They are also required to perform all other duties as fiscal agents of the Government which may be imposed by law, or by any regulation of the Treasury Department made in conformity to law. A clerk of the collector is not an officer of the United States within the provis532] ions of this section; and it is only to persons of that rank that the term public officer, as there used, applies. An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person in the service of the Government who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution. This subject was considered and determined in United States v. Germaine, 99 U. S. 508 [25: 482], and in the recent case of United States v. Mouat, 124 U. S. 303 [ante, 463]. What we have here said is but a repetition of what was there authoritatively declared. The number of clerks the collector may employ may be limited by the Secretary of the Treasury; but their appointment is not made by the Secretary, nor is his approval thereof required. The duties they perform are as varied as the infinite details of the business of the collector's office, each taking upon himself such as are assigned to him by the collector. The officers specifically designated in section 3639 are all charged by some Act of Congress with duties connected with the collection, disbursement or keeping of the public moneys, or to perform other duties as fiscal agents of the Government. A clerk of a collector, holding his position at the will of the latter, discharging only such duties as may be assigned to him by that officer, comes neither within the letter nor the purview of the statute; and we are referred to no other Act of Congress bearing on the subject, making a clerk of a collector a fiscal agent of the Government or bringing him within the class of persons charged with the safe keeping of any public moneys. The case of United States v. Hartwell, 73 U. S. 6 Wall. 385 [18: 830], does not militate against this view. The defendant there, it is true, was a clerk in the office of the assistant treasurer at Boston; but his appointment by Senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not otherwise provided for, which should be established by law, declares that "The Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments." There must be, therefore, a law authorizing the head of a department to appoint clerks of the collector before his approbation of their appointment can be required. No such law is in existence. Our conclusion, therefore, is that section 3639 of the Revised Statutes does not apply to clerks of the collector, and that such clerks are not appointed by the head of any department within the meaning of the constitutional provision. It follows that our answers to the second and third questions certified to us must be in the negative. An answer to the first question is there fore immaterial. LAURA E. FRENCH, Piff. in Err., v. MOSES HOPKINS ET AL. (See S. C. Reporter's ed. 524, 525.) Jurisdiction over state decision-federal ques tion-citizenship of parties. 1. Where the record fails to show that any right, title, privilege or immunity, under the Constitution in the state court, this court has no jurisdiction. or laws of the United States, was set up or claimed 2. A decision of the state court affirming a sale of mortgaged property as a whole and in one parcel, of division into parts, involves no question of fedunder a decree of foreclosure, when it was capable eral law. 3. The jurisdiction of this court, under section 709 of the Revised Statutes, for the review of a decitizenship of the parties, but on the questions inIcision of a state court, is not dependent on the volved. [No. 1108.] Submitted Jan. 30, 1888. Decided Feb. 6, 1888. N ERROR to the Supreme Court of the State missed. The facts are stated by the court. Mr. Wm. M. Stewart, for defendants in error, in support of motion: The error complained of consists in the provision in the judgment of foreclosure directing the mortgaged premises to be sold in one parcel. The plaintiff in error does not claim any right, title, privilege or immunity under the Constitution of the United States. that officer under the Act of Congress