[401] [190] law. 2. The holders of the bonds, and agents of the city, are particeps criminis in the act of violating the constitutional prohibition, and equity will no more raise a resulting trust in favor of the holders than the law will raise an implied assumpsit for money had and received. 3. The purchasers of bonds issued in excess of the constitutional limit have no lien upon public to have been expended if other funds have also works upon which the purchase money is alleged been expended upon such works. C. C. Huntley and S. S. Huntley was so far exe- | express promise, and is as binding in equity as at The decrees, in general and in special term, low, for all that he paid for the one-sixth part | The decree below is reversed, with directions for 4. Where the complainant seeks to recover the money he let the municipality have he must clearly identify it or the fund or other property which represents it in such a manner that it can be reclaimed and delivered without taking other property with it or injuring other persons or interfering with other rights. 5. A decree which does not attempt to restore the specific money of the complainant, but which is for a sum equal in amount to the bonds and interest, cannot be sustained. being a decree to pay as on an implied contract, 6. A bill which sets up a cause of action on which there is an adequate remedy at law fails for want of equitable jurisdiction. [No. 1180.] Submitted Jan. 9, 1885. Decided Apr. 6, 1885. APPEAL from the Circuit Court of the The history and facts of the case appear in the opinion of the court. See also Buchanan v. Litchfield, 102 U. S., 278 (bk. 26, L. ed. 138). Messrs. John M. Palmer and B. S. Edwards, for appellant. Mr. D. T. Littler, for appellees: The doctrine of equity is that money or property received by a party under such circumstances as are set forth in the bill in this case has an implied trust character imposed upon it by mere operation of law, independent of the intention of the parties, and, as such, will be enforced upon the conscience of the party. 2 Story, Eq., § 1254; Chapman v. Douglas Co. 107 Ú. S., 348 (bk. 27, L. ed. 378); Pimental v. San Francisco, 21 Cal., 362; Argenti v. Same, 16 Cal., 282; Parkersburg v. Brown, 106 U. S., 487, (bk. 27, L. ed. 238); Marsh v. Fulton Co., 10 Wall., 676 (77 U. S., bk. 19, L. ed. 1040); Bridge Co. v. Utica, Chic. L. N. Aug. 4, 1883. Whether a city is under a legal obligation to make restitution of the money obtained without authority of law-that is, to refund to the proper party or parties such sums as were James H. McKenney, Clerk, Sup. Court, U. S. actually received by its authorized agents or True copy. Test: CITY OF LITCHFIELD, Appt., V. GEORGE WILLIAM BALLOU ET AL. (See S. C. Reporter's ed., 190-195.) Municipal bond-issue of, in excess of consti- 1. Where the Constitution of a State provides that officers upon the sale of the bonds-is not a question arising in the present action which is only for the recovery of the stipulated interest upon such bonds. Upon this point it is not proper at this time or in this form of action to express an opinion. Buchanan v. Litchfield,, 102 U. S., 293 (bk. 26, L. ed. 141). It cannot be doubted that a sound policy will be promoted by restoring the parties in all such cases to their position. It leaves no inducement for either party to contravene the law. The corporation is compelled to return just what it has received. The other party gets no more than he has parted with. It is believed that not a solitary case can be found which stands opposed to this salutary rule. Curtis v. Leavitt, 15 N. Y., 1. See also Leg [191] [192] gett v. Bank, 24 N. Y., 290; Paul v. Kenosha, | had a pre-existing indebtedness exceeding five Mr. Justice Miller delivered the opinion of the court: This is an appeal from a decree in chancery of the Circuit Court for the Southern District of Illinois. This suit was commenced by a bill brought by Ballou against the City of Litchfield. Complainant alleges that he is the owner of bonds issued by the City of Litchfield to a very considerable amount. That the money received by the City for the sale to him of these bonds was used in the construction of a system of waterworks for the City, of which the City is now the owner. He alleges that one Buchanan, who was the owner of some of these bonds, brought suit on them in the same court and was defeated in his action in the Circuit Court and in the Supreme Court of the United States, both of which courts held the bonds void. He now alleges that though the bonds are void the City is liable to him for the money it received of him, and as by the use of that money the waterworks were constructed, he prays for a decree against the City for the amount, and, if it is not paid within a reasonable time to be fixed by the court, that the waterworks of the City be sold to satisfy the decree. The bill also charges that he was misled, to purchase the bonds, by the false statements of the officers, agents and attorneys of the City, that the bonds were valid. Other parties came into the litigation and answers were filed. The answer of the City denies any false representations as to the character of the bonds; denies that all the money received for them went into the waterworks, but part of it was used for other purposes, and avers that a larger part of the sum paid for the waterworks came from other sources than the sale of these bonds, and it cannot now be ascertained how much of that money went into the works. The case came to issue and some testimony was taken, the substance of which is that much the larger part of the money for which the bonds were sold was used to pay the contractors who built