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.362
FEDERAL RliiPORTER,
vol. 43.
.superflu?us, minds., whicq,!lre so that ''tWe .ilivalIdity of thIS ord1l1ance IS not apparent upon InSpectIOn, with the of the and laws cIted,' or argumentw,6uld be useless. '. The to pass within any police state. See, Pw'tQ1j, 11 Sawy. 472, 26]j;ed. Rep. 61.1; In re Ah Fang, 3 Sawy. t75; Inre QtuYnU Woo, 7 Sawy.531, '13 Rep. 22,9; Wo 118 U. S. 9 Sup. Ct. Rep. 1064; HbAhKow v. 552 . . Let'thii'ordetb'e adjudged to be void, as being indirect conflict with the treaties; and statute,!!, of the United States, an,.d let the ,"
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MONTGOMERY·' tl.TOWNSHIP OF, ST.' ;MAnY's. ':1: 1
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t',,(C(rlJ'U4t Courl,D. Kamas. Aug1l.st. 80;1890.)
requires boMs issued by a township to be "signed by the · by town clerk; t.ownship J:jonda " Aot Invalidated by the fact ,tlll't name of the townshIp ,trustee was signed " " for l1iili bY a thtt'll: person, itt his'presenoe.8nd at. hIs t.'he bonds beIngsllbf.' apd.eer:tUled. Bud t.he intereet. paid,t.!Ier80nby the town, .; ..' '., ;, I
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Keeler"
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the deThe facts pf CREle, are follows: On tqe .1\ugqst,. 1871" its bonds in tne sum '0($4'O!000, due in 20 years,at 10 per cent.,mterest, payable to the' Bridge ManUfactory and Iron Warks, for the purpose a bridge OVeI' the Kansas said township. 'attached for the semi-annual interest, and these ,actions are ',' .'l'Jij) defendant the .or ,were '. made or. py townShIp or ,Its Qf,J,n. Downing, town'snip trustee, arid Alva lIigbee, township clerk. The facts in .reference to, and issue of th,e b.opdsaJ;e as The bridge was bW.lt. by..the.tow ....n.· . ,t.h El .. !".,e. . p.repa.red,. with tHe ofPcers! to the elt! of 1882, of the bndge Jenlthis.; .and Ja!11es.p., was (){ and of townJ
MONTGOMERY t1. TOWNSHIP OF ST. MARY'S.
863'
ship, met together at an hotelin said ¥r. Higbee signed said, bonds and coupons, as clerk, and, at the request of Mr. Downing, who was present, but who said that he was nervous, and a poor penman, Mr. William H. Jenkins signed the name of the said Downing to the said bonds and coupons, in the presence of the said Downing, and the other parties. After signing the bonds they were delivered by Downing and Higbee to Mills for the bridge company. In July, 1872, this issue of bonds was certified by the township trustee, clerk, aud treasurer, as a valid and subsisting indebtedness against said township of St. Mary's; and agaio, in January, 1873, said bonds were certified by the township clerk as a valid and subsisting indebtedness against said township. The township paid the interest on said bonds for a period of 10 years. This case turns on the single qllestion, whether the name of the trustee signed as it was, followed by delivery of the bonds, and the subsequent acts of the township officers, makes the indebtedness a legal obligation of the defendant township. Section414 of the General Statutes of Kansas, making provision for the issuing of municipal bonds, provides as follows' "AndH issued by a township shall be signed by·the township trustee, and attested by the township clerk." The doctrine is well settled that a public officer cannot delegate to another the exercise of his,. official duties. It is equally well settled that,in the transaction of private bllshiess, a person may orally authorize another to sign .his name in his and such signature is valid. Can a' public officer delegate toano,tlier, not the exercise of officill.l discretion, but simply the performance of a ministerial act, such as signing his name in his presence, and under his order? In Chapr.'.an v. Limerick, 56 Me. 390, the court held that a constable's return to a warrant calling a township meeting must bear the sign-manual of the constable who executed it. This conclusion was largely' induced by a statute of the state which provided: "When .the signature of a person is required, he must write it, or make his mark." This is ,the principal case to which my attention has been called on the part or the defendant. On the other side we find several casestnQreorless pertinent. Ringv. County ofJohrt8on, 6 Iowa, 272; Raitroad Co. v. Marion County, 36 Mo. 303; JU8t v. Wise Tp., 42 Mich. 579, 4 N.W.Rep. 298. In this case the township clerk signed the highway CQmmissioners' names to an order ou the treasurer ill tht) presence of, and by order of, the commissioners, who then indorsed. on the. order. that the labor and material for which the order was given ba.d been performed andfurpished, and delivered the order to the proper person. The court held, if tlierewas il,ny question as to the validity of the signatures, that the indorsement and delivery of the order hy the commissioners was an adoption and approval or the llignature, and order was v,alid. The court uses this language: . . . . .·. . "If either had been unable to sign his name, and had directed anothert() forb,im, and thill had been done in his presence, the' act would have good,w be made his 'mark thereto or not." . See, also, Town of Weyauwegav.Ayling,. 99 U. S. 118; Com. v. Hamden, 19 Pick. 482; People v. Bank, 75 N. Y. 555.
