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It is claimed that the court below erred in holding the act (20 S. C. St. at Large, 203) under which the bonds were issued to be constitutional, and it is insisted that the same is void, for the reason that it authorizes the issue of municipal bonds in aid of the construction of a railroad, when such authority, under the constitution of South Carolina, can only be given for corporate purposes. It is true that such legislation can only be sustained by holding that the construction of a railroad is in aid of the legitimate purposes of a municipal corporation, which, in substance, the court below found, and in which conclusion we concur. The constitution of South Carolina (article 9, § 8) authorizes the legislature to permit municipal corporations to assess and collect taxes for corporate purposes, and none other. This question is no longer a doubtful one, as the uncertainties formerly existing relative thereto have been removed by numerous recent decisions of our courts of final resort. The legislature can enlarge the powers of municipal corporations, as was done in the present case; and it may also determine what the corporate purposes are that it has authorized the municipality to exercise. Such a corporation is part and parcel of the governmental power of the state. We quote approvingly from the opinion of the learned judge who decided this case below, as follows:

"The legislature may declare that corporate purposes may be promoted by affording aid to a railroad. The unchanging course of legislation shows that this is a public purpose as well as a corporate purpose, and without question cities, towns, villages, and counties have again and again been clothed with this power. It is true that in Floyd v. Perrin, 30 S. C. 1, 8 S. E. 14, arguendo, the court says that counties have the right to aid in such construction because they have jurisdiction over highways, and a railroad is a highway. But streets in cities, towns, and villages are also highways. And, although the authority of the county over its highways ends at its boundaries, a county has the right to aid a railroad whose termini are in other counties, perhaps in other states. Floyd v. Perrin, relied on in argument, does not decide that aid to a railroad cannot be a corporate purpose. That case only decides this: Townships in South Carolina being mere territorial subdivisions of land, with no public duty or function whatever, no corporate or public purpose, an act declaring them corporations and permitting them to subscribe to a railroad is not constitutional. Why? Because, having no corporate purpose, the investment in railroad stock could be used for no purpose whatever. Making them corporations, authorizing them to invest in railroad stock, were but steps-incomplete steps--to secure the constitutionality of the action. The legislature should have given them a corporate purpose. This it did not do, and the whole thing was void. But cities, towns, villages, and counties have well-defined corporate purposes which can be promoted by such investments. The existence of these corporate purposes, and their promotion by aiding railroad enterprises, gives them their constitutional character. As a conclusion of law, this act is not in conflict with section 8, art. 9, of the constitution."

The supreme court of South Carolina in State v. Whitesides, 30 S. C. 584, 9 S. E. 661, said:

“Now, railroads have been declared by the courts in most of the states, our ovu included, and by the supreme court of the United States, as improved highways, and therefore as much entitled to be aided by the taxing power as ordinary highways. 1 Dill. Mun. Corp. (30 Ed.) $ 158; Cooley, Const. Lim. (20 Ed.) c. 4. This may have been doubted once, and, if it was an open question, might still be doubted, but the decisions in that direction have been so numerous and so uniform that, to use the language of Judge Dillon, 'if they have not terminated doubt, they have at least ended judicial discussion. The subject-matter, then, of this act, was within the range of a public purpose, and so far legitimate; but it may be urged that the purpose here, being confined to mere townships, limited localities, and not extending to the public at large, could not fall within the doctrine above. What is the meaning of the term ‘public'? This term is opposed to the term 'private,' and, according to the best lexicographers, means 'pertaining to or belonging to the people; relating to a nation, state, or community.' But to make a matter a public matter it need not pertain to the whole nation or state. It is sufficient if it pertains to any separate or distinct portion thereof, or community.”

In the case of State v. Neely, 30 S. C. 604, 9 S. E. 664, the supreme court says:

“The proposition that the construction of a railroad is such a public purpose as to warrant the levy of taxes to aid in building it is too well settled by the very decided weight of authority to admit of further discussion, although, if the question were an open one, its correctness might well be disputed. So, too, it seems to be settled by the weight of authority that the legislature may not only delegate this power of levying taxes to aid in the construction of a railroad to municipal corporations, but may also, by the exercise of its original power of taxation, directly impose such tax upon any territorial division of the state, to aid in the construction of a railroad supposed to be of special advantage to the people residing within such territorial division, provided a majority of those people have signified their assent to the imposition of such a tax."

