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ant to prove its plea, but it was not required to prove it beyond a reasonable doubt. If the jury was, by all the evidence, satisfied and convinced that the plea was true, that was sufficient.
Written Instructions Requested.
It appears from the printed transcript that during the progress of the trial the judge presiding requested the attorneys for the parties to present to the court written instructions, so that the court might be advised as to their respective theories of the case. The attorneys for the plaintiffs handed to the court before the argument began 30 separate written charges, numbered from 1 to 30, inclusive. Some of these charges were marked, "Given for the convenience of the court in charging the jury." "The remaining instructions," the transcript states, were not passed upon by the court, nor were any exceptions taken by the plaintiff on account of the failure of the court to give the instruction to the jury, or to mark them "Given" or "Refused." It is assigned as error that the court did not give these 30 charges. These charges do not even appear in the bill of exceptions. The bill of exceptions does not show that any exceptions were reserved to the refusal of the court to give them. the contrary, the statement which follows the copy of the charges in the transcript shows affirmatively no exceptions were taken to the failure of the court to give the charges. Unless it appears in the bill of exceptions that a charge was requested, and refused by the court, and an exception duly reserved, no question is presented in regard to such charge for decision by this court. These charges are embodied a second time in the transcript, being set out in a motion for a new trial, the refusal to give them being assigned as one of many grounds for a new trial. The refusal of the court to grant a new trial is assigned as error. We have often held that the granting or refusing a new trial is in the discretion of the trial court, and that its decision cannot be reviewed by this court. Such is the unvarving rule of the federal courts.
Mrs. Stewart's Alleged Interest.
Lillie A. Stewart, widow of the insured, was joined as plaintiff in the suit. In rulings on the admission of evidence and in the charge to the jury the trial court held that on the undisputed evidence she had no interest in the action. The policy in suit was made payable, not to his wife, but to the executors or administrators of the insured. Charles T. Stewart, the insured, assigned the policy, with the consent of the insurance company, to Guy Jack. No other assignment of it had been made. The declaration filed by both of the plaintiffs states these facts. For the purpose of showing an interest in Mrs. Stewart, it is alleged in the declaration that she "furnished proofs claiming the proceeds of said policy as the widow and only heir at law of said Charles T. Stewart," and that Guy Jack had furnished proofs claiming the proceeds of the policy under the assignment from the insured. Then follows the statement that "plaintiffs have adjusted their respective claims to the proceeds of said policy of insurance, and agreed on a basis of settlement of the same."
There is evidence in the record that Charles T. Stewart owed debts at his death. If the assignment is to be regarded, Jack alone, as assignee, owns the policy; if the assignment be ignored, the policy being payable to the executors or administrators of the insured, they alone could sue on it. In Insurance Co. v. Jack, 76 Miss. 788, 25 South. 871, an action was brought by Jack and Mrs. Stewart on a life insurance policy assigned to Jack, which was payable to the executors or administrators of the insured. The court held-properly, we think that Mrs. Stewart was a stranger to the contract; that, if she had made an agreement with Jack as to a division of the proceeds, that was a contract with which the insurance company had We concur in this view. The record in this case shows affirmatively that Mrs. Stewart had no right of action on the policy. In this case, by her pleading, she is affirming that the policy was assigned to Jack.
The judgment of the circuit court is affirmed.
(113 Fed. 60.)
TOWN OF ALDEN v. EASTON.
(Circuit Court of Appeals, Eighth Circuit. December 9, 1901.)
1. TOWNS-BONDS TO AID RAILROAD-AMOUNT-LIMIT-STATUTES-CONSTRUC
Gen. St. Minn. 1866, c. 10, § 107, provided that no town should have power to contract debts in any one year in a larger sum than the amount of taxes assessed for such year, unless authorized by a majority of its voters. Chapter 11, § 78, as amended, limited the annual tax levy for town purposes to a sum not exceeding 10 mills on the dollar, and provided that nothing in such section should be construed to prevent the supervisors of any town from "levying any tax which by any special law they are authorized to levy." Section 79 prohibited the contracting of any debt by a town which would render necessary the levy of a higher rate of tax than that prescribed by section 78, "unless specially and expressly authorized by law." An act of the legislature (Sp. Laws Minn. 1868, p. 47), in section 1, expressly authorized each town in certain counties to issue bonds, as thereinafter provided, to aid in the construction of any railroad running into such counties. Section 2 prescribed the minimum face value of the bonds, manner of execution, and rate of interest. Section 3 provided that any such town might, by vote of the majority of the legal voters of such town, fix the amount and size of bonds to be issued and the rate of interest. Section 4 provided a complete scheme for levying a tax on the property of the town in an amount "not less than the principal and interest upon such bonds," for the apportionment of the tax, collection thereof, and payment of the bonds. Held that, as the act of 1868 undertook to provide a complete scheme to accomplish the desired purpose, in the absence of a plain and clear intent it should not be presumed that it meant that the authority given the town to fix the amount and size of the bonds should be read with, and limited by, Gen. St. 1866, c. 11, §§ 78, 79, to 10 mills on the dollar of the taxable property.
