENT EXPENSES.
'.Phe debt created by such CQutract cannot be regarded as a current expense of the city, payable out of current revenues. Where such contract is void, as contravening the provisions of the constitution, the contractor cannot recover from the city the value of the bl'idge, as upon an implied contract.
ThiS was an action by . the Berlin Iron Bridge Company against the city of San Antonio on a contract for the erection of a bridge. Plaintiffs petition contained the following allegations:
First. That plaintitI is a private corporation duly incorporated under the laws of the state of Connecticut, resident and doing business in said state of Connecticut, and a citizen of said state. Second, That defendant, the city of San Antonio, is a municipal corporation duly incorporated by a special. act of the legislature of Texas approved August la, 1870, and which said act has been su l 'equently, at different times, ,amended by the legislature of the state of by acts passed amendatory to said act above referred to, and that said city is now, and was on the 1st,qay of November, 18\)0, and has ever since been, a city of over ten thousalld (10,000) inhabitants. '.rhat its said charter, on the date last above referred· to, contQ..ined, and has ever since contained, the following provisions, among others, which said provisions were on said date, and thence hitherto, in full force and effect as part of the charter of the said city, to wit: ·'Section. 1. '.rhat all the inhabitants of the city of San Antonio are hereby constituted a body cOl'Porate and politic and shall have power '" '" '" (4) to make all contracts and do all other acts ill relation to the property and concerns of the city, necessary to the exercise of its corporate and administrative powers." "Sec. 4a.. money on the credit of the city and issue bonds therefor to an amount not to exceed $50,000.00, for street improvements; '" '" '" provided, that no debt shall be contracted for the payment whereof such bonds· are issued .(except the sidewalk bonds) until such bonds shall have been disposed of, and the proceeds thereof paid into the city treasury; and when any·bonds are issued by the city, a fund shall be provided to pay the interest and two per cent. Per annum on the principal as a sinking fund to redeem the bonds, which fund shall not be diverted or drawn for any other purpose. and the city treasurer shall honor no draft drawn on said fund, except to pay the interest or redeem the bonds for which it was provided; and for the payment of sueh loan to levy a special tax, over and above the general tax allowed by this act. * '" '" The sinking fund for the redemption of any loan 01' debt, to be invested as fast as the same accumulates, in United States interest bearing bonds, bonds of the state of Texas, or in city bonds. and such bonds and interest of such bonds to be reinvested and to be sold when necessary, to pay debts or loans. '" '" '" "Sec. 44. To provide by ordinance, special funds for special purposes, and to make same disbul'sable only for the purpose for which the fund was created. "Sec. 45. To appropriate and provide for the payment of the debts and expenses of the city and to issue refunding bonds for the purpose of redeeming bondl;! bearing a higher rate of interest, or paying matured bonds. h "Sec. 60. To establish, el'ect, construct, regulate and keep in repair bridges, culverts and sewers, sidewalks and cross-ways, and to regulate the construction and use of same," "Sec. 172. The city council shall have power within the city, by ordinance, to annunlly levy and collect taxes for general purposes, not exceeding one per cent. on the assessed value of all real an4 personal estate and property in the city,. including all. money loaned therein at interest, although the owners may be nonresidents."
