848
FEDERAL REPORTER.
vious intent of the sentence is, of course, conceded; but can the intent be presumed to justify the supply of the omission? It is, of course, always a question of construction, and the thought and intent of the framer is the thing to be determined. I have read the opinion of the supreme court on this matter, and studied it with care. The solid tread of the argument of the learned judge who wrote that opinion is to my mind irresistible. It compels conviction. Starting with the conceded and elementary proposition that, in determining the meaning of any instrument, whether: agreement, statute, or constitution, we look fhst to the words used, and seek their natural signification in the order of grammatical arrangement in which they are found, he shows that the sentences are sep'arate and complete, the propositions in them independent declarations, and that there is no grammatical necessity of implying or supplying any word to· perfect either, Hence the supplying or implying of a word must find some other reason than the mere grammatical arrangement for its justification. , Again, he calls attention to what, in my judgment, is most significant,...:-.the proceedings of the convention that framed this constitution. If, in construing any sentence, it becomes a question whether any word should be implied which is not found, in order to·fullyexpressthe true meaning, and,we can know that when the sentence was being prepared the question of whether that very word should be inserted was presented, discussed, and if was finally determined to reject h, we should be driven almost irresistibly to the conviction that the ineaning which that omitted word would disclose was ,nott.he meaning intended by the makers. Now, it appears from the debates ,in the convention that the question of introducing this word "such" intotbe sentence was presented and dis cussed; that two or three times itwas voted to introduce it, and as often voted to strikeitout;andthat finally it was left out, and the proviso at the close of the section added. I do not see how demonstration could be made more ,perfect as to the intent of the framers of this section. Cooley, Const.. Lim. 66. That,which waf:! their intent as shown by the grammatical arrangement ,of the language, and by-their discussion, must, in a matter of this kind, be presumed to have been the intent of the people in adopti.ng this constitution. The learned judge also notices other matters, such as the language of an address prepared by the convention, and subniiUed 'with the constitution to the people; but I do not care to pursue ,this: matter further, or notice the various reasons urged by him in support of the conclusion. It is enough to say ,that I think his rea.soning unanswerable. . I pass now tothe second question: Does the limitation upon county ,indebtedness imposed by this section include debts incurred by opera'tion of law as well as those arising from express contracts? This quesmay be really separated into two: First, in determining when the limit is reached I what is to be l$lCluded; and l -secOndl what effect has th(} .Jimit when the powers and liabilities of the county? In regard to the first, it wiJI be noticed that county indebtedne'Ss may arise in one of three ways: It may spring voluntary contracts
ROLl,INS 'V. LAKE COUN'XY.
of the county authorities. Second, it may be cast upon the county by the action of the legislature in requiring 'the payment by it of certain fees and salaries; and in respect to debts of this class the county as such exercises no choice, has no volition. They are compulsory, as distinguished from contractual, obligations. Further, it may arise from some tortious act of the county authorities. Such a tort creates a liability against the county, which, ripening into a judgment, becomes a debt. Now, in determining when the limit of county indebtedness has been reached, it is obviously immaterial under said section how any particular portion of the indebtedness arose or whence it sprang. It is enough that it is a debt. The language of the section is, "the aggregate amount of the indebtedness of any county. for aU purposes shall not exceed I" etc. Every dollar of the indebtedness might have sprung from tortious acts of county . officials which, prosecuted by the injured parties in actions ex delicto. have ripened into judgments, .and thus become debts, and still the limit be reached.. Indeed, the process of determination is a mere matter of mathemati4alcalculation,-the adding up of the valid debts of the county. Secondly. Supposing the limit has been reached" What efi'ecthas that 011 the powers and liabilities of the county? 'fhat it puts an end to ita contractual powerS is clear. So the supreme,court held. Such was the obvious purpose of the framers of the section. They were familiar with the experienceB. of other states, the territorial laws in force, and the ordinary ways of county business everywhere. They knew that a large discretion was given to county in the matter of creating obligations against the county. They knew thatit war,: usual to give to them power to build and keep in repair county'buildings, to layout, open, and im prove county roads, build bridges, and otherwise subject the county to large expenditures. With this in view, the obvious purpose of the statute was to limit their powers in this direction, and to say that beyond a certain sum no county official should be authorized to contract a debt binding against the county. ' On the other hand, it is equally clear that this section does not enable a county to defeat its liability for a tort, or prevent such liability from being merged into a judgment, and thus becoming a debt. It is no defense to an action for fL wrong that, if judgment be recovered therefor, it will carry the county indebtedness beyond the constitutional limit. This is conceded by the supreme court in this opinion. It says: "Involuntary liability arising ex delicto is a. subject that is not contemplated by the provision." In this the court only follows prior decisions in other states. In Bartle v. Oity ofDeiJ Moines, 38 Iowa, 414, the same doctrine was affirmed. So, also, in the case of Bloomington v.Perdue, 99 Ill. 32,9, the court in that. case in a single tence disposing of the question, as though a contrary doctrine were too absurd to require discussion. See, also, Ohicago v. Sexton, 115 Ill. 230, 2 N. E. Rep. 263, in which the court uses this language: "There is notl:ling new in thus holding a municipality responsible for the want of fidelity of those who act for it. Suits of that kind are of dailyoccurrence. 'The liability thus imposed is not within the .constitutional and statutory limitations in regard to the creation of indebtedness." v.34l<'.no.11-54
$0
.
