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any person or persons to become bigamists or polygamists, or to com-
mit any other crime defined by law, or to enter into what is known as
plural or celestial marriage, or who is a member of any order, organi-
zation or association which teaches, advises, counsels or encourages its
members or devotees or any other persons to commit the crime of
bigamy or polygamy, or any other crime defined by law either as a rite
or ceremony of such order, organization or association, or otherwise, is
permitted to vote at any election, or to hold any position or office of
honor, trust or profit within this Territory" is an exercise of the legis-
lative power conferred upon Territories by Rev. Stat. §§ 1851, 1859,
and is not open to any constitutional or legal objection.
5. The cases in which the legislation of Congress will supersede the legis
lation of a State or Territory, without specific provisions to that effect,
are those in which the same matter is the subject of legislation by
6. It was never intended that the first article of amendment to the Con-
stitution, that "Congress shall make no law respecting the establish-
ment of religion, or prohibiting the free exercise thereof," should be a
protection against legislation for the punishment of acts inimical to
the peace, good order and morals of society. Ib.
7. No State has power to tax the property of the United States within its
limits. Wisconsin Central Railroad Co. v. Price, 496.
8. The Eleventh Amendment to the Constitution does not operate to pre-
vent counties in a State from being sued in a Federal Court.
County v. Luning, 529.
9. No state statute exempting a county in the State from liability to suit
except in the courts of the county can defeat the jurisdiction of suits
given by the Constitution to the Federal courts. Ib.
10. The statute of the State of Mississippi of March 2, 1888, requiring all
railroads carrying passengers in that State (other than street railroads)
to provide equal, but separate, accommodations for the white and col-
ored races, having been construed by the Supreme Court of the State to
apply solely to commerce within the State, does no violation to the
commerce clause of the Constitution of the United States. Louisville,
New Orleans &c. Railway v. Mississippi, 587.
See BETTERMENTS, 2;
TAX AND TAXATION, 1, 2;
B. OF THE STATES.
This court follows the Supreme Court of Nevada in holding that the statute
under which the bonds in controversy were issued was not in conflict
with the Constitution of that State. Lincoln County v. Luning, 529.
1. The question considered, as to what are "Official services" performed
by consuls, under the consular regulations of 1874 and 1881, prescribed
by the President by virtue of the provisions of § 1745 of the Revised
Statutes. United States v. Mosby, 273.
2. Fees collected by a consul for the examination of Chinese emigrants
going to the United States on foreign vessels; and fees for certificates
of shipment of merchandise in transit through the United States to
other countries; and fees for recording instruments which are not
official documents recorded in the record books required to be kept by
the consul, but relate to private transactions for individuals not re-
quiring the use of the consul's title or seal of office; and fees for
cattle-disease certificates; and fees for acknowledgments and authen-
tications of instruments certifying the official character and signature
of notaries public; and fees for settling private estates; and fees for
shipping and discharging seamen on foreign-built vessels sailing on
the China coast under the United States flag; are not moneys which
he is required to account for to the United States. Ib.
3. Fees collected by him for certifying extra copies of quadruplicate
invoices of goods shipped to the United States; and money received
for interest on public moneys deposited in bank; and fees collected
for certificates of shipments or extra invoices; and fees for certifying
invoices for free goods imported into the United States; are moneys
which he is required to account for to the United States. lb.
4. The practice of consuls to do acts which are not official is recognized
by the statutes and the consular regulations. Ib.
5. The claimant had a judgment in the Court of Claims against the
United States for $13,839.21. Both parties appealed. The items of
the disallowance of which the claimant complained did not amount to
more than $3000. But it was held that he could avail himself of
anything in the case which properly showed that the judgment was
not for too large a sum; and this court, disallowing one of the items
allowed to him, allowed one of the items disallowed, and rendered a
judgment in his favor for a less amount than that rendered below. Ib.