, "Sec. 114. To levy and collect special tax for special purposes, provided BUch special tax shall not exceed one percent. on the property' taxed anDuall1/' , "Sec. 21:9. AU ordinances of the 'city, when printed and published by authority of the city counell, shall be admitted and received in all the courts and places, without further proof." "Sec, 233. Lands, houses, moneys, debts due the city, and personal and teal property and assets of everydescrlption belonging to the city, shall be exempt from execution and sale, but the city shall make provision, by taxation. or otherwise, for the payment of any and all indebtedness due by the city." "Sec. 253. This act shall be deemed a public act and may be read In evidence, without proof, and judicial notice shall be taken thereof in all courts and places." Third. That said city has never In its tax levy for general purposes the said one per 'cent. on: the assessed value of all real and personal estate and property in the city, specifted in said section 172, and has never exceeded in' its tax levy for special purposes said one per cent. on the property taxed annually, as above referred to in section 174. Fourth. That on sald 1st day of November, 1890,and thence hitherto, the San Antonio river, the San Pedro creek, and various irrigation ditches ran through the corporate limits of sald city, crossing its public streets and alleys at"various points and places, and necessitating, on the part of the city, for the benefit of its inhabitants, the erection of bridges over and across said creek, sald river and said irrigation ditches at various places within said city as parts of its streets, and particularly at a point in said city where Crockett street extends across the San Antonio river. and that the cost of the erection and maintenance of such bridges across said streams, and particularly across the San Antonio river at the point above referred to, was on said 1st day of November, 1890, and..thence hitherto, one of the necessary current expenses of said city, for which said city was fully authorized and empowered by the said provisions. of its charter to annually levy and collect a tax to pay. Fifth. Plaintiff further avers that heretofore, to wit, on or about the - day of - - , 1890, the defendant, being desirous of erecting an iron bridge across the San Antonio river, where Convent street crosses said river, by ordinance duly passed by the city councll, directed the mayor of said city to advertise for bids for the erection and construction" of said bridge,bids to be solicited for the iron superstructure and for the masonry separate. That in pursuance of said ordinance, and in obedience thereto, said , mayor of said city gave public notice to all parties to make bids for said work; reserving, however, to said city, the right to reject any and all bids, and reqUiring that said bids should be SUbmitted, sealed, at the office of the city clerk, on or before Saturday, October 4, 1890, at 12 o'clock m. That plaintiff herein submitted the following bid or proposition: "We, the undersigned, agree to erect, and put In condition for travel,the superstructure of an IrOD. bridge, of 10o-foot span, over the San Antonio river, at Convent street crossing, to be a duplicate of Crockett street bridge, In the county of Bexar, state of Texas, In accordance with the attached specifications, for the sumo! thirteen thousand dollars ($13,000.00)." That thereafter, by ordinance duly passed by the city council of said city, said bid was duly accepted by said city, and, by ordinance duly passed, the mayor of said city was directed, to enter Into a contract with. plaintiff for the erection of the IrOD superstructure of llaid bridge, and that in conformity with said ordinance, on the 12th day of November, 1890. plaintiff and defendant entered IDto a contract In writing, In substance as follows, to wit:
"The State of Texas. County of Bexar. ·'Tl1isagreement, made and' entered Into this 12th day' Of No'Vember, A. D. 1890, by and between the' Berlin Iron Bridge Company, bridge builders, of East Berlin, state of Connecticut, parties of the first part, and the city of Sah 'Antonio, of the county· or Bexar, State of Texas, parties 'of the second part, witnesseth: That the sald parties of the first part hereby· Ilgrc!e to
BERLIN IRON BRIDGE 00. t1. CITY OF SAN ANTONIO.
furnish and erect complete, ready for travel, the superstructure of a wrought iron and steel truss bridge (98) ninety-eight feet on centers, with a roodway 26 feet, and (2) two walks of (6) six feet each, at Convent street across the San Antonio river in said county, at the site designated by the city engineer, said bridge to be a duplicate O'f Crockett street bridge, which is now being bUilt, and according to the plans and specificationS" hereunto attached, which are made a part of this contract. And the said parties of the first part hereby agree to have said structure completed and ready for inspection on or before the thirtieth day of March, A. D. 1891, allowing a reasonable amount of time in case of unavoidable delays in shipping, by reason of high water, or accidents in construction. And the parties of the second part agree to have the abutments for said bridge completed by the first day of January, A. D. 1891. But in case said abutments are not finished in the specified time, and the parties of the first part have delivered the material for said bridge at site of same, then the parties of the second part shall pay the parties of the first part fifty per cent. of the contract price. And in consideration of the above presents the said parties of the second part contract and agree to pa,y the said parties of the first part the sum of thirteen thousand ($13,000.00) dollars, payable