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act, and to ascertain other things not necessary to mention here. Section 10 directs the recorder of Clark county within ninety days after the establishment of such counties to transcribe all matters of record from the record books of Clark county that should be recorded in Lewis county, and deliver the same to the recorder of Lewis county. Section 11 provides for a disposition of the school money in the hands of the treasurer of Clark county. Section 12 provides that said counties of Lewis and Clark shall form a part of the first judicial district of the state, and provides for the holding of terms of court in such counties. Section 13 provides that the judge of the probate court of Clark county shall proceed at once to transfer all civil and criminal actions and un

of said Kootenai county. Section 2 describes said indebtedness according to § 6 of said the boundaries of Lewis county. Section 3 describes the boundaries of Clark county. By section 4 the governor is authorized and directed, within ten days after the act shall become a law, to appoint county officers for each of said counties (designating them); and it also provides that such officers shall qualify within ten days from the date of their appointment. Section 5 establishes the county seat of Lewis county at the town of Sandpoint, and also provides that the question of the permanent location of the county seat of said county shall be submitted to the voters of said county at the next general election. Section 6 of said act establishes the county seat of Clark county at Cœur d'Alene city, and provides that the question of the permanent location of the county seat of said county shall be sub-settled estates of deceased persons, and all mitted to the voters of said county at the other business required to be transferred, to next general election. The 7th section pro- the probate court of Lewis county. Secvides that all of the personal property, tion 14 provides that the county commiscounty records, books, papers, money, cred- sioners of said Clark and Lewis counties its, furniture, and fixtures belonging to the shall, within five days after receiving notice former county of Kootenai shall become the of their appointment, meet at their respecproperty of Clark county, and further pro- tive county seats, and organize for the transvides that, after the proper officers of Clark | action of county business, and shall county shall have been appointed and quali-establish precincts in their respective counfied, all such books, papers, etc., belonging ties, and appoint precinct officers thereof. to the former Kootenai county, shall, by the Section 15 provides that said counties of custodian of the same, be immediately de- Lewis and Clark shall constitute the thirlivered to the proper officers of Clark teenth senatorial district, and that each of county; and provides that the county com- said counties shall elect one member of the missioners of Clark county shall provide house of representatives. Section 16 prosuitable officers within the corporate limits vides that all laws of a general nature apof Cœur d'Alene city for the accommodation plicable to the several counties of this state of such records and the county officers of and the officers thereof are made applicable said Clark county. The 8th section provides to said counties. Section 17 repeals all acts that the indebtedness of Kootenai county at and parts of acts inconsistent with said act. the date this act takes effect shall be ap- Section 18 declares that an emergency exportioned between the counties of Lewis and ists therefor, and that this act shall take Clark, and goes into detail of the way in effect and be in force from and after its paswhich such indebtedness shall be appor- sage and approval. Said act was approved tioned between said counties, and also pro- on the 28th day of February, 1905. vides the manner that all property belong- From the various provisions of said act, ing to Kootenai county shall be divided be- it is clear to me that all of the provisions tween said Lewis and Clark counties. Sec- thereof in regard to the creation of Clark tion 9 provides for the appointment of com- county, and the establishment of the county petent accountants to ascertain, the amount seat at Cœur d'Alene city, were the main of indebtedness of the former Kootenai coun- inducement for the adoption of the remainty, and directs such accountants to proceeding part of said act. The very first section and ascertain from the books and records of the auditor's and recorder's and treasurer's offices the whole amount of the indebtedness of Kootenai county, and to compute from the assessment roll for the year 1904 the total taxable property of each of the counties of Lewis and Clark, and directs them to make a list of all county property, and report the same in writing to the judge of the district court of the first judicial district, which judge is directed to fix the reasonable cash value of such property, and apportion

of said act abolishes Kootenai county, and the abolishment of that county was no doubt an inducement for the passage of said act. That being true, the part of said act creating Lewis county cannot stand when tested by the rule above laid down by Judge Cooley, the Supreme Court of the United States, and the supreme court of Nebraska. This act is so connected and so related in substance, as I view it, as to preclude the supposition that the legislature would have created Lewis county without having creat

sense.