1. The city of Galesburg, Illinois, by an ordinance, granted to one Shelton,
and his assigns, in May, 1883, a franchise for thirty years, to construct
and maintain water works for supplying the city and its inhabitants
with water for public and private uses, the city to pay a specified rent
for fire hydrants, and a tariff being fixed for charges for water to con-
sumers. In December, 1883, the water works were completed by a
water company to which Shelton had assigned the franchise, and
a test required by the ordinance was satisfactorily made, and the city,
by a resolution, accepted the works. The water furnished by the
company for nine months was unfit for domestic purposes. After
November, 1884, the supply of water was inadequate for the protection
of the city from fire, and its quality was no better than before.
During eighteen months after December, 1883, the company had ample
time to comply with the contract. The city, by a resolution passed
June 1, 1885, repealed the ordinance, and then gave notice to the
company that it claimed title to certain old water mains which it had
conditionally agreed to sell to Shelton, and of which the company
had taken possession. The city then took possession of the old mains,
and, in June, 1885, filed a bill in equity against the water company to
set aside the contract contained in the ordinance and the agreement
for the sale of the old mains. In August, 1883, the company executed
a mortgage to a trustee on the franchise and works, to secure sundry
bonds, which were sold to various purchasers in 1884 and 1885. The
interest on them being in default, the trustee foreclosed the mortgage
by a suit brought in November, 1885, and the property was bought by
a committee of the bondholders, in November, 1886. In February,
1886, the trustee had been made a party to the suit of the city. After
their purchase, the members of the committee were also made parties
and they filed a cross-bill, praying for a decree for the amount due by
the city for water rents, and for the restoration to them of the old
mains, and for an injunction against the city from interfering with the
operation of the works. After issue, proofs were taken; Held, (1)
The supply of water was not in compliance with the contract, in
quantity or quality; (2) The taking possession by the city of the old
mains was necessary for the protection of the city from fire; (3) The
contract of the city for the sale of the old mains was conditional and
was not executed; (4) The city was not estopped, as against the
bondholders, from refusing to pay the rent for the hydrants, which,
by the mortgage, was to be applied to pay the interest on the bonds,
or from having the contract cancelled; (5) The obligation of Shelton
and his assigns was a continuing one, and their right to the continued
enjoyment of the consideration for it was dependent on their con-
tinuing to perform it; (6) The bondholders were bound to take
notice of the contents of the ordinance before purchasing their bonds,
and purchased and held them subject to the continuing compliance
of the company with the terms of the ordinance; (7) In regard to the
old mains, the lien of the mortgage was subject to the conditions of
the agreement for the sale of them by the city to Shelton; (8) A suit
by the city for a specific performance of the contract, or one to recover
damages for its non-performance would be a wholly inadequate remedy
in the case; (9) A decree was proper annulling the ordinance and the
agreement; dismissing the cross-bill; directing the city to pay into
court, for the use of the cross-plaintiffs, $3000, as the value of the use
of the water by the city from December, 1883, to June, 1885; and
dividing the costs of the suit equally between the city and the cross-
plaintiffs. Farmer's Loan and Trust Co. v. Galesburg, 156.
2. Where the subject matter of a contract relates to the construction of a
railroad in Massachusetts, and the defendant resides there, and the
contract was made there, and a suit on the contract is brought there,
the law of Massachusetts is to govern in expounding and enforcing
the contract, and in determining the rule of damages for a breach of
it. Mills v. Dow, 423.
3. Where a contract states that the purchasing price of its subject matter
is $15,000, and that that sum has been "this day advanced and paid ”
therefor, it is competent for the vendor, in a suit by him on the con-
tract, to show that only $10,000 was paid, with a view to recover the
remaining $5000. Ib.
4. The language of the contract is ambiguous and does not show actual
prior or simultaneous payment. Ib.
5. Evidence of a promise by the defendant, as a part of the consideration
of the contract, to pay certain debts mentioned in it which the plaintiff
owed, is admissible; and the refusal of the defendant to pay those
debts on demand was a breach of the contract. Ib.