as follows: The sum of six thousand five hundred dollars ($6,500.00) on the delivery of the iron material at the site of the bridge on Convent street, San Antonio, Texas, and the remainder shall be paid on the completion and acceptance of the bridge. It is understood and agreed that the party of the first part is to have the use of the steam roller belonging to the city, in placing the concrete on roadway of said bridge, free of cost. This contract signed in duplicate. In witness whereof, the said parties do hereunto affix their seals and signatures the day and year first above written. City of San Antonio, "[Sea!.] By Chs. Guerguin, Acting Mayor. "[Sea!.] "[Sea!.] The Berlin Iron Bridge Co., "By Wm. Payson, Agent." Sixth. That thereafter the city directed that the bridge described in the contract hel'einbefore fully set out should be erected on Crockett street, instead of on Convent street, as in said contract specified, and plaintiff agreed to do same under said contract in writing above set forth, and for the consideration therein specified. And said city agreed that said bridge should be erected by plaintiff on said Convent street, under the contract hereinbefore set out, and that said city would pay for the same the consideration stipulated in said contract. Seventh. Plaintiff avers that it erected said bridge in accordance with said contract, and that upon the 5th day of June, 1892, same was duly received and accepted by the city engineer of said city, after having been thoroughly inspected and tested, and that thereafter, on the 23d day of June, 1892, said bridge was accepted by said city, and bas by it been used and maintained ever since, and is still beld, maintained, and being used by said city. Eighth. That prior to the execution of said contract, and with a view of raising a fund necessary to pay for the erection of said bridge and other bridges, the said defendant, under the authority conferred upon it by its charter to borrow money and issue bonds therefor for street improvements, executed and issued its certain bridge bonds to the amount of fifty thousand dollars, which bonds were by it sold prior to the time when said contract was entered into, and the cash received therefor, of which said cash the sum of fifteen thousand dollars ($15,000) was put into the treasury of said city, as a special fund to be applied to the payment of plaintiff berein for, the erection of the above-specified bridge, to the full extent of said contract price, and which said fund was in the treasury of the city of San Antonio, defendant herein, as a special fund for said purpose, when said contract was entered into, and had, been specially applied and. appropriated by said city to the payment of said contract price, in accordance with the stipulations of said contract, and which said fund said city, under its charter, could not apply' to other purpose except the payment of said contract price of
andsa1.d 1:undwas :in'satd city weasuryfor ,said purpose lit the: timft..rsa1d,7bridge was completed s.nd< accepted by said ,city, as heretofore 8,UegejJ, iaJ;ld which. said, sum is still iiJ tJJ.e treasury o'f 'satd city as a special flmd 'W the payment of, the contract price of said bridge, due' plaiIltlff,in accordance with the terms Gf said contract. Ninth. Thl:lt,by,l '.of the premises, defendant'· became bound .and promised W pay· to. pla,tntiff ,the said: sum of thirteen thousand dollarS ($13,000), as in'!ilaid contract,specified, with, six per cent. per 'annum interest 011 $6,l>QQ·tpereof,from the 1st day of ]'ebruary, 1891, upon which·date tbe iron, etc., sPecittled ,in /laid contract, was duly delivered to said city, and with six per cent.:per annum on, the baL'liI!l.OO tbereof from said 23d day of June, 1892, bUt, though often requested, 'has failed and refused to pay same, or any part thereof, except the sum of $6,500 paid upon delivery of said iron as in said, contract speCified.. Preml,ses conSidered, plaintiff' prays for process aetbelaw direCts, and, upon final trial;: it have judgment against defendant for the full amount sued for, to wit, $6,500, >together with interest thereon at cent. annum fr()m the 23<1 day of June, 1892. Tenth. Plaintitr further avers that in the event tbe court should hold that the contract bereinabove specified is not legal' and binding upon said city, . th#'P it says that, at the special Instance and request of defendant, it sold delivered to defendant, and erected for defendant, the iron 'Superstructure of the bridge across the San Antonio river, where Crockett street said river in said city, which said request was made by ordinance dulypass,ed.by the city council of said city on the 20th day of October, 1890, and that the said superstructure of said bridge, after it was so erected. wJMl..to wit, on the23d day of: by said city, and said city h:nmedia:tely went into possession, use, and occupation of same,' and is still using, occupying, and enjoying same. That the reasonable value of 'said Wd, aI\d erected for said city, was the sum of $13,000, and that by the city beCaIIl,e bound and obligatpd .andpromised t9 pay plaintiff, upon the delivery of said superstructtrre; the sum of $13,000. That said city, on or about the 1st day of paid to plaintiff, in part payment of said bridge, the sum of $6,500, and that ,the l'clj1ainingdue, to wit the sum of $6,500, is still together ,With legal interest thereon, from the 23d day of JU.Hl1,> the court hol(1 ,that plaintiff is not entitled to re.on$e contractheretn.sued upoll"then plaintitr prays for judgment agjJ;l,nst the. said city .for the. value ,of said bridge still remaining unpaid, as abll,ve.shown, with legal inteIlest thereon,.as ;above claimed.
mi$1Ver, as follows:'.