The act of 1868 is obviously the exercise of the power reserved by the legislature in Gen. St. Minn. 1866, c. 11, §§ 78, 79, to permit by special law, in exceptional cases, the creation of debts by towns in excess of the limit prescribed by the general law.
8. SAME-AUTHORITY TO FIX AMOUNT-LEGAL VOTERS.
By the act of 1868, the whole matter of whether bonds should be issued, and the amount thereof, was relegated to the judgment of the legal voters of the town, who by self-imposed taxation were required to make provision for the payment, and the bonds issued pursuant to such authority are valid.
In Error to the Circuit Court of the United States for the District of Minnesota.
The town of Alden, the plaintiff in error, one of the congressional townships of Freeborn county, in the state of Minnesota, on March 28, 1870, having been duly authorized by a majority of its qualified voters, issued its 15 certain bonds, of the denomination of $1,000 each, in aid of the construction of the Southern Minnesota Railroad, projected across the township. These bonds were payable, according to their tener, on or before 30 years after date, and bore interest, represented by attached coupons, at the rate of 7 per cent. per annum. The railroad was constructed as projected, and the bonds received by the company were negotiated and passed from hand to hand in the market from the date of their issue until 1894, when 10 of them were purchased by Easton, the defendant in error, under such circumstances as constituted him, within the meaning of the law, an innocent purchaser thereof for value. The coupons representing the interest on the bonds were regularly paid from 1870 to 1898 without any question or objection on the part of the town as to their validity. On July 24, 1899, the town, by its treasurer, wrote a letter to Easton notifying him that it had determined to contest the validity of the bonds. After the principal had matured, Easton instituted this suit in the circuit court of the United States for the district of Minnesota against the town to recover the face value of the bonds, together with interest accrued thereon from and after 1898. The town in its answer denied liability, on the ground that it exceeded the limit of indebtedness permitted by the statutes of Minnesota in issuing the bonds, and that they were therefore void. It also filed a counterclaim to recover from Easton the amount of interest paid him by the town after he had become the owner of the bonds. The case went to trial, and resulted in a judgment for Easton for the full amount of the principal of the bonds and unpaid interest thereon. The town brings the case here by writ of error to reverse that judgment.
Charles Butts (A. G. Wedge and Moses E. Clapp, with him on the brief), for plaintiff in error.
S. D. Catherwood (R. E. Shepherd, with him on the brief), for defendant in error.
Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.
ADAMS, District Judge, after stating the case as above, delivered the opinion of the court.
The General Statutes of Minnesota of 1866, in force in 1870, when these bonds were issued, provide as follows:
Chapter 10, § 107:
"No town has power to contract debts or make expenditures for any one year in a larger sum than the amount of taxes assessed for such year, without having been authorized by a majority of the voters of such township.
Chapter 11, § 78:
"There shall be levied, annually on each dollar of taxable property in this state (other than such as by law is otherwise taxed) as valued and entered on the grand list of taxable property for the several purposes in this chapter enumerated, taxes at the rates hereinafter specified, namely: For
township purposes on the taxable property in the township, as entered and valued on the grand list, such sum as the clerk shall certify to the county auditor, has been voted by such town not exceeding five mills on the dollar.
By subsequent amendment, the limit of the levy of 5 mills on the dollar was enlarged to 10 mills on the dollar. By act of the legislature of Minnesota approved March 6, 1868 (Sp. Laws Minn. 1868, P. 47), power was conferred upon the towns in several counties of the state, including Freeborn county, to issue bonds in aid of the construction of any railroad running into, or proposed to be built through, either or all of such counties. Section 3 of that act is as follows:
"Any town in either of the aforesaid counties may at any annual or regularly called special meeting, by vote of the majority of the legal voters of such town present and voting, fix the amount and size of bonds to be issued by such town, the rate of interest and the date of payment of all and any thereof.