could only of California. On motion to dismiss. Disbe made with the approbation of the Secretary of the Treasury. This fact, in the opinion of the court, rendered his appointment one by the head of the department within the constitutional provision upon the subject of the appointing power. The necessity of the Secretary's approbation to the appointment distinguishes that case essentially from the one at the bar. The secretary, as already said, is not invested with the selection of the clerks of the collector; nor is their selection in any way dependent upon his approbation. It is true the indictment alleges that the appointment of the defendant as clerk was made with such approbation, but as no law required this approbation the averment cannot exert any influence on the mind of the court in the disposition of the questions presented. The fact averred, if it existed, could not add to the character, or powers, or dignity of the clerk. The Constitution, after providing that the President shall nominate and, by and with the advice and consent of the Miss. & M. R. Co. v. Rock, 71 U. S. 4 Wall. 177 (18:381). Messrs. J. W. Douglass and C. M. Jen. nings, for plaintiff in error, in opposition: It is not necessary to confer jurisdiction here that the record show in ipsissimis verbis that a federal question was presented, or that the particular clause in the National Constitution alleged to be violated should be set out or referred to in the pleadings. Murdock v. Memphis, 87 U. S. 20 Wall. 590 [524] (22:429); Furman v. Nichol, 75 U. S. 8 Wall. | cel, when it was capable of division into parts. It is enough if the record involves a substantial controversy on this point. Arrowsmith v. Harmoning, 118 U. S. 194 (80: 243); Northwestern University v. People, 99 U. 8. 309 (25:387); Chenango Bridge Co.v.Binghamton Bridge Co. 70 U. S. 3 Wall. 51 (18:137); Starin v. Mayor of N. Y. 115 U. S. 257 (29:390); Chicago L. Ins. Co. v. Needles, 118 U. S. 574 (28: 1084); Southern Pac. R. R. Co. v. California, 118 U. S. 109 (30:103). Under section 580 of the Code of Civil Procedure of the State of California the court may grant any relief consistent with the case made Ly the complaint and embraced within the is Bue. Raun v. Reynolds, 11 Cal. 19; Reynolds v. Harris, 14 Cal. 678, 679; Gage v. Rogers, 20 Cal. 91; Lamping v. Hyatt, 27 Čal. 102; Gautier v. English, 29 Cal. 165; Parrott v. Den, 34 Cal. 79; Lothian v. Wood, 55 Cal. 159; Simonsɔn v. Blake, 12 Abb. Pr. 331; Ames v. Lockwood, 13 How. Pr. 555; Merey's Appeal, 4 Pa. 83; Wolcott v. Schenck, 23 How. Pr. 385. A motion to set aside was proper process to cure any irregularities of sale. The court of original jurisdiction set aside the sale, but the supreme court, on appeal, confirmed it, and gave judgment accordingly. In doing this, it was held to be "within the jurisdiction of the court by its judgment to direct that the property should be sold in one or several parcels," and that there was nothing in the statutes of the State to the contrary of this. That was the only decision in the case, and it certainly involved no question of federal law. Counsel are in error in supposing that our jurisdiction, under section 709 of the Revised Statutes, for the review of a decision of the highest court of a State, is dependent at all on the citizenship of the parties. In such cases we look only to the questions involved. Dismissed. ETNA LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appt., 0. TOWN OF MIDDLEPORT. (See 8. C. Reporter's ed. 534-551.) San Francisco v. Pixley, 21 Cal. 57; Boles v. Town bonds-when payment of appropriation— Held to apply to sales under decree of foreclosure. Kent v. Laffan, 2 Cal. 596, 597; Harlan v. Smith, 6 Cal. 173; Gross v. Fowler, 21 Cal. 396; Stout v. Macy, 22 Cal. 647. The affirmance of sale, as made en masse, was a denial of the due process of law, and equal protection of the law, secured by section 1, art. 14, Amendments to Federal Constitution. San Bernardino Co. v. Southern Pac. R. Co. 118 U. S. 422 (30:127); Barbier v. Connolly, 113 U. S. 27 (28:923). The judicial interpretation of a law is as much a part of a law as if written therein. Lehigh Water