, d Sd it has been held in Iowa, that'where warrints wete iesued in ex-cess of the constitutionallimit\. and judgments rendered thereon, the defense ofinvalidity not having been pleaded, and that through the fraud of the supervisors'of the county, and ,thereafter bonds issued in payment of such judgments; the bonds were valid in the holder. 'RauJro(J)d Co,v. Osceola do., 45 Iowa, 168, 52 Iowa, 26, and 2 N. W. Rep.:598. The other class of debts springs from neither the voluntary nor the tortiousacts ofeounty officials. The county has neither voice nor opportunity in the matter. They areitnposed by the legislature, and are erally'stlCh as' affectthe stp.teat large as well as the cOl!inty. ' It is well hereto stop a moment, and 60nsider what'A county is. In Qne asPect, it is an independent corporation, having peouliar private interestsand conoerns,; · Theman:agement of those interests and concerns is, af3 a general:rule, oonfided to ,the county officials; and' the debts incuned in the' management of those private affairs are oreated by the voluntary,oontracts'Gfthose officials> In another aspect,theioountyis but 8m6re :subdivision. 'ofthe 'and only determineslQcally the administration of thoBe'affairs which 'affect tbepeople of:the sklte as a whole. Take the admil'listration of justice in-the courts; th-e matter of elections, the preservation, Of the public peace; and matters of ,8: kindred nature: They are not theipurely private eoncerns of ',,1, They affect vitally and largely of the state as a ]t!isoolnmonelsewhere, it. was and, isthe.'ClI.se:here , that the cost of these pUblic services'is cast largely !Upon thecoority;, Not upon the cQunty1asliIiitidependent porat.on, and 'sOlely interested· in and ;benefited bY!SQ<lli services,: but a portion ofthe+;gtater and as' 8uehl ,pbdlon thus contributing to the general welfare.' In theoreation ofdoebts for these county is not e.onsulted'; Hhas novoiee in 8aJ.ytng when ·they: shall·be incurred, or to what extent. 1: know the lineotfdemarcation is not 'preserved lute lilDifotmityvbutthegeneral oh,aracter of thedifferetioe between tl'aC'tulU and'Compulsory'obligatioDs 1aas'1 have stated.· " This is a ter;:of ami; !lnust hav,e within' tion'oftheframers'oHhe constitution. Wis it their.inwnt to relieve the these compulsory obligationB'when in any manner thegeneorallimitM:indebtednessb.adbeen'reMhed,?i; See What that would imply:"The possibility that Qou!nty commissioners, b;Y extravagance; mightl"rgely impair, if not practibaUydefeat, the adinil1istration tice;thepre.serVll.titln of the!peaoe,' knd even the holding of publio serviCe, wiJthailt expectation of pay, is seldom' done, or, if done; Qnly 'poorly.Wilb\ ,oonstableserve process; wiU. a sheriff, at personal 'risk, preservethepuhlic peace; wma.countyattotn:ey prosecute with ,vigor land· intereSt;' will juror orwitness'attend,giviiig up private inter. ests for public: good" ........with. the knowledge that thesettheir services·, are anq. will ',' . ," .,' ;, be, the l,eglslator call' dallgers by all themlt: levy? Who :shall say how great will be the extravagance of the county officials? or,. eveR,ff that cOl'l'1d restricted by
as
f"
··
ROLLINS V.tAKE COUKTY.