6. An agreement to " assume a prior contract, and to save the plaintiff
harmless from "all liability" by reason of certain other contracts, is
broken by a failure to pay the parties to whom the plaintiff was liable,
and it is not necessary to a breach that the plaintiff should show that
he had first paid those parties. Ib.
7. The agreement is not merely one to indemnify the plaintiff from dam-
age arising out of his liability, but is an agreement to assume his
contracts and to discharge him from his liability. Ib.
8. Such agreement was a personal one on he part of the defendant. Ib.
9. Where losses have been made in an illegal transaction, a person who
lends money to the loser, with which to pay the debt, can recover the
loan, notwithstanding his knowledge of the fact that the money was
to be so used. Armstrong v. American Exchange Bank, 433.
10. An obligation will be enforced, though indirectly connected with an
illegal transaction, if it is supported by an independent consideration,
so that the plaintiff does not require the aid of the illegal transaction
to make out his case. Ib.
11. It does not appear that the plaintiff had knowledge or notice that the
paper in suit was delivered to it to be used through it by K. & Co. in
connection with an attempt to corner the market. Ib.
12. In an action brought against one party to a contract by an assignee
seeking to charge him by virtue of a contract of assignment from the
other party and other facts, a complaint stating the same facts, not
under oath, and signed by attorney only, in an action by the assignee
against his assignor, is incompetent evidence of an admission by the
plaintiff that he had no cause of action against this defendant. Dela-
ware Co. Commissioners v. Diebold Safe & Lock Co., 473.
13. By a contract for the construction of a jail, under the statute of Indi-
ana, (which requires all such contracts to be let to the lowest responsi-
ble bidder, taking a bond from him for the faithful performance of
the work,) the contractors agreed to construct the jail and to provide
all the materials therefor within a certain time for the sum of $20,000,
which the county commissioners agreed to pay, partly in monthly pay-
ments on their architect's certificate, and the rest on the completion
and acceptance of the building; and it was agreed that the county
should not in any manner be answerable or accountable for any ma-
terial used in the work; and that, if the contractors should fail to finish
the work by the time agreed, they should pay $25 as liquidated damages
for every day it should remain unfinished. The contractors assigned
to a third person the obligation to do the iron work upon the jail, as
if it had been awarded directly to him, and the right to recover therefor
from the commissioners $7700 at the times mentioned in the original
contract. The assignee did the work to the satisfaction of the com-
missioners, and to the value of $7700, but not within the time stipu-
lated in the original contract; Held, that the assignments, though
notified to the commissioners, if not assented to by them, did not
make them liable to the assignee, or prevent them from making a set-
tlement in good faith with the original contractors. Ib.
See DEED, 1, 3.
1. In the absence of an enabling statute, either general or special, a rail-
road or other corporation cannot purchase and hold real estate indefi-
nitely, without regard to the uses to be made of it. Case v. Kelly, 21.
2. The rule that the limitation of the power of a corporation in a State
to receive and hold real estate concerns the State alone does not apply
when the corporation, as plaintiff, seeks to acquire real estate which
it is not authorized by law to acquire. Ib.
3. While the relations of a party towards a corporation, as a director and
officer, or as its principal stockholder, do not preclude him from enter-
ing into contracts with it, from making loans to it, and from taking
its bonds as collateral security, a court of equity will refuse to lend its
aid to their enforcement unless satisfied that the transaction was
entered into in good faith, with a view to the benefit of the company
as well as of its creditors, and not solely with a view to his own bene-
fit. Richardson's Executor v. Green, 30.
4. In the case of a corporation, as in that of a natural person, any convey-
ance of its property, without authority of law, in fraud of its credi-
tors, is void as to them.
5. The capital stock of a corporation, when it becomes insolvent, is, in
law, part of its assets, to be appropriated to the payment of its debts,
and if any part of it has been issued without being fully paid up, a
court of equity may require it to be paid up. lb.
6. On the dissolution of a corporation at the expiration of the term of its
corporate existence, each stockholder has the right, as a general rule,
and in the absence of a special agreement to the contrary, to have the
partnership property converted into money, whether such a sale be