Co. v. Easton, 121 U. S. 888 (30:1059); Walker v. Whitehead, 83 U. S. 16 Wall. 814-817 (21:357); Bronson v. Kinzie, 42 U. S. 1 How. 311-317 (11:143–145); McCracken v. Hayward, 43 U. S. 2 How. 608-612 (11:397899); Antoni v. Greenhow, 107 U. S. 769-774 (27:468-471). The sale was not in strict pursuance of the judgment. Section 694, Code of Civil Procedure; Onesti v. Freelon, 61 Cal. 625; Altschul v. Doyle, 48 subrogation. The Town of Middleport having, in pursuance of a Statute of Illinois, voted an appropriation to the Chicago, Danville and Vincennes Railroad Cominhabitants of the Town, issued bonds, payable pany, to be raised by a tax on the property of the with interest to bearer, for a sum large enough to could be sold, and delivered them to the railroad include interest and the discount for which they company, and they were accepted by that company, and sold and delivered to plaintiff. Held: 1. That the purchase of these bonds by plaintiff was no payment of the appropriation voted by the Town to the railroad company; 2. That, the bonds having been held to be void in a suit between the plaintiff and the Town, this did not operate as a subrogation of the plaintiff to the right of the company, if any such existed, to enforce the collection of the appropriation voted by the Town; (1) that the person seeking its benefit must have 3. The doctrine of subrogation in equity requires paid a debt due to a third party before he can be substituted to that party's rights; and (2) that in doing this he must not act as a mere volunteer, but on compulsion, to save himself from loss by reason of a superior lien or claim on the part of the person to whom he pays the debt, as in cases of sureties, prior mortgagees, etc. The right is never accorded inequity to one who is a mere volunteer in paying a debt of one person to another. [No. 1184.] Submitted Jan. 4, 1888. Decided Feb. 6, 1888. Cal. 535; Hubbard & Sullivan, 18 Cal. 525; APPEAL from a decree of the Circuit Court Clarke v. Huber, 25 Cal. 593. Mr. Chief Justice Waite delivered the opin[525] ton of the court: This motion is granted. The record fails to show, either expressly or by Implication, that any right, title, privilege, or immunity, under the Constitution or laws of the United States, was specially set up or claimed in either of the courts below. This is fatal to our jurisdiction. Spies v. Illinois, 123 U. S. 181, 181 [ante, 80, 90]. The only question below was whether a Bale of mortgaged property under a decree of foreclosure should be set aside because the property had been sold as a whole and in one par of the United States for the Northern District of Illinois, dismissing on demurrer the bill of the Etna Life Insurance Company, to enforce the collection of a demand against the Town of Middleport. Affirmed. The facts are stated in the opinion. Messrs. Francis Fellowes, J. H. Sedgwick and O. J. Bailey, for appellant: These contracts granting aid were completed, as binding obligations on the towns in favor of the railroad company, at the polls. Chiniquy v. People, 78 Ill. 576; Chicago & 1. R. Co. v. Pinckney, 74 Ill. 277; Fairfield v. Gal latin Co. 140 U. S. 47 (25:544). The last case overrules Concord v. Portsmouth [526] [534] Savings Bank, 92 U. S. 625 (23:628); Concord v. Robinson, 121 U. S. 171 (30:888). The issuing of void bonds by the officers of the Town to represent or fund these contracts, and the acceptance of such bonds by the railroad company, and its negotiation of them to holders for value, did not extinguish these valid obligations of the towns. Marsh v. Fulton Co. 77 U. S. 10 Wall. 676 (19:1040); Louisiana City v. Wood, 102 U. S. 298 (26:155); Paul v. Kenosha, 22 Wis. 256; Curtis v. Leavitt, 15 N. Y. 9; Nelson v. Mayor of N. Y. 63 N. Y. 544; Mayer v. Mayor of N. Y. 63 N. Y. 455; Anthony v. Jasper Co. 101 U. S. 693 (25:1005). The railroad company holds them as trustee for our benefit. Wood v. Louisiana City, 5 DiH. 124; Louisiana City v. Wood, supra. A purchaser will be subrogated to all the rights of his vendor. Sheldon, Subrogation, § 34. The equitable assignee of a chose in action has the right to decree of specific performance of the contract. Mechanics Bank of Alexandria v. Seton, 26 U. S. 1 Pet. 299 (7:152); Adams, Eq. 80, 5th Am. ed. 189; Fortescue v. Barnett, 3 Myl. & K. 36; Ex parte Pue, 18 Ves. Jr. 140; 3 Pars. Cont. 5th ed. 876; 2 Story, Eq. Jur. § 724; Meyer v. Mintonye, 106 11. 