moval of the county seat. That feature of the bill was the main inducement for its passage. The act under consideration was approved by the governor on the 28th day of February, 1905, and contained the emergency clause, and hence became a law, if ever, on that day. As the 1st section abolished Kootenai county, if the act is valid the peo

ed Clark. The act is so drawn, and the section so constructed, and the provisions so interdependent, as to clearly indicate that the legislature intended the act to operate as a whole, and that it would not have created Lewis county alone. That being true, the entire act must be held invalid. If you would cut out of this act all of the provisions except those applicable to Lewis coun-ple of that county were without county govty, the remaining part would be unintelligible-would in part, at least, be a jumble of words without meaning, "sound without ." In considering this question, I think the unconstitutional part of said act was an inducement to the legislature for a passage of the other portions. It may be insisted that this question must be determined solely by an inspection of the act itself. We concede that proposition, with a slight qualification, however, which qualification is referred to in Sibley v. Smith, 2 Mich. 486, where the court said: "Courts are authorized to collect the intention of the legislature from the occasion and necessity of the law, from the mischief felt and the objects and remedy in view."

The Supreme Court of the United States, in United States v. Union P. R. Co. 91 U. S. 72, 23 L. ed. 224, said: "Courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it." In Stout v. Grant County, 107 Ind. 343, 8 N. E. 222, it was held that the history of a country, its topography and general conditions, are elements which enter into the construction of the laws made to govern it, and are matters of which the court will take judicial notice; and it has been held that the general state of opinion, public, judicial, and legislative. at the time of an enactment of a measure, may be considered by the courts in construing it. See Redell v. Moores, 63 Neb. 219. 55 L. R. A. 740, 93 Am. St. Rep. 431. 88 N. W. 243, and authorities there cited. It is a part of the legislative history of this state that a bill was introduced in the legislature for the creation of Lewis county out of substantially the same portion of Kootenai county that the Lewis county referred to in this act contains, and that said bill failed to become a law because of supported the present act. And the inducethe opposition of members who afterward ment in said act to such members was, no doubt, the creation of Clark county, and the removal of the county seat from Rathdrum to the city of Coeur d'Alene. Those facts are matters of common knowledge. One of the chief inducements to the passage of said act was the abolishment of Kootenai county, and the creation of Clark county, with the re

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ernment from the 28th day of February to the 7th day of March, 1905, when the officers appointed by the governor qualified. Said act did not provide that the officers of Kootenai county should continue in office until their successors were appointed and qualified, and, if the act be held valid, the people of that county were without county government for a number of days. The legislature cannot deprive the people of any county of such local or self government as the several counties of the state are entitled to under the Constitution. If they can deprive a people of local government for six days, they may do so for six months or six years. The legislature is prohibited from depriving the people of any county of local self-government. Article 18 of our Constitution, which is in regard to county organization, requires the legislature to establish a system of county governments which shall be uniform throughout the state, and prohibits the legis lature from depriving the people of any county of such government. In People ex rel. Bolton v. Albertson, 55 N. Y. 50, the court held that this right of self-government lies at the foundation of our institutions. Section 2 of article 18 of the Constitution is as follows: "No county seat shall be removed unless upon petition of a majority of the qualified electors of the county, and unless two thirds of the qualified electors of the county, voting on the proposition at a general election, shall vote in favor of such removal. A proposition of removal of the county seat shall not be submitted in the same county more than once in six years, except as provided by existing laws. No person shall vote at any countyseat election who has not resided in the county six months, and in the precinct ninety days." By the provisions of that section the legislature is prohibited from changing a county seat, and the people themselves are prohibited from changing it, except on a two-thirds vote of the qualified electors; and under those provisions the legislature will not be permitted to change a county seat under the guise or pretense of creating a new county. They will not be permitted to do thus indirectly what they are prohibited from doing directly. In this case, under the pretense of creating a new county the legislature has removed a county seat. They attempted to abolish Kootenai county,

and attempted to create a new county out of every county in the state could be changed the northern part thereof, and in the same as often as the legislature held a session. act changed the name of the southern part | That certainly would leave the location of of Kootenai county, and changed the county seat from Rathdrum to Cœur d'Alene city. Judge Cooley, in his work on Constitutional Limitations, 7th ed. p. 244, says: "There is no difficulty in saying that any such act, which, under pretense of exercising one power, is usurping another, is opposed to the Constitution and void."