Defendant demurred to andanswe.red the petition, by its amended . . '
FJ,rst, that it excepts to plaintiff's petition, and says thEl same is insufiilaw to requirefurther'a:nswer fI'omthis defendant; and of this excellth.ln it prays the judgment of tM <!ourt. S,Pecially excepting, this defendant sayS! (1) That the petition of the plaintiff does not show tbat tbe plaintitr, being an.ineprI1orated company. has filed its charter to do buSiness in the state of Texas.ll$ is required by the laws of this state. @) 'l,'MUt does not appear from said contract sued upon by plaintitr, or frolli\.,plaintitr.s petition, that this defenda:btwas authorized by its charter or laws to enter .into a contract:, or. tocontracf tor a debt, for the purpOSe ot buHding brWges within the city. of· San Allton1o. (3) it does not appear.from plaintiff's petition that, at the time of the the bondsspec1tl:edin paragraph 6 of plaintiff's petition, that proY1!J:1.on was .made for lev)'1ng .andcoUecting· a sutfillient' tax to pay the in.and ,provide at least tJwoper·cent. fund, as is theconstiWtion .and laws of· the state' of Texas, and by the char1;el'j:llfdefendant cit)'. ',; : . .r;: it does:: not·: appear frompla:intiff's' l)etiti,dtl that. at the time of e:iecut!on ·of, the. contract mentioned in or at the time said contract was'authorized by defendant' city, or at the time the deb:t, created. ,by. deJendant city, for the el'ectiondf. the 'bridges men-
BERLIN IRON BRIDGE .00. ft. CITY OF
tioned In plaintiff's petition, that provision was made by this defendant to levy and annually collect a sufficient tax to pay the interest on said debt, and provide at least two per cent. as a sinking fund, as was required by the constitution and laws of this state, and by the charter of this defendant city. (5) It does not appear from plaintiff's petition why, in the event of the plaintiff, from any cause, failing to recover on the contract sued upon, that this plaintiff should, in this SUit, be permitted to recover the btidges described in plaintiff's petition, and be permitted to remove the same. And of these exceptions the defendant prays the judgment of the court, and that it be dimissed, with its costs. Further ans\vering, this defendant denies, all and singular, the allegations in plaintiff's petition contained, and of this defendant puts itself UPOIl the country. Further answering, this defendant says that if there was any contract made between plaintiff and defendant for the construct Im of the bridges, as alleged in plaintiff's petition, that said contract was illegal, and not binding upon this defendant, because said contract was obtained by the plaintiff by fraud, in this: 'l'hat the said plaintiff, by a combination with other bridge companies, prevented and paid said other bridge companies from bidding for the erection and construction of said bridges, and that the said plaintiff did pay to other bridge companies, and to divers other persons, firms, and corporations, large Bums of money, to prevent such other bridge companies, peJ'f'OJls. firms, and corporations from bidding for the construction of the bridges for this defendant, and that the payment of such sums by this plaintiff did prevent such other companies. firms,' and corporations from bidding for the erection of the bridges aforesaid. Further answering, defendant says that by reason of such combination as aforesaid this defendant was compelled to pay this plaintiff a greater sum of money for the construction of such bridges than said bridges were reasonably worth; that by reason of the combination aforesaid this defendant city has already paid to this plaintiff the sum of ten thousand dollnl's more for the construction of the bridges aforesaid than would have been paid had such combination aforesaid not been made. Wherefore, defendant pleads in offset against this plaintiff the said sum uf ten thousand dollars for damages sustained by this defendant by reason of the fraud practiced upon this defendant by this plaintiff, as above mentioned. Further answering, this defendant particularly denies that prior to the execution of the contract mentioned in plaintiff's petition, and with a view to raising the fund necessary to pay for the erection of said bridge, or other bridges, the defendant city executed and issued its certain bridge bonds, which bonds were by it sold, and cash sufficient received therefor to more than pay for the bridges above specified. But this defendant says that at no time, prior or since the execution of the contract mentioned in plaintiff's petition, has defendant city issued any bridge bonds upon which defendant city .is liable, and says that, if there are any outstanding bridge bonds issued by this defendant city, they were issued illegally, without authority of law, and at the time such bonds were issued no provision was made for the levying and collecting of a sufficient tax to pa.y the interest thereon. and provide at least two per cent. as a sinking fund, as is required by the constitution and laws of the state of Texas. and by the charter and ordinances of defendant city. Wherefore, this defendant prays for its judgment for damages in the sum of ten thousand dollars over and against the plaintiff, for costs, and for general relief.