414; 1 Story, Eq. Pl. $ 635-637; Springer v. Springer, 43 Pa. 518; Mosier's Appeal, 56 Pa. 76; Eaton v. Hasty, 6 Neb. 419; 3 Pomeroy, Eq. § 1419; note 1; Payne v. Hook, 74 U. Š. 7 Wall. 425 (19:260). The equity of subrogation arises where plaintiff's right rests not upon contract, but upon a state of facts which give it. In such cases the proper remedy is not at law but in equity. Mosier's Appeal, and Eaton v. Hasty, supra; Goldmith v. Stewart, 45 Ark. 154; McHany v. Schenk, 88 Ill. 357; Morgan v. Iammett, 23 Wis. 80; Talbott v. Wilkins, 31 Ark. 421. Means v. Harrison, 114 III. 248; McMillan v. Chiniquy v. People, 78 Ill. 576; Chicago & I. The records of a town, required to be kept by its clerk, are evidence. 1 Greenl. Ev. §§ 483, 484; 1 Dill. Mun. Corp. 3d ed. § 305. The fact that the contract is on its face conditional does not bring it within the five years' section. Dunning v. Price, 56 Ill. 339; Bullard v. Bell, 1 Mason, 243; Ang. Lim. chap. 10, § 80. The appropriation of money to encourage a railroad is a town purpose. Chicago, D. & V. R. Co. v. Smith, 62 Ill. 268. The records constitute a specialty not within the Statute of Limitations. Pease v. Howard, 14 Johns. 479; Ang. Lim. 4th ed. §§ 86, 87; Bourland v. Peoria Co. 16 IIL 538. Mr. Robert Doyle, for appellee: A party buying property, at an execution sale, the title to which fails, is not subrogated to the rights of the judgment creditor. Childress v. Allen, 3 La. 477. It is only in cases where a party paying stands in the relation of surety, or is compelled to pay in order to protect his own interests, or in virtue of legal process, that equity substitutes him in place of creditor. Nolte v. Creditors, 7 Mart. N. S. 602; Curtis v. Kitchen, 8 Mart. O. S. 706; Cox v. Baldwin, 1 La. 401. In case of an ordinary vendee at a sheriff's sale, there can be no substitution. Richmond v. Marston, 15 Ind. 134; Peet v. Beers, 4 Ind. 48; Rardin v. Walpole, 38 Ind. 146; McClure v. Andrews, 68 Ind. 100; Bishop v. O'Con That we are chargeable with notice of the in-ner, 69 Ill. 433. validity of the bonds does not affect our rights to subrogation. Anthony v. Jasper Co. 101 U. S. 697 (25:1008); Gause v. Clarksville, 5 Dill. 180; Wood v. Louisiana City, 5 Dill. 124; Shirk v. Pulaski Co. 4 Dill. 214; Newton School Dist. v. Lombard, 2 Dill. 493. We had the right to assume that all facts necessary to give the supervisors authority to issue the bond had been complied with. Pompton v. Cooper Union, 101 U. S. 196 (25:803). We are not barred from our equity because we did not set it up in the former case. Anthony v. Jasper Co. supra, Block v. Bourbon Co. 99 U. S. 693 (25:493); Cromwell v. Sac Co. 94 U. S. 353 (24:198); Davis v. Brown, 94 U. 8. 428 (24:206). Mere delay alone, short of the period fixed as a bar by the Statute of Limitations, will not preclude the assertion of an equitable right. Gibbons v. Hoag, 95 Ill. 69; Thompson v. Scott, 1 Bradw. 641; Hubbard v. U. 8. Mortgage Co. 14 Bradw. 40; U. 8. v. Alexandria, 19 Fed. Rep. 609; S. O. 4 Hughes, 545. The question of limitation must be decided upon the law in force at the time when the contract was made. Anyone being under no legal obligation or liability to pay the debt is a stranger and, if he pays the debt, a mere volunteer. Young v. Morgan, 89 Ill. 199; Beaver v. Slanker, 94 Ill. 175; Bishop v. O'Conner, 69 Ill. 431; Shinn v. Budd, 14 N. J. Eq. 236; Sanford v. Mc Lean, 3 Paige, 122; Kitchell v. Mudgett, 37 Mich. 85; Gadsden v. Brown, Speers, Eq. 41; Story, Eq. 477-8, 589 et seq.; Sheldon, Subrogation, 241 and authorities cited; Otis v. Cullum, 92 U. S. 448 (23:496). The party attempting to recover being in pari delicto, no recovery could be had. Oneida Bank v. Ontario Bank, 21 N. Y. 496; Tracy v. Talmage, 14 N. Y. 162; Curtis v. Leav itt, 15 N. Y. 99; Sacketts Harbor Bank v. Codd, 18 N. Y. 240. The Statute of Limitations is a good defense. Votes were mere propositions by the people to railroad companies, to be accepted or not as they saw fit, and not in any sense of the term contracts in writing. Concord v. Portsmouth Savings Bank, 92 U. S. 629 (23:630); Marsh v. Fulton Co. 77 U. S. 10 Wall. 682 (19:1042); Concord v. Robinson, 121 U. S. 166 (30:886); Anthony v. Jasper Co. 101 U. S. 696 (25:1007). The five years' limitation was applied in: [535] Oran v. People, 19 Bradw. 