the county seat of the several counties of the state to the "mutatious whims" of the legislature, while by the terms of the Constitution the people themselves are prohibited from removing their county seat oftener than once in six years. I am not in accord with that contention, and, in my view of the matter, the creation of a “new county,” as contemplated by our Constitution, requires something more than the change of the name of a county and the change of its county seat. Under the pretense of exercising the power to create a new county, the legislature has usurped the power reserved by the people to change a county seat.

In People ex rel. Lincoln County v. George, 3 Idaho, 72, 26 Pac. 983, in a dissenting opinion, I held that the legislature had a right to abolish a county in the creation of new counties; but, upon a further investigation of this question, I am not satisfied that my views in that opinion on that point were correct. However, that case was not decided upon that point.

In addition to the cases cited on the origi nal hearing, counsel for petitioner cited

The case of People ex rel. Bolton v. Albertson, 55 N. Y. 50, is a remarkable one of the intention of the legislature to avoid and evade the provisions of the Constitution, and still keep within its terms. I think the principle laid down there is applicable to the case at bar. It is there held that a legislative enactment evading the terms and frustrating the general and clearly expressed or necessarily implied purposes of the Constitution is as clearly void as if in express terms forbidden. And in Taylor v. Ross County, 23 Ohio St. 22, the supreme court of Ohio found itself under the necessity of declaring that that which was forbidden by the Constitution could no more be done indirectly than directly, which has now become a well-recognized rule of law. Knowing the bitterness and strife engen-Frost v. Pfeiffer, 26 Colo. 338, 58 Pac. 147. dered in county-seat fights, the framers of the Constitution provided stringent provisions in regard to the removal of county seats, and prohibited such removal except on a two-thirds vote of the qualified electors, and also prohibited the submission of such questions to the voters oftener than once in six years. Is it possible that the framers of the Constitution intended to permit the legislature to change the county seats of every county in the state at each session of the legislature thereof, by simply giving the county a new name, and changing the county seat under the guise and pretense of creating a new county? I think not. Counsel for the petitioner, in their original arguments in this case, contend that, under the provisions of the Constitution, the legislature could abolish a county and create a new one out of identically the same territory, and change the county seat. If that contention be true, the county seat of

That involved the constitutionality of an act of the general assembly of Colorado creating the county of Teller out of portions of the counties of El Paso and Fremont. By that act no county was abolished, and no county seat removed. The act, after creating Teller county, left the counties of El Paso and Fremont simply with reduced areas. We are unable to see wherein the decision in that case has any application whatever to the questions under consideration in the case at bar.

I therefore hold that if this court had the authority, under the law or its rules, to grant a rehearing in a case originally brought in this court, the showing made by the petition for a rehearing in this case is not sufficient to warrant a rehearing. A rehearing is denied.

Ailshie, J., concurs. Stockslager, Ch. J., dissents from the conclusion reached.

UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT.

Joseph A. WILLIAMS et al., Appts.,

v.

Richard M. NEELY et al.

(67 C. C. A. 171, 134 Fed. 1.)

1. Any fact which renders it against *Headnotes by SANBORN, Circuit Judge. NOTE. AS to equitable jurisdiction to enjoin judgments, see note to Jarrett v. Goodnow, 32 L. R. A. 321.

conscience to enter or execute a judgment at law, and which was not available to the defendant at law, confers jurisdiction upon a court of equity to enjoin the proposed entry or execution.

2. A sound reason, inhering in the

same transaction from which a promissory note springs, why the holder ought not, in equity and good conscience. to recover its face value, is a good equitable

defense to it, although this defense constitutes neither an offset, a counterclaim, nor an affirmative cause of action against the holder of the note.

3. A partial

4.

failure of consideration which results from a defect of title is a good defense pro tanto to an action by the vendor upon a promissory note given for the purchase price of land which the vendor has conveyed with covenants of warranty and against encumbrances.