Plaintiff demurred and replied to the amended answer by a supplemental petition, containing general and special exceptions thereto. Denman & Franklin, for plaintiff. A. Lewy, for defendant. MAXEY, District Judge. My conclusions upon the questions arising on demurrer are as follows:
: t.''1'hecontract entered into between the plaintiff and defendant 12th day of November, 1890, for the erection of the superon structure of a wrought-iron bridge across the San Antonio river, is invalid, as being in contravention of the plain provisions of the collsp:tution. The contract price of the superstructure was $13,000, one-half to be paid on the deIiV"ery of the iron material at the site of the bridge on Crockett street, an.d the remainder on the completionand acceptance of the bridge, which was on the 23d day of June, 1892. At the time of the execution of the contract, no provision was made for the assessment and collection of a tax to pay the interest on the debt thus created, and provide a sinking fund, as required by the organic law. Section 5 of article 11 of the state constitution provides that:
"No debt shall ever at any time be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon, and to create a sinKing fund of at least 2 per cent. thereon."
Section 7 of the same article contains the more emphatic declaration:
"But no debt for any purpose shall ever be incurred in any manner by any city or county, unless provision is made at the time of creating the same for levying and collecting a sufficient tax to pay the interest thereon, and to provide at least two per cent. as a sinking fund."
It is said by Justice Gaines in City of Terrell v. Dessaint, 71 Tex. 773, 9 S. W. 593, that:
"The language is general and unqualified, and we find nothing in the context to indicate that the framers of the constitution did not mean precisely what is said; that'is, that no city should create any debt without providing, by taxation, for the payment of the sinking fund and interest."
See, also, Biddle v. City of Terrell, 82 Tex. 335, 18 S. W. 691. The same may be said of the case now before the court. But the plaintiff, by its counsel, insifilts that it was not necessary for the dty to provide for the .payment of interest and the creation of a sinking fund, in referepce. to the debt in question, because it is averred that bridge bonds had been sold by the city, and the proceeds thereof placed in the city treasury, to' sec'Ure the erection of the bridge which the plaintiff contracted to build. It is true that section 4.'3 of the charter of the city authorizes the city to borrow money on its credit, and issue bonds therefor, to an amount not to eXCeed $50,000, for street improvements, and it is further provided section as follows,: . by
"That no debt shall be contracted, for the pa:rment wheroof such bonds are 1,ssued (except the side-walks· bonds) until such bonds shall have been disposed. of, and the proceeds. th.ereof paid intQ the city and wheIj. any .bonds are issued by the city, a fund shall be provided to pay the interest and two per cent. per annum on the principal. as a sinking fund to redeem the bonds, which fund shall not be diverted or drawn for any other purpose, and the city treasurer shall honor no draft drawn on said fund except to pay the interest or to redeem the bonds for which it was provided; and for the payment of such loan to levy a special tax over and above the general tax allowed by this act."
BERLIN IRON BRIDGE CO. tI. CITY OF SAN ANTONIO.