851
who cant-oretell how much orcrinie will happen'during any 'coming year? 1. am advised by counsel supprei:ls'ion of a single riot in Leadville cost the oounty more than ;the, entire proceeds of that year's levYt things cannot be foreseen. Can it be that the framers of the constitution intended that compensation for such services should depend upon the question whether a limit of county indebtedness had been reached? It must be borne in mind that the amount of such expenditures can never be. foreseen. In one year they may aggregate a great amount, and in the next be comparatively trifling. ' . . These considerations of a general nature impress nleforCibly with the conviction that it was not the intent of the framers of this section to permit a county to escape from liability on account of' such compulsory obligaii0!1s by the fact that its general limit of indebtedness has been reached.· This conviction is strengthened by this provision in the section: that the indebtedness "shall not at any'time exceed twice the amount above herein limited, upless when in manner provided by law the question of incurring such debt shall at a general fllectionbe submitted," etc. Now, what a county proposes voluntarily to do, what alUount of debt it intends voluntarily to create, may be kf!.qwn and submitted to a vote; but who can foresee what amount of crime m'ay be committed, what criminal cases mayhf!.ve to be prosecuted. what expenses must be incurred in such prosecuti\ln,or in preserving the public peace, not yet apparently threatened? These are matters which, as they cannot be foreseen, cannot wcll be provided for by submission to popular vote. "Such debt," is the language; obviously a debt that is contemplated, and not one that may bo imagined. This question did not arise in this state for the first time. In 1885 the supreme court of Missouri considered and it. In Book v. Earl; 246. that, court held that a county could not contract a debt for any purpose in excess of its revenue for the current 'year withOut the special assept of the voters, and that, when it was d'eshed to create a debt in the impr0vement of the court-honse, the question must nrst be submitted to the qualified voters. But at the same Potter v. Douglas 00., Id. same court held that the conterm, stitutionallimitation as to indebtedness had lio application to a debt incurred bya county fOf the keeping and transporting of ,its prisoners by the sheriff ()rjailor of another county · Tbe judge who,vrote the opinion in that case thus states the reasons therefor:
in
"After carefully considering the subject, I am not of opinion that the constitutional prohibition should berult'd to apply in instances like th.. present. l!'or this conclusion these are my reasons: I do not fE'gard section 12. supm. as applying here. because the effect. of such construction wopld be destructive of the peace llnd good order in every county elllbraced witliin the provisions of 6090, aforesaid; for it would be an impossibility tosubruit to a vote of the people ofihe connty concerned, the question of ail utlascertained anti unascertainable indebtedness to be incurred in the future, as the exigencies of the case might demand. Who could foretell how many criminals would be arrested in the course of the ensuing year? If this could not he done. is it not glaringly obvious that no question as to the amount of the indebtedness could pOSSibly be submitted to the people for the sanction of their suffrages?
852
The maxim, ad £mpossibiUa, may appositely be invoked in the present case; a maxim equally invocable whether the law be statutory or organic. But another reaSon occurs why that section cannot apply in the case at bar. The inhibition of the cOl1stitutiqn. it will be observed, is leveled against a county becoming indebted, i. e., through the ordinary channel, the action of the county court, the financial agent of the county. But here the indebtedness was 'not so incurred. It was created entirely independent of any action of the county court; created by the sheriff of the county pursuant to the command of section 6090, suprrz. The law itself gave license to the incurring of such debt. It was incurred by operation of law, and the fact that the county would ultimately have tbe debt to pay cuts no figure in tbis discussion." , It is true, by the constitution pf Missouri there is a limit on the amount of taxation, as well all in the matter of indebtedness, but that' does not militate against the force of the argument presented by that court. My conclusion, therefore, is that it is no defense to au action upon county issued in payment of thelle compulsory obligations that the generiJJlimit of county indebtedness. has been reached. I believe that it is agreed between counsel that the warrants sued on in this action are of this nature, and the judgment must be entered, therefore, in favor of the plaintiff: ' been reached I am not fully in I regret' that in the conclusions that acco'rd with the supreme court of the state. I regret this,not alone because I regard it generally the duty of the federal court tofollow the supreme court of the state in its interpretation of the state statutes and constitution, but also because of the high respect I entertain for the individual members of that court, who honor the office which they occupy, and whose duties they so admirably dischargei but over against that is the strong voice of appeal rising from the equities of these various warrant holders. This is not the case of a series of bonds issued to a railroad corporation whose existence and work are, notwithstanding it is called a , qucuti public servant, we all know, prompted by personal and selfish interests, but it is the case of warrants issued to many individuals, witnesses, jurors, constables, sheriffs, and the like, called upon by the laws of the state to render some public service in the administration of justice, the punishment of crime, the preservation of the public peace, the conduct of elections,-matters in which the state as a whole is interested and which conduce to the general welfare,-and who have ob'eyed the mandates of their state in the undoubting faith that the promised compensation for those services would be paid. Honesty, justice, a.nd all the potential obligations. ora solemn promise demand that they be paidi and if I have lent a too-willing ear to the voice of such appeal,andhave permitted such equities to blind my eye' to a clear vision of the literal mandate of the constitution, it is consolation to know that the amount in controversy is so great that a review of these proceedings can be had in the supreme court of the United States, by which high and ultimate tribunal any er. rors and mistakes can be corrected.