176; Eaton v. Henagan, 17 Bradw. 156; School Directors Dist. No. 5 v. School Directors Dist. No. 1, 105 Ill. 655; Hancock v. Harper, 86 Ill. 445; Ramsay v. Clinton Co. 92 Ill. 228. Appellant has no standing in a court of Otis v. Cullum, supra; Lambert v. Heath, 15 If there were any facts that show that com- Henry Co.v. Winnebago Swamp Drainage Co. 52 Ill. 301; Bell v. Johnson, 111 Ill. 379; Walker v. Ray, 111 Ill. 320. Equity is governed by a Statute of Limita- Godden v. Kimmell, 99 U. S. 201 (25:437); towns acting under township organization, Kinney v. Knoebel, 51 Ill. 126; Paul v. Ken-payment of such appropriations so made." The judgment estops, not only as to every Davis v. Brown, 94 U. S. 428 (24:206); Campbell v. Rankin, 99 U. S. 263 (25:436); Stout v. Lye, 103 U. S. 71 (26:430); Scotland County v. Hill, 112 U. S. 185 (28:693); Bryan v. Kennett, 113 U. S. 198 (28:914); Case v. Beauregard, 101 U. S. 692 (25:1005). Mr. Justice Miller delivered the opinion of the court: This is an appeal from a decree of the Circuit Court of the United States for the Northern District of Illinois, dismissing on demurrer the bill of the Etna Life Insurance Company, the present appellant. It is then alleged that on the 8th day of June, 1867, after due publication of notice according to law, a meeting of the legal voters of said Town of Middleport was held, at which they cast their votes by ballot upon the proposition to levy and collect a tax of $15,000 upon the taxable property of the inhabitants of the Town to aid in the construction of said railroad, providded Watseka, a city in the County of Iro quois, situated in or near the south line of said Town, should be made a point in said road; that it appeared, on counting the votes, that 323 [53 were in favor of and 68 were against such tax, and that thereupon the proposition was duly declared carried, the proceedings relating to the meeting and vote duly attested by the town clerk and the moderator of the meeting, and by said clerk duly recorded in the town records. The bill further avers that the railroad company accepted this vote and appropriation of the Township, and, relying upon such vote and the good faith of said Town, accepted the condition of the appropriation, and constructed and completed its track through said Town; that on the 10th day of February, 1871, the board of town auditors adopted a resolution, of which the fol "Whereas the Township of Middleport did, on the 8th day of June, 1867, vote aid to the Chicago, Danville & Vincennes Railroad Company to the amount of fifteen thousand dollars, and it appearing that said Township is unable to pay such amount in money: The substance of the bill is that the com-lowing is a copy: The bill recites that this railroad company "Therefore resolved by the board of auditors of said Township that bonds issue to said Chicago, Danville & Vincennes Railroad Company to the amount of fifteen thousand dollars, together with a sufficient amount to cover the discount necessary on said bonds in negotiating the same, to wit, one thousand five hundred dollars, said bonds to be dated February 20, A. D. 1871, and to bear interest at the rate of 10 per cent from date per annum.' " In pursuance of this resolution it is alleged that, on the 24th day of March, 1871, the supervisor and town clerk of Middleport executed In the argument of the demurrer before the circuit court several objections to the bill were taken. The defendant in error, however, relies here upon three principal grounds of defense: first, it denies the right of subrogation, upon which rests the whole case of the complainant; second, it relies upon the Statute of Limitations of five years; and third, it asserts that the former decree in the state court is a bar to the action