Chief Justice McIver, in his opinion in the case of Floyd v. Perrin, supra, says:

“So, too, perhaps, the general assembly, but for the fact that the constitution (section 19, art. 4) has clothed the county commissioners with jurisdiction over roads, highways, etc., might have passed an act creating the township of Ninety-Six a corporation, and investing it with the control and management of highways; and, as promotive of that corporate purpose, might have invested it with power to levy taxes to aid in the construction of a railroad, upon the doctrine, which, after much conflict of opinion, seems to be settled, that a railroad is a highway, and therefore a municipal corporation, charged with the supervision and control of highways, may be invested with power to aid in its construction.”

We conclude that the bonds were constitutionally issued, for a corporate purpose comprehended by the charter of the town of Darlington, which also contained the power to carry that purpose into effect.

It is also claimed that section 29 of the charter of the town of Darlington is in conflict with section 17, art. 9, of the constitution of the state of South Carolina, for the reason that no limit is fixed in said section as to the amount in the aggregate of aid that can be given by the town towards the construction of railroads. But we think that in construing the statute or charter, the presumption is that the legislature intended that bonds might be issued to the full limit authorized by the constitution,—“in any amount" not prohibited by the organic law. If the said section of the charter and the requirement of the constitution alluded to can be reconciled, it must be done, and, in our judgment, there is no difficulty in doing so.

It is also insisted that the assessment rolls of the real and personal estate within the town of Darlington for the year 1890 in. cluded such property owned by the Darlington Manufacturing Com pany, and the claim is made that the real and personal property


of that company were exempt from taxation, and should have been excluded from the amount on which the tax was levied; thus making the aggregate amount of the bonds issued a sum greater than the 8 per cent. limit mentioned in the constitution. But can the position assumed—that the property of that company was not liable to taxation by the town of Darlington—be maintained ?

We are unable to find any provision of the constitution under which such exemption can be justified. The said property was not used for either municipal, educational, literary, scientific, religious, or charitable purposes, and hence it was, by the express mandate of the organic law, subject to taxation, for the payment of all debts contracted under authority of law. The town authorities had no power to release it, nor did they attempt to do so.

On the contrary, they assessed and taxed it. The statute cited (Gen. St. 1882, § 169, subd. 23) does not authorize the omission of such property from assessment and taxation, but requires it to be duly taxed; and the fact that such enactment permits the subsequent return of the greater part of the taxes so levied and collected is immaterial so far as the point we are now considering is concerned. The assessed value of the property of said company was properly included in the aggregate valuation of the property liable to taxation in the town of Darlington for the year 1890, and the court below did not err in so holding.

The plaintiff in error insists that the assessment made by authority of the provisions of the charter of the town of Darlington, on which the levy of taxes for the year 1890 was based, was unlawful, because not completed and filed within the time allowed by said charter, but we think that, so far as the town itself is concerned, the contention is without merit. Those whose property was so assessed, who were required to pay the taxes, and who were familiar with the mode of making and returning the assessment, made no complaint, while the authorities of the town ratified the assessment, and confirmed the legality of the return by laying and collecting the tax. It would not be proper to now permit those who so made the assessment, and who imposed, collected, and enjoyed the benefits of the tax levied by virtue of the same, to question the validity of their own act. There are many reasons why the town of Darlington should be compelled to respect its obligations in respect to the bonds mentioned and the coupons now in suit, and no good cause has been shown why it should be permitted to falsify its own representations, evade its liabilities, and involve others who have made expenditures and investments on the faith of its repeated promises and presumed honesty.

The further and last objection to the validity of the bonds we now consider, although we have, in effect, disposed of it in connection with other matters. It is insisted that the town of Darlington disposed of the bonds at less than their par value, which it is claimed was prohibited by the statute in such cases made and provided; and also it is contended that such prohibition prevented the issue of the bonds in exchange for the stock of a railroad company. But the facts are, as shown by the evidence, that the proceeds of


the bonds applied to the construction of the road constituted a fund equal in amount to the full par value of the bonds, and also that for the stock sold by the town its treasury received in cash a sum of money equal to the par value of the stock so sold. The statute authorized the town to issue the bonds, and the railroad company expended in the construction and equipment of the road a sum from the proceeds of the bonds equal to their par value. It is, we think, clearly shown that the bonds were disposed of by the town at par.