the waterworks, while a very considerable proportion of the cost of these works was paid for out of taxation and other resources than the bonds. There is no evidence of any false or fraudulent representations by the authorized agents of the City. The bonds were held void in the case of Buchanan v. Litchfield, 102 U. S., 278 [bk. 26, L. ed. 138], because they were issued in violation of the following provision of the Constitution of Illinois: "Article IX. "Section 12. No county, city, township, school district or other municipal coporation shall be allowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness." It was made to appear as a fact in that case, that at the time the bonds were issued the City The bill in this case is based upon the fact that the bonds are for that reason void, and it makes the record of the proceedings in that suit an exhibit in this. But the complainant insists that though the bonds are void the City is bound, ex equo et bono, to return the money it received for them. It therefore prays for a decree against the City for the amount of the money so received. There are two objections to this proposition: 1. If the City is liable for this money an action at law is the appropriate remedy. The action for money had and received to plaintiff's use is the usual and adequate remedy in such cases where the claim is well founded, and the judg ment at law would be the exact equivalent of what is prayed for in this bill, namely: a decree for the amount against the City, to be paid within the time fixed by it for ulterior proceedings. In this view the present bill fails for want of equitable jurisdiction. 2. But there is no more reason for a recovery on the implied contract to repay the money than on the express contract found in the bonds. The language of the Constitution is that no city, etc., shall be allowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of its taxable property." It shall not become indebted, shall not incur any pecuniary liability; it shall not do this in any manner, neither by bonds, nor notes, nor by express or [193] implied promises. Nor shall it be done for any purpose, no matter how urgent, how useful, how unanimous the wish. There stands the existing indebtedness to a given amount in relation to the sources of payment as an impassible obstacle to the creation of any further debt in any manner or for any purpose whatever. If this prohibition is worth anything it is as effectual against the implied as the express promise, and is as binding ir a court of chancery as a court of law. Counsel for appellee in their brief, recognizing the difficulty here pointed out, present their view of the case in the following language: "The theory of relief assumed by the bill is that notwithstanding the bonds were wholly invalid, and no suit at law could be successfully maintained either upon the bonds or upon any contract as such growing out of the bonds; yet, as the City of Litchfield is in possession of the money received for the bonds, or, which is the same thing, its equivalent in property identified as having been procured with this money, and having repudiated and disclaimed its liability in respect of the bonds, it must, upon well-established equitable principles, restore to the complainants what it actually received, or at least so much of what it received as is shown now to be in its possession and in its power to restore." If such be the theory of the bill the decree of the court is quite unwarranted by it. The money received by the City from Ballou has long passed out of his possession and cannot be restored to complainant. Neither the spe [194] [195] cific money nor any other money is to be found the complainants entered. Much, also, of the As regards the waterworks, into which it is said the money was transmuted, if the theory of counsel is correct the waterworks should have been delivered up to plaintiff as representing their money, as property which they have purchased, and which, since the contract has been declared void, is their property, as representing their money. In this view the restoration to complainants of the property which represents their money puts an end to obligations on both sides growing out of the transaction. The complainants, having recovered what was theirs, have no further claim on the City. The latter having discharged its trust by returning what complainant has elected to claim as his own, is no longer liable for the money or any part of it. If the complainants are after the money they let the City have they must clearly identify the money or the fund or other property which represents that money in such a manner that it can be reclaimed and delivered without taking other property with it or injuring other persons or interfering with others' rights. It is the consciousness that this cannot be done which caused the court and counsel to resort to the idea of a debt and a lien which cannot be sustained. A lien of a person on his own property, which is and has always been his, in favor of himself, is a novelty which only the necessities of this case could suggest. Another objection to this assertion of a right But here also the decree departs from what The money received on the bonds having been expended, with other funds raised by taxation, in erecting the waterworks of the City, to impose the amount thereof as a lien upon these public works would be equally a violation of the constitutional prohibition, as to raise against the City an implied assumpsit for money had and received. The holders of the bonds and agents of the City are participes criminis in the act of violating that prohibition, and equity will no more raise a resulting trust in favor of the bondholders than the law will raise an implied assumpsit against a public policy so strongly declared. But there is a reason why even this cannot be done. Leaving out of view the question of tracing complainant's money into these works, it is very certain that there is other money besides theirs in the same property. The land on which these works are constructed was bought and paid for before the bonds were issued or voted. The streets through which the pipes are laid is public property into which no money of I am requested to say that Mr. Justice Harlan dissents from the judgment and opinion of the court. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Ex Parte: tioner. (See S. C., Reporter's ed., 147-149.) Mandamus-discretion of inferior courts not A writ of mandamus does not lie to compel the Argued, Mar. 31, 1885. Decided, Apr. 6, 1885. PETITION for a writ of mandamus. The history and facts of the case appear Mr. John H. Mitchell, for petitioner. Mr. Chief Justice Waite delivered the opin- This is an application for a writ of mandamus requiring Matthew P. Deady, Judge of the District Court of the United States for the District of Oregon, to "forthwith sign and execute, by signing or countersigning any and [147] all such orders, matters and things as may be | until the plaintiff had notice of the application requisite or necessary to enable your petitioner and could be heard thereon. The amount so (Ellis G. Hughes, an attorney at law practicing ordered to be paid was afterwards received in the circuit and district courts of the United from the registry of the court by the petitioner. States for such district) to withdraw from the The application for the rest of the fund was depository of said court the sum of five hun- subsequently heard, the plaintiff in the suit dred dollars belonging to him." The petition appearing to resist, and upon full consideration for the writ, which is sworn to by the petitioner, it was expressly adjudged by the court that the states that on and prior to May 3, 1882, there litigation in the case was not ended, and that was pending in the Circuit Court of the United "neither by the terms of the decree nor the right States for the District of Oregon a suit in equity and justice of the case was he [petitioner] enfor the foreclosure of a mortgage in which titled to the same [the money] until he had William Reid, manager, was plaintiff, and H. earned it by prosecuting said suit to a final McCallister and W. B. McCallister, defendants, decree as to all the defendants therein." The and that the plaintiff therein "recovered in said application for the remainder of the money was suit a certain decree as against the defendants, consequently denied, and the fund was left ✦✦✦ and a certain order of sale, wherein and "in the registry of the court to be disposed of [148] whereby it was ordered, adjudged and decreed or applied hereafter as the rights of the parties that the defendants*** should pay to the and justice of the case may require.' Cerplaintiff a certain sum of money, and interest tainly upon this return the petitioner is not as therein specified, and also the costs and dis- entitled to the writ he asks. bursements in the suit to be taxed, ‘including 10 per cent on the full amount due from the defendants ✶ ✶✶ to the complainant as an attorney's fee to the attorney of the complainant,' and that in default of such payment being made, certain lands in said decree and order of sale set out and described, be sold." The petition further states "that your petitioner, as the attorney of the plaintiff, by ex " The rule heretofore granted is discharged, with costs. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Ex Parte: press agreement and by the express terms and In the Matter of DAYTON S. MORGAN AND C. ASHLEY SMITH, Petitioners. (See S. C., Reporter's ed., 174–176.) trolled by. inferior court to decide a matter within its jurisdic- 2. The judgment of an inferior court upon a mo- conditions of said decree and order of sale, was a No copies of the various orders and decrees on which the rights of the petitioner depend were attached to the petition; but upon the positive sworn statements of the petitioner as to their nature and effect, a rule was entered on the district judge to show cause why the writ [149] asked for should not be issued. To this rule return has been made from which it appears unmistakably that it has never been adjudged that the petitioner was the owner of the money in court. On the contrary it does appear that on the 4th of December, 1884, the petitioner asked that the money in court, being $1,039.42, be "paid to him by the clerk," and thereupon it was ordered "that there be paid to said Hughes (the petitioner) out of said funds the sum of $519.04," but the court declined to make any disposition of the rest of the fund Argued Mar. 30, 31, 1885. Decided Apr. 6, 1885. NOTE.-Mandamus-control of inferior tribunaldiscretion-classification. Three distinct classes of cases arise: 1. Where the decision by the lower tribunal of the question to do or not to do a certain act in itself involves discretion. 2. Where the method of doing the act alone involves a question of discretion, or, the duty to act being clear, the performance of this act requires the exercise of discretion. 