Section 4 of that act provides a scheme for levying a tax upon the real and personal property of the town, and for the collection thereof, and for the appropriation of the same, when collected, to the payment of the principal and interest of the bonds issued by the town. An act of the legislature of Minnesota approved February 27, 1869, amends the act of March 6, 1868, in certain particulars unnecessary now to be referred to.
It is contended by plaintiff in error that the provisions of Gen. St. 1866, c. 11, § 78, are applicable to and control the present case, and that the limit of indebtedness there fixed, namely, such as shall not exceed 10 mills on the dollar of taxable property of the town, exhausted the power of the town. It is admitted that $15,000, the aggregate of the bonds issued, exceed that limit. It is contended, on the other hand, by the defendant in error, that the provisions of the General Statutes already quoted are not applicable to the creation of the bonded indebtedness in question, but that the Special Acts of 1868 and 1869 conferred ample authority upon any town to incur an indebtedness in aid of the construction of railroads through the county, in any amount which might be agreed upon by a majority of the qualified voters of the town. The trial court adopted the latter view, and ruled accordingly. The correctness of this ruling only is brought to our attention by the assignment of errors.
The general statutes relating to township organization (section 107, c. 10, Gen. St. 1866) place no limit upon the power of towns to create debts, the only condition thereto being an authorization by a majority of the voters of the town; but chapter II, § 78, relating to the levy of taxes, fixes a limit of taxation for township purposes not exceeding 10 mills on the dollar of the taxable property of the township, but contains a very significant proviso, as follows:
"And provided further that nothing in this section shall be construed to prevent the county commissioners, township supervisors, or corporate authorities of any city, town or village fr m levying any tax which by any special law they are authorized to levy."
Section 79 of the same chapter contains a prohibition against contracting any debt or incurring any pecuniary liability by a town which will render necessary the levy of a higher rate of tax than the maximum rate prescribed by section 78, namely, 10 mills on the dollar of the taxable property of the town, but this last-mentioned prohibition contains a very significant exception. It reads as follows:
"It shall be unlawful for the corporate authorities of any
** * unless specially and expressly authorized by law, to contract any debt for the payment of either principal or interest of which it will be necessary to levy # a higher rate of tax than the maximum rate prescribed by this chapter.”
From the foregoing provisions of the general laws relating to township organization and taxes, it is, we think, very obvious that the legislature of Minnesota first adopted a general rule prohibiting the creation of any debt by a town in excess of 10 mills on the dollar of the valuation of its taxable property, and at the same time made provision for exceptional cases when it could, by the passage of a special law, permit a town to create an indebtedness in excess of that limit, provided only it secured the consent of a majority of the voters of the town thereto. In other words, the legislature seems to have thought that its own legislative wisdom and discretion and the will of the majority of the voters of the town, taken together, would afford adequate safeguards against improvidence when any special occasion should arise suggesting the advisability of contracting indebtedness in excess of the limit fixed by the general law.
We are now brought to the inquiry whether the legislature enacted any special law authorizing the plaintiff in error to contract the indebtedness in question. Attention has already been called to the act approved March 6, 1868. Section I of that act expressly authorizes each town in the counties of Filmore, Mower, Freeborn, Faribault, Martin, and Jackson "to issue bonds as hereinafter provided, to aid in the construction of any railroad running into or proposed to be built through either or all of the counties aforesaid." No limit is there placed upon the amount of bonds to be issued except such as is comprehended in the words underscored, “as hereinafter provided." Section 2 prescribes the minimum face value of the bonds, the rate of interest they shall bear, and how they shall be executed. Section 3 is as follows: "Any town in either of the aforesaid counties may at any annual or regularly called special meeting by vote of the majority of the legal voters of such town, present and voting, fix the amount and size of bonds to be issued by such town, the rate of interest," etc. Section 4 provides a complete scheme for levying a tax upon the real and personal property of the town in an amount "not less than the principal and interest upon such bonds," and to "apportion the same upon such years as may be deemed expedient," and also for the collection and payment of such tax to the town treasurer, to be by him applied “in payment of the principal and interest of the bonds issued by the town." It thus appears that this act is complete in itself, and requires no resort to the general law for its enforcement. It authorizes the issuing