SCHNELLE & QUERL LUMBER CO. V. BARLOW. SCHNELLE & QUERL LUMBER Co. (Oircuit Oourt, 8. 1. 'lI.
853
BARLOW.
n. New
York. May 8, 1888.)
DEEDS-STATUTORY CONSTRUCTION-" GRANT, BARGAIN, AND SELL. It
Under 1 Rev. St. Mo. 1879, c. 20, § 675, p. 110, as construed by the supreme court of that state, the words" grant, bargain, and sell, " used in a conveyance in which an" estate of inheritance in fee-simple is limited, " amount to a covenant of seizin of the estate so limited. and the covenant runs with the land. In Missouri ejectment is a mere possessory action and a judgment therein confers no title upon the party in whose favor it is given. It is no defense, therefore, to an action in the United States circuit court in New York, by the grantee of land in Missouri, to recover damages for breach of covenant of seizin, that the covenantor has succeeded to the rights .of the prevailing party in ejectment, and has duly conveyed them to the plaintiff, in the absence of other proof of title in such prevailing party. A covenantee, in Missouri, under a covenant of seizin is not bound to wait for actual dispossession, but may at once, upon the hostile assertion of a paramount right or title, payoff or extinguish the right by purchase; and his measure of damages is the reasonable sum paid for such title. The life-tenant of land in Missouri compromised litigation with B., who claimed an interest in it" by taking from him a deed of nineteen-thirtieths, and giving him in turn a conveyance of the remaining eleven-thirtieths. Upon her death intestate, the remainder-men in' fee, who were also her children, set up title to the land conveyed to B., and he :filed bill to remove cloud. The bill was dismissed, and the dismissal was affirmed by two appellate courts, on the ground that the children 'were not estopped from asserting title to the land B. had got by reason of the fact that they had 'Succeeded as heirs to the land he had given their mother in exchange. S., who had bought B;'s land, and been compelled to pnrchase the interest of the heirs. then sued B. on his covenant of seizin in the United States circuit court in New York. Held, that neither the plaintiff nor the defendant would have had a valid defense in an action of ejectment, in Missouri, at the suit of the remainder-men.
2.
COVENANTS-SEIZIN-TITLE BY JUDGMENT IN EJECTMEN'l'.
8.
SAME-PuRCHASE OF PARAMOUNT TITLE.
4.
SAME.
At Law. Oharles a. Burlingham and J08qJh A. Shoudy, for plaintiff. Wm. D. Shipman, for defendant. SHIPMAN, J. This is an action at law, in which a jury trial was waived, by written stipulation duly signed by the parties, and the case was tried by the court. The action was brought to recover the damages which were alleged to have been sustained by the plaintiff by reason of the breach of the covenant of seizin in the deed of the defendant and his wife -of a lot of land in St. Louis, Mo., to Lesley Garnett. The facts which, upon such trial, were proved and are found by the court to be true, are as follows: The land in question is property described in the complaint, and is situated on the south-east corner of Eighth and Mullanphy streets in said St. Louis, having a front of 36 feet 3 inches on Eighth street, and a depth of 125 feet on Mullanphy street. In the partition of the estate -of John Mullanphy, in April, 1842, the partition proceedings having been instituted in the month of August, 1841, said lot was set off and .aparted to his daughter, Mrs. Ann Biddle, who died in January, 1846,