It is not for us to consider whether or not the subscription made by the town of Darlington, in its bonds, towards the construction of the railroad, was a profitable one. It had the right to subscribe, and the power to issue bonds. The road desired and contracted for has been built according to the terms of the agreement relating to the same, and is now in operation. The town has received the consideration stipulated for when the bonds were issued, and is now enjoying the benefits of the same.

The coupons offered in evidence were past due, and unpaid. The town of Darlington was liable for the same, and judgment was properly rendered therefor. The defense was without merit, and the judgment of the court below is affirmed.

(Circuit Court of Appeals, Fifth Circuit. June 4, 1895.)

No. 379.

In an action to recover damages for a personal injury sustained by a workman by being crushed under an elevator, where there was evidence tending to show that the boy running the elevator and other agents of defendant had been warned to stop it, held, that the questions both of negligence and contributory negligence were for the jury.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

This was an action by J. L. Junod against D. H. Holmes to recover damages for personal injuries sustained by being crushed under an elevator while working in the elevator shaft of defendant's building. At the trial, before the case was given to the jury, defendant moved the court to direct a verdict in his favor, which motion was denied. The jury returned a verdict for plaintiff in the sum of $1,500, and judgment was entered accordingly. Defendant brings error.

E. H. Farrar, B. F. Jonas, E. B. Kruttschnitt, and Hewes T. Gurley, for plaintiff in error.

Charles Louque, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and BRUCE, District Judge.

PARDEE, Circuit Judge, delivered the opinion of the court.

The evidence in the case tended to show that the boy in charge of the elevator and other agents of the plaintiff in error were warned

that the defendant in error was to be put to work in the elevator shaft to do the painting required by the Schneider contract, and that assent was given to the proposal to stop running the elevator while said painting was being done. Whether this, with the other circumstances shown, was sufficient notice to the plaintiff in error to charge him with negligence in permitting the elevator to be run, whereby the defendant in error was injured, was a proper question for the jury. On the facts, reasonable men might not draw the same inferences as to negligence. See Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679; Gardner v. Railroad Co., 150 U. S. 349, 361, 14 Sup. Ct. 140. The same may be said with regard to the question of contributory negligence on the part of the defendant in error, as the evidence tended to show that he did take certain precautions to protect himself from running the elevator before entering upon the work. While it is true that from previous experience of the defendant in error while working in the same elevator shaft, as well as from the nature of the work, it may be said that the defendant in error knew the danger of the occupation and assumed the risks thereof, yet it cannot be said that he also assumed the risk of negligence on the part of the plaintiff in error, and whether the plaintiff in error was guilty of negligence, as said above, was a question proper to be determined by the jury. For these reasons, we are of opinion that the refusal of the trial judge to instruct the jury to find for the defendant in error on the grounds assigned was not erroneous. This refusal being the only error assigned, the judgment is affirmed.

(Circuit Court of Appeals, Seventh Circuit. July 10, 1895.)

No. 233.


Where the judgment or decree in a case, upon the mandate of an appellate court, determines questions not covered thereby, it is subject to re

view, by appeal or writ of error, in the proper appellate court. 2. JUDGMENT—INTEREST-SPECIAL FINDING.

Upon trial of a case by the court without a jury, the court made a special finding of facts from which the amount then due the plaintiff for principal and interest, if he was entitled to recover, could be computed, but gave judgment for the defendant. The supreme court, on error, reversed the judgment, and directed the entry of judgment for the plaintiff on the finding. The statute of Wisconsin, where the case arose (Rev. St. $ 2922), allows the recovery of interest on a verdict until the entry of judgment. Held, that the plaintiff was entitled to have interest computed, to the time of entry of judgment on the mandate of the supreme court, upon the whole amount of principal and interest due him at the time the finding was made. In Error to the Circuit Court of the United States for the Western District of Wisconsin.

This was an action by Eliab W. Metcalf against the city of Watertown, Wis., on a judgment. The case was twice carried to the supreme court on error. See 9 Sup. Ct. 173, 128 U. S. 586, and 14 Sup. Ct. 947, 153 U. S. 671. A judgment having been entered on

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