3. Where the act is purely ministerial, involving no question of discretion at any stage. In the first class of cases a mandamus will never be granted. Ex parte Morgan, supra; and cases cited. may, In the second class of cases the writ will issue, to For definition of ministerial act in this connec- For full citation of authorities see M'Cluny v. Sil- As to the use of the writ of injunction in related cases, see Mississippi v. Johnson, 71 U. S. (4 Wall.), 475, XVIII., 437, note. [174] [175] mandamus. Opetition for a wait of mount the case suffi- Perry, 102 U. 5., 183 (bk. 26, L. ed., 481. ing, 94 U. S., 418 [bk. 24, L. ed. 165]; Ex parte ciently appear in the opinion of the court. Mr. Edward Robey, for petitioners. Messrs. W. H. Calkins, A. L. Osborn and A. C. Harris, for respondents, contra. Mr. Chief Justice Waite delivered the opinion of the court: This is an application for a writ of mandamus requiring the Circuit Court of the United States for the District of Indiana to amend a judgment entered January 20, 1883, in a cause wherein the relators were plaintiffs and Frederick Eggers defendant, "so as to conform to the complaint in said cause, and to the finding or verdict of the court rendered upon the trial of said cause." If a clerk in performing the ministerial act of recording a judgment has committed an error, the court may on motion at the proper time correct it, or it may do so in a proper case upon its own suggestion without waiting for the parties. Here the plaintiffs, believing that the judgment as recorded did not conform to the finding, moved the court to amend it in that particular. This motion the court entertained, but, being of the opinion that the judgment had been correctly recorded, refused the amendment which was asked. In this the court acted judicially, and its judgment on the motion can no more be reviewed by mandamus than that which was originally entered in the cause. The writ is denied with costs. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Cited.-116 U. S., 402. The suit was ejectment to recover the posses- The judgment entry, which includes the only finding in the case, is as follows: Plf. in Err., ET AL. "And the court, having heard the evidence JOHN DOE, ex dem. DANIEL W. VISSCHER, ant the possession of so much of said lot two (2) as lies south of the south line of lot number one (1), as indicated by a fence constructed and maintained by the defendant as and on said south line, said fence running from the state line easterly to Lake Michigan, and assessing the damages at $1 and costs taxed at $-, which the plaintiffs shall recover of defendant. All of which is finally ordered, adjudged and decreed." After this entry the petitioner moved the court to amend and reform the judgment so that it would "conform to the complaint in said court and to the finding or verdict"; but the court, on full consideration, decided that the finding and judgment were not separate and distinct, and that the meaning was clear. The entry was to be construed as finding and adjudging that the plaintiffs were only entitled to recover the possession of so much of the premises sued for as lies south of the fence indicated. For this reason the motion was denied. It is an elementary rule that a writ of mandamus may be used to require an inferior court to decide a matter within its jurisdiction and pending before it for judicial determination, but not to control the decision. Ex parte Flippin, 94 U. S., 350 [bk. 24, L. ed., 195]; Ex parte R. Co., 101 U. S., 720 [bk. 25, L. ed., 875]; Ex parte Burtis, 103 U. S., 288 [bk. 26, L. ed.,392]. Here a judgment has been rendered and entered of record by the circuit court in a suit within its jurisdiction. The judgment is the act of the court. It is recorded ordinarily by the clerk as the ministerial officer of the court, but his recording is, in legal effect, the act of the court, and subject to its judicial control. The clerk records the judgments of the court, but does not thereby render the judgments. If there is error in the judgment as rendered, it cannot be corrected by mandamus, but resort must be had to a writ of error or an appeal. Ex parte Lor-| (See S. C. Reporter's ed., 340-355.) Railroads—sale of right of way void if purchaser has not the franchise-ejectment-estoppel. *Various owners of lands in Alabama granted to a railroad corporation of that State "and its assigns" in 1860, a right of way through the lands to make and run a railroad, the corporation having a franchise to do so and to take tolls; and it obtained a like right, as to other land, by statutory proceeding. It graded a part of the line. V., a judgment creditor of the corporation, in 1867 levied an execution on the right of way, and it was sold to V., and the sheriff deeded it to him, and he took possession of the road-bed. In 1870 he contracted with another railroad corporation to complete the grading of the line of road for so much per mile, and, on being paid, to transfer to it all his title to the franchise, right of way and property of the old corporation. He completed the work, and was not paid in full, but gave possession of the road in 1871 to the corporation, and its franchises and road and property passed in 1880 to another corporation, the defendant, against whom V. brought an action of ejectment to recover the road-bed: Held, (1) The right of way could not be sold on execution or otherwise to a purchaser who did not own the franchise. the defendant from disputing the right of V. to recover in ejectment, on the strength of his title. (3) V. could not recover. (2) There was nothing in the contract to estop [No. 207.] Submitted Mar. 20, 1885. Decided Apr. 13, 1885. IN ERROR to the Circuit Court of the Unit ed States for the Middle District of Alabama. The history and facts appear in the opinion of the court. Messrs. Edward Patterson and Harry C. Semple, for plaintiff in error. Messrs. Samuel P. Rice and John M. Chilton, for defendants in error. Mr. Justice Blatchford delivered the opinion of the court: * Head notes by Mr. Justice BLATCHFORD. [176] [340] [341] |