364
FEDERAL REPORTER,
From the cases above cited, I am led to the conclusion that the sig. riatureofJames D. Downing, trustee, to the bonds and coupons must be held valid; but while doing so I cannot forbear to condemn this practipe as reprehensible. No cautious business man would either issue or receive bonds executed in this manner. It doubtless is susceptible of proof that this is not the writing of J. D. Downing. Several of the parties to the transaction llre already dead. It is shameful that the holders of municipal bonds should risk investments on the life or memory of.a living witness, with no other evidence of the transaction. Besides, it opens the door to fraud and perjury, and casts a cloud of suspiCion on the transaction. Judgment must go for the plaintiffs for the amount claimed.
ROBSON' '1'.
RIVER tOGGING
Co.
(br.rcuit Court. N. D. Iowa. E. D. September 22.1890.)
·Plaintiff and defendant entered into a contl."act which, after reciting plaintiff owned Ii large q,jiailtity cif pine land tributary to certain rivers, and then ,had a large , quantity of, logs and tImber in said streams,and expected to cut annually thereafter,au4.deHver a large, quantity of logs andtim1?erto be driven to marke,t down said streams. and that defendant was engaged in lQgs down Baid streams, and that differences had arisBll betvveen the parties in respect to the , driving of.lQgs. providlld that. "therefore., for the purpose of settling lloll said dif· , ferences, slid providing fOr the future. it is mutually agreed II that defendant shall. for allerta:in consideration to be paid at the end of each season's business. take POBscsslo,n llond control of logs and timber,not exceeding a certain amount per year, whicl]:,plairitifE,shall deliver in said streams,and shall drive and deliver them at a pertain poiat, Ever since the organization of defendant corporation it bad driven and ,cared for plain1liff's logs. 'l'he differences referred to in the contract and over whfch litigation was pendfng were chiefly in regard to compensation. Said streams were the only meansl;y which could be got to market, and defendSlJt jlitherdi"l'ect).y or by, its qontrol over.qthercomp!,nies manllogedlloll the facilitiel! on said str.eams for getting logs to market. HeW. that the contract was not revocable at! pleasure, sinee, as' applied to its Bubjebt-mattel'. it showed that it was to remain in force until all the on the lands then owned by plaintiff bad been cut, and'delivered in said' ' , ,
CONTRAO'l'-IN'tERPltETATION-DURATION.
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2; , S:&'MB:':"'CON8IDBRATION.
At LliW. " On demurrer to petition. ' by J'ohh'Rdbson against the Mississippi River Logging Company to recover daqlages for breach of written contract regardiJ.1g drivilJg anddelItery'oflogs. ' " J. M."Guman, 'J. A. 'PUU"MY, and Henderson, Hurd, 'Daniela &: Ki,e8el, for pllliJ:!tiff. , " E;S: 1311:iley and Young &: Youi}g, fotAMendant. ' 'I .'