Without considering the question whether the issuance of bondlil denominated ''bridge bonds," would be a compliance with the charter provision the issuance of "street improvement bonds," it is sufficient to say that by the imperative mandate of the constitution, which rises superior to all charter provisions, "no debt" shall be created by any city except in the manner therein indicated. The method of creating debts, pointed out by the constitution, should be followed; otherwise, the debts are invalid, and not enforceable against the municipality. Where the meaning of constitutional provisions is plain and obvious, it is the duty of courts to give effect to such meaning, without placing upon the words used a forced construction, and one not intended by the framers of the instrument. Upon this point it is said by Justice Lamar in the case of Lake Co. v. Rollins, 130 U. S. 670, 671, 9 Sup. Ct. 651, that:
"We are unable to adopt the constructive interpolations ingeniously offered by counsel for defendant in error. Why not assume that the framers of the constitution, and the people who voted it into eXistence, meant exactly what it says? At the first glance, its reading produces no impression of doubt as to the meaning. It seems all sufficiently plain, and in such cases there is a well-settled rule which we must observe. The object of construction, applied to a constitution, is to give effect to the intent of its framers, and of the people in adopting it. This intent is to be found in the instrument itself; and, when the text of a Constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument. To get at the thought or meaning expressed in a statute, a contract. or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical axrangement in which the framers of the instrument have placed them. If the words convey a definite meaning, which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it. Newell v. -People, 7 N. Y. 9, 97; Hills v. Chicago, 60 TIL 86; Denn v. Reid. 10 Pet. 52<1,: Leonard v. Wiseman, 31 Md. 201, 204: People v. Potter, 47 N. Y. 375; Cooley, Const. Lim. 57; Story, Const. pax. 400; Bearostown v. Virginia, 76 Ill. 34. So, also, where a law is expressed in plain and unambiguous terms, whether those terms axe general or the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. U. S. v. Insher, 2 Cranch, 358, 399; Doggett v. Railroad Co., 99 U. S. 72. There is even stronger reason for adhering to this rule in the case of a constitution than in that of a statute, since the latter is passed by a deliberative body of small numbers, a large proportion of whose members are more or less conversant with the niceties of construction and discrimination, and fuller opportunity exists for attention and revision of such a character, while constitutions, although framed by conventions, are yet created by the votes of the entire body of electors in a state. the most of whom are little disposed, even if they were able, to engage in such refinements. The simplest and most obvious interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption. Such considerations give weight to that line of remark of which People v. Purdy, 2 Hill, 31, 36, affords an example. There, Bronson, J., commenting upon the danger of departing from the import and meaning of the language used to express the intent, and hunting after probable meanings not clearly embraced in that language, says: 'In this way the constitution is made to mean one thing by one man and something else by another, until in the end it is in danger of being rendered a mere dead letter, and that, too, where the language is so plain and explicit that it is impossible to make it mean more than one thing unless we lose sight of the instrument itself, and roam at large in the boundless fields of speculation.' ..
:Nor can the co:ai'tooncur with counsel in the position the contract of the parties was It periseo'f thecity,payable out (!)£ the current reventies. I do· not reo gard it a'S a debt Ofi that chariac1Jer;and hence it does not 'come within theprlliciple announced by court in.the case of City of Oorpus Christi v; 'Woessner, 58Tex. 462. See Biddle.v. City of Terrell, supra; Oity:of Terrell v. Dessaint, supra; Bell v.iLiYe Stock 00. (Tex.) 11 S.W) 344. . 2. Oounsel for the plaintiffdurther contends that if the express contract of the parties be held void the plaintiff should, neverthe· less, be'entitled to ,recover from the city the value of ,t'he:bridge, as upon an implied 'contract. The court is unable to appreciate the force of this argument. The.prodsions of the constitution above referred to apply equally to ,and implied contracts. Whether the be of the one character or the other, the city must provide for the interest alld sinking fund to meet the debt at maturity, in thelllanner indica,ted by tn.e,constitution. the agreement between tb.Et parties or implied, it i!'1 neverthe.less a contract,· and the' eity is prohibited from creatinl> a debt evidenced by such contract, ,unless the method pointed out by the constitution . is pursued... ,:See City of Bryan v. Page" 51 Tex.. 532. In the case last cited, 535,.1t IS by the supreme court of this state (Justice Gould deli1'ering the opinion) that "the law never impliesanobUgation to do it forbids the party to agree to do." in. thisclise show that the plaintiff has con· structed, . ; t bridge,which the defendant is:now using and enjoying, and for Which, upon principles of fair dealing, the plaintiff should be paid, . But that aspect of the case cannot be considered by the court;' a'nd,it may.pe here rem.arked, as was said by. the supreme court in the cas.e of v. Litchfield, 102 U. S. 293: .
