The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1864-02-18
Fran Mortgages in the Supreme
Court.
AN rmPORrANT DECISION.
OPINION BY JUSTICE COLE.


ents.
The power of a railroad company to re
ce;va from a subscriber III payment Of its
stock promissory note secured by mort
cage on real estate-instead Of being paid
therefor in cash-was distinctly affirmed in
Clark u.s. Harrington, II Wis. 300; Blunt rs.
Walker id 334 and Cornell Is. Hichens id
1853. Since those decisions Were pronounced
many other cases have come before us. Ia
volving the same question Of power, and have
been decided the same way. These causes
were all well argued and were considered by
the court with all the care AMI attention we
were able to bestow upon them, consistently
with proper discharge OF our other duties.
| And as the result Of our best Judgment up
on the matter, We We're Of opinion that ran
| road corporations, under the provisions OF the
various charters which come before us, had
authority to take stock subscriptions i'll this
| manner, and that i'll 80 doing they were not
acting ultra 0irs>. The argument of the re-
sponient in this case was confined almost
| exclusively to an examination Of those decls
ions, particularly that in Blunt os Walker
the counsel contending that we had entirely
misapprehended the law upon this subject
/ and had placed an erroneous construction up
on the charter Of the Milwaukee q hlssls-
| sippi Railroad Company, under which the
| contracts III that case and this We're made
| Bat notwithstanding this point was argueG
at great length and with much ability, we
confess our views heretofore expressed upon
this question of power remain unchanged
| We still think the Milwaukee 4 mississippi
Railroad Company, in exchanging its stock
70 4 IA 1--lfpnf
design Of selling those securltly- for the pur-
10 So of raising money with which to con
struct its road, did not exceed its corporate
powers. For it seems to us ihat the power
giyen the directors in those provisions of the
| charter referred to in Blunt Is. Walker in
cludas tie right to employ the means requi-
site and fairly applicable to the attainment
| Of the ends Of such power, which are not pre-
| Guided by restrictions or exceptions III the
| charter, or arc not immoral nor contrary to
| public policy. And We can see no essential
difference in the transaction whether the
stock subscriber should himself sell his note
and mortgage to raise the money with which
to pay for stock, or whether the company on
exchanging its stock for such securities should
itself convert them into money, and thus
raise the means to build its road But it is
not proposed at this time to enter upon dis
| cussiOn of the question whether tie company
acted outside IFS charter in receiving the note
and mortgage III payment OF It's stock. Our
views and reasoning upon this subject are
| fully disclosed in the opinions already rem
dcred. Another argument would necessari-
| w go over the same ground covered in. the
previous decisions It is believed that no
new objection was taken, or authority cited
| to show a want If power on the part Of the
| corporation TO enter into these contracts than
had already been raised or brought to the at
| tention Of the court in the argument of 9TH
er causes. The question Of power, therefore
will be permitted to rest upon the grounds
upon which it has been placed, and we will
proceed to notice some other questions raised
| upon the record, and necessary to be cOusid-
| cred. LIST it is objected that the bond Of the
railroad company for the payment Of which
| the note and mortgage We're transferred as col
lateral security was void for usury. The ma
tcrial facts relating to this transaction are
the following:
! The railroad company in May 1881 made
and executed its bond containing an assign.
ment Of the note and mortgage and having
attached together the note, mortgage and
bond delivered them so attached to its agent
in this state to be negotiated for money for
its use. In January 1862 the agent az
! Bridgeport in the State Of Connecticut trans
ferred the bond with the note and mortgage
thus attached to the appellant in cOnsdera-
ton of a.loan of fifteen hundred dollars made
Iy him to the'cOmpany at the time Of such
delivery, the coupons for interest forjau. LIST
1852. having been cut off and retained by
the company. No contract had been made
for this loan to the company previous TO the
time of said delivery to the appellant. The
| amount of the loan was received by the agent
and deposited. by him to the credit of the
| company in q bank in the city Of New York,
whence it was afterwards drawn out upon
the order Of thecompany. The bond draws
the principal and interest sby the terms OF
1.-the bond were payable III New York.
| Ifthe contract is considered with refer
renee to the laws Of this State, then clearly
it is valid, because herailpad company was
expressly authorized to boFfowmoney Of any
i, persb n or corporation, at amy rate Of interest
4 whit might be agreed upon-any law upon
1.-THE subject of usury Of this state or any 9th
err State where the loan might be effected to
the contrary notwithstanding Chap. 81.
laws 1913 This provision Of law fully EN-
| powered the company to contract for any
rate Of interest which it might see fit to pay.
I IT, therefore, the transaction is considered
| with reference to oilr laws, it was net pro
| hibited by any law of usury And that there
! is much reason for saying that the contract
| is a domestic ore, aud to be governed by the
laws of this State W. think. is manifest from
! the following Considerations
| The bond was made Ivy the company in this
state and placed III the lauds of its agent to
be negotiated wherever it could be done for
| the interest and advantage of the corpora
ti6u. The company was organized to con-
struct railroad III this state,aud the money
| borrowed was to be used exclusively for the
Accomplishment of this object The bond
/ was secured by, note and mortgage given
and payable il this state. And it is a more
probable and reasonable Inference that the
company executed the bond wholly with re-
| ference to the laws of this state than to say
| it did so with the Intention Of evading the
laws of sone-otherl state upon the subject OF
| usury. But suppose we are mistaken iii this
and that the contract must be constructed
with reference to the laws of New York
| where the principal and interest were paya-
| BILE. By q law Of that state a corporation
was prohibited from interposing the defence
| ofusury i'll any action, Curtis vs.. Leavitt Is
~, Y. r. 8 Butterworth VS. O'Brian 20 dc
275) and il has been held that the act appli-
! ed to foreign corporation litigatiDg in the
ledults of that state.
l1Sou thern Lite Insurance and Trust. Go. -
Packer II do 81
If, Therefore, the law of the place Of per
fdrmanee is to govern, individually the
railroad bond is a legal and valid obligation
| Md if the courts Of New York would enforce
this contract for much stronger reason
should the courts of this state do so in view
Of the provision of the charter which permits
the company to agree for the payment Of any
rate of interest on loans effected fog the pur-
tpose of constructing its road "a