here. The circuit court held that the Statute of Limitations was a bar to the present suit, and dismissed the bill on that ground. the fifteen bonds which are the subject of this | solvent, may be made a party defendant thereto. suit; that "the said bonds were numbered one to fifteen, inclusive, and were delivered to the said railroad company, upon the fulfillment of the conditions of said vote, in payment of ninety cents on the dollar of the appropriation made to said company by said vote, both parties believing that said bonds were fully authorized by law and were legal, valid, and binding on said Town, and also believing them to be legal evidences of the debt in favor of said company incurred by said Town in voting said appropriation." It is then alleged that, on or about the 26th 537] day of June, 1876, the Town of Middleport, which up to that time had paid the interest upon the bonds, filed a bill in equity in the Circuit Court for the County of Iroquois against the complainant corporation as the holder of said bonds, and certain other persons, “alleging, in substance, the making and issuing of said bonds, as herein stated, that the same were delivered to your orator, that your orator was the holder thereof, and that the same were made and issued without authority of law and were invalid, and praying the court so to decree and to enjoin your orator from collecting the same, and for other relief, as by the record in the cause, upon reference thereto, will fully appear. 38] " It is averred that the circuit court dismissed the bill, but that upon appeal to the Supreme Court of Illinois the decree dismissing it was reversed, that court holding that these bonds were void as issued without authority of law; and the case was remanded to said circuit court for further proceedings; whereupon, it passed a decree in conformity with the opinion of said supreme court, adjudging the bonds void, and enjoined their collection. But we regard the primary question, whether the complainant is entitled to be substituted to the rights of the railroad company after buying the bonds of the Township, a much more important question, and are unanimously of opinion that the transaction does not authorize such subrogation. The bonds in question in this suit were delivered by the agents of the Town of Middleport to the railroad company, and by that company sold in open market as negotiable instruments to the complainant in this action. There was no indorsement, nor is there any allegation in the bill that there was any express agreement that the sale of these bonds carried with them any obligation which the company might have had to enforce the appropriation voted by the Town. Notwithstanding the averment in the bill that the intent of complainant in purchasing said bonds, and paying its money therefor, was to acquire such rights of subrogation, it cannot be received as any sufficient allegation that there was a valid contract to that effect. On the contrary, the bill fairly presents the idea that by reason of the facts of the sale the complainant was in equity subrogated to said rights, and entitled to enforce the same against the Town of Middleport. [544] The argument of the learned counsel in the case is based entirely upon the right of the [545] complainant to be subrogated to the rights of the railroad company by virtue of the principles of equity and justice. He does not set up any claim of an express contract for such subrogation. He says: The equity alleged in the plaintiff's bill is, as I have said, the equity of subrogation. Before proceeding to call the attention of the court to the facts from which this equity arises, it may be useful to advert to the instances in which the right of subrogation exists, and to the principles on which it rests." The bill then charges that said supreme court, He founds his argument entirely upon the proposition that when the complainant purchased these bonds he thereby paid the debt of the Town of Middleport to the railroad company, as voted by it, and that because it paid this money to that company on bonds which are void, it should be subrogated to the right of the company against the Town. |