An injunction should issue to stay an action at law upon a promissory note for the purchase price of land until this equitable defense of reduction is allowed whenever the remedy at law is less certain, prompt,. and efficient to attain the ends of justice, either because the interests of the parties require that the title to the land should be perfected, that their rights should be adjudicated, and that the litigation should be closed.-a result which no remedy at law is adequate to accomplish, or because it entails circuity of action, or because there is imminent danger of unjustifiable loss or injury to the payee of the note, which a court of equity may, and a court of law cannot, prevent.

5. The adequate remedy at law which will deprive a court of equity of ju- ́ risdiction must be a remedy as certain, complete, prompt, and efficient to attain the ends of justice as the remedy in equity. 6. The assignee of a chose in action takes it subject to all the defenses which could have been set up against it in the hands of the assignor at the time of the assignment.

7. One who purchases for value of a creditor the obligation of his debtor, and obtains the latter's promissory note, payable to himself, as evidence of his obligation, with full knowledge of the consideration thereof, and of the facts which condition the inception of the original obligation, takes the note subject to all the defenses which existed

against it in the hands of the original cred

itor.

8. The basis of waiver is estoppel, and where there is no estoppel there is no waiver. 9. The defense of reduction or recoupment, which arises out of the same transaction as the promissory note or claim, survives as long as a cause of action upon the promissory note or claim exists, although an affirmative action upon the subject of the defense may be barred by the statute of limita

tions.

10. The doctrine of laches is that courts of equity are not bound by, but usually act in analogy to, the statute of limitations governing actions at law of like character. Under ordinary circumstances a suit in equity will not be stayed for laches before, and will be stayed after, the time fixed by the analogous statute of limitations at law; but, if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the statute, the chancellor will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it.

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who has an equitable defense of reduction to a promissory note, which has been and is the subject of pending litigation in another court, and which, if available at law, would survive as long as the cause of action upon the note existed, to wait until an affirmative action at law upon the subject of the defense is barred, and until the equitable defense is rejected in an action at law upon the note, before invoking the aid of a court of equity to enjoin the prosecution of the latter action until his equitable defense is allowed.

12. The court which first acquires jurisdiction of specific property by the issue and service of process in a suit to enforce a lien upon it, in which it may be necessary to take possession or control of it, retains jurisdiction until the end, free from the interference of any court of co-ordinate jurisdiction.

13. A subsequent suit involving rights in the same property in a court of coordinate jurisdiction should not be dismissed, but, before a seizure of the property under it, should be stayed until the proceedings in the earlier suit are terminated, or ample time for their termination has elapsed.

(Hook, Circuit Judge, dissents.)

(November 18, 1904.)

APPEAL by complainants from a decree

of the Circuit Court of the United States for the District of Nebraska dismissing a bill to enjoin the prosecution of an action at law to enforce payment of a promissory note. Reversed.

Statement by Sanborn, Circuit Judge: This is an appeal from a decree which dismissed a bill in equity exhibited by the complainants below, Joseph A. Williams and Annie Williams, to enjoin the prosecution of an action at law which the defendant Richard M. Neely had brought against them in the court below to enforce the payment of their promissory note for $3,500, dated March 1, 1893, and due March 1, 1898, and to obtain a decree adjudicating the claims of the defendants in this suit to three quarter sections of land in the state of Nebraska. The material facts disclosed at the final hearing were these: Under the will of Richard S. Malony, Sr., Richard S. Malony, Jr, and Annie H. Neely owned three quarter sections of land, subject to the liens of two legacies which were charged upon the lands by the will, one of $200 per year payable to the defendant Hannah Blake, and one of $100 per year payable to the defendant Sarah Foss.