"Our attention is called by counsel to the hardshlp of this case upon those whose money, it is alleged,has supplied the city 0:1' Litchfield with a system of waterworks, the benefits of which are daily enjoyed by its inhabitants.· The defense is chliracterized as fraudulent and dishonest. Waivirig all considerations of the rose in its moral aspects, it is only necessary to .l!lly that the settled principles of law cannot, with safety to the public, be disregarded ·in order to remedy the hardships of special cases."
In, accordance with the foregoing views, the general demurrer of the defendant, and its third, fourth, and sixth special exceptions, are sustained, and its first and second special exceptions are over· ruled.'J;'he defendanes fifth.j;1peciale:xception is also overruled, because it does not appear frOm the petHion that plaintiff seeks to recover and remove the bridge. Looking to the answer of defendant; it no defense to the suit, and without discussion the general demurr¢J,'.andspecial exceptions of the. plaintiff interposed to the answer be sustained. ; . <>rdered accordingly. '
LYMAN' V.NOB'l'HERN paC·· TELEV'ATOR CO.
LYMAN v. NORTHERN PAC. ELEVATOR CO. (CULLIFORD, Intervenor). (Circuit Court, D. Minnesota.
CONTRACTS OF CoRPORATION-CoNSTRUCTION.
August 29, 1894.)
An agreement under which the stockholders loan money to a corporation, which provides that each shaU loan his pro ratasbare of $275,235 which the number of his shares bears to the total amount of shares, al;ld that, the company's notes, at 12 mouths, shall be issued for the loan, payable out of the first net earnings, limits the eompany's liability on the notes to the net earnings; and, W;here tllere are none. the stockholders, or those to'whom they have indorsed the notes. cannot recover thereon from the c o m p a n y . ' . .
Action by David B. LYlflan against the Northern Pacific Elevator C9mpany. Thomas Culliford, holder of a note executed by defendant, intervenes, claiming the right to be placed on tb,e footing of a general creditor, and as such to be entitled to share in future dividends. Dla1m disallowed. ' John B. Sanborn, for intervenor. Da-vis;Kellogg & Severance, for· defendant Northern Pac. Elevator Co. and for M. J. Forbes, Receiver. WILLIAMS, District Judge. This cause has been heard upon a 'motion by the intervenor for jndgmentupon the petitidn 'of intervention a.nd answer. The following facts appear: On 01' about August 15, 1890, the Northern Pacific Elevator Com:pany was a corporation created under and by virtue of the laws of the state of Minnesota, owning a line of elevators through the states of Minnesota,North Dakota, Idaho, Washington, and Oregon; and being in need of money to carryon its business, and owing a large amount ilf money, the stockholders of the company made and entered into an agreement with each other whereby they subscribed for a loan to said company for $275,235, pro rata., according to the number of flhares held by each, and signed an agreement, agreeing to take the company'snote at 12 months, bearing 7 per cent. interest per annum. 'The agreement was in the following words and figures.
"Minneapolis, August 15th, 1890. "The undersigned stockholders in the Northern Pacific Elevator Company hereby each agree to loan to said company our pro rata share of the sum of two hundred and seventy-five thousand two hundred and thirty-five dollars, whict the number of shares held by each bears to the total number held by the Signers thereof. The company's note, at twelve months. with intel'est at seven per cent. per annum, shall be issued for the' loan, and paid out 'of the' :tirst net earnings of the company before dividend. Owners of ten .thousand shares to subscribe to make this binding."
The said agreement was signed by all the stockholders making said loan,exceeding 1p,000 shares. One' of the stockholders so signing said agreement was L. Fletcher, and he received the company's note therefor, which was renewed, and which said original note and renewal note read as follows:
" l , 9 9 6 . 7 4 . M i n n e a p o l i s , Minn., Sept. 1st, 1892. "One year after date, we promise to pay to the order of L. Fletcher nine-teen hundred and: ninet;r-six 74/100 dollars at our office in Minneapolis, Min-