They sold one

of these tracts to the defendant Stanley B. Wilson, another to the defendant Wenzel Herdlichtka, and the third to the

complainant Joseph A. Williams. Before | evidence, and, in our view of the case is the sale of the third tract, Richard S. not material. Malony had conveyed his share in it to On April 18, 1902, Richard M. Neely Annie H. Neely, who made the contract of brought an action at law against the sale and the deed to the complainants. complainants on the note, and they anEach sale was made for $6,000, the full swered the facts which have been recited. value of a title to each tract free from all The court held at the trial of that action encumbrances, and Wilson and Herd that these facts constituted no defense to lichtka have paid for their quarters in the note at law, and this suit was instifull. The facts and conclusions which tuted, and the action at law was stayed have been recited are res judicata between the parties to this suit by virtue

of a decree of the district court of Rich

ardson county, in the state of Nebraska, in a suit to which they were parties; and that suit is still pending under an order of the supreme court of that state to the district court to ascertain the amount owing by the complainant Joseph A. Williams herein on account of the purchase of his tract, to take control thereof, and, in case the law and the facts should be found to justify that course, to apply that amount in payment of the amounts due to the annuitants, Hannah Blake and Sarah Foss.

to abide its determination. The same

court has now held that these facts present
conclusion is challenged by the appeal.
no reason for relief in equity, and this

Van

Devan

Argued before Sanborn, ter and Hook, Circuit Judges. Mr. J. H. Broady, for appellants: Before complainants had anything to do with the land or the estate, respondent Neely, in the executors' bond, promised to pay said legacies, and thereby enabled said executors to get hold of said land and sell and convert the same to their own use, leaving the legacies thereon On February 6, 1902, Annie H. Neely unpaid. The general doctrine of equity and Richard S. Malony, Jr., as prin- jurisprudence is to avoid circuity of cipals, and the defendant Richard M. Neely actions, and bring in all the parties and and others as sureties, executed a bond do justice between them. In such cases in the penal sum of $1,000 to the county as this the doctrine of equitable set-off judge of Richardson county, conditioned, comes in. That bond obligation is such. among other things, that they should pay and discharge all legacies chargeable upon ed. 426; Ferris v. Burton, 1 Blount v. Windley, 95 U. S. 177, 24 L. Vt. 439; the estate of Richard S. Malony, Sr., or such dividends thereon as should be deFoot v. Ketchum, 15 Vt. 258, 40 Am. Dec. creed by the county court. The defendant Richard M. Neely was the agent of his mother, Annie H. Neely, to sell the quarter section of land which was purchased by the complainant Joseph A. Williams. In October, 1892, he made and signed a written contract, as the agent of his mother, to sell and convey this land to Williams for $6,000, $500 of which was then paid, and the remainder was to be paid $2,000 on March 1, 1893, the covenants of warranty in the deed. and $3,500 on March 1, 1898. About Vorce v. Rosenbery, 12 Neb. 448, 11 N. March 1, 1893, in performance of this W. 879.

678; Hooper v. Armstrong, 69 Ala. 343;
North Chicago Rolling Mill Co. V. St.
Louis Ore & Steel Co. 152 U. S. 615, 617,
38 L. ed. 571, 572, 14 Sup. Ct. Rep. 710.
The equity court, in a proper case, will
go above the penal sum of the bond.
Wand, 170 Mo. 531, 62
L. R. A. 427, 71 S. W. 337.
In equity, the note. in the hands of the
to defenses the same
payee, the respondent herein, is subject
as if he had made

Burnside V.

the note.

Chariton Plow Co. v. Davidson, 16 Neb. 374, 20 N. W. 256; Camp v. Sturdevant, 16 Neb. 698, 21 N. W. 449.

contract, Williams paid this $2,000, and It is a legal impossibility that Richard he and his wife made a note and a mort-M. Neely can be an innocent purchaser of gage upon the property for $3,500, and Annie H. Neely executed a warranty deed of it to him. These instruments were prepared by Annie H. Neely, or by one of her agents, and the note and mortgage were made payable to Richard M. Neely; but the only consideration for them was the land the complainants purchased. Richard M. Neely never paid them any- Wilson v. Roots, 119 Ill. 386, 10 N. E. thing for the note or mortgage. What 204; Keith v. Miller, 174 Ill. 73, 51 N. E amount, if anything, he paid his mother 151; Brewer v. Penn. Mut. L. Ins. Co. 36 for them, is left in grave doubt by the C. C. A. 289, 94 Fed. 347; Low v. Black

Where different instruments are executed as evidences of different parts of one transaction, they are to be construed as constituting but one single contract.

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