Dodgeville chronicle. [volume] (Dodgeville, Wis.) 1862-current, 1868-09-11
The Railroad Mortgage Suit.

OOuII III Iiio NooN'
The Board Of Supervisors of the county of
Iowa, plaintiff, against the Mineral Point r.
r. Company, VIM. E. Smith, Treasurer Of
the State Of Wisconsin, George L. Schuy
Ter, David r. Martin, Lucian D. Conan,
James G. Carter, Asahel Finch, Samuel 2.
Holmes, Henry Koop, George w. Cobb,
Luther Beecher, and the Mineral Point
+ Railroad, defendants.
qg From the Importance of this case, both
parties will expect from the court not only
a separate and consecutive statement OF
its conclusions of law, as required by the
code, but also the reason and authority on
which its conclusions are based
In linaine, it becomes necessary to dis
pose of an objection urged by the defend
ants, that the plaintiff, Iowa county, can
not sue without joining its trustee, the
Treasurer of the State of Wisconsin as its
co plaintiff. The bonds held by the coun-
ty and mortgage made to secure them,
show upon their face that the Treasurer of
Of the State, and his successors in office,
were the obligee and trustee for the holder
p of these bonds The State Treasurer is
: doubtless the "trustee Of an express trust
as defined in chapter l22, cecton IA, Of the
revised statutes. This section declares
that such trustee may sue alone, that is,
without joining the parties or persons
whose interest he represents. This settled
long mooted question among equity au-
thorities. But there never was any differ
ence of opinion as to whether the cestries
que trust, or benefciaries, could not sue
alone, provided the defendant did not OBJ
iect to it by demurrer He could not OBJ
iect-to it on the trial. because the objection
did not reach the merits or the foundation
of the action. The objection, if valid, APP
pears on the face of the complaint, and
could not be urged by answer; and this,
and all other objections appearing on the
face of the complaint, is waived by the de-
fendants Withdrawing their demurrer, un
less itsbe that the complaint does not state
facts sufficient to constitute cause of &C
3a tion.0 See RoUised Statutes, chap. 125, sec
81 tions and 9.
Again, it is urged there Is non joinder
vi of parties plaintiffs liz another point Of
view. The defendants contend that the
holders Of what are called the Kuehn
bonds" (see statement of facts,) are equal
ly entitled with the plaintiffs to the pro-
lection of the Jansen mortgage, these
bonds, on their face, purporting to be Sc
r. cured by that mortgage; that therefore
their owners should be united as co -plain-
tiffs, SO that their rights may be protected
81 This is q material enquiry, and may de-
- lnand decision at some point of this dis
rocussion, and / will attend to it now.
q Whether the :" Kuehn bondholders' are
entitled to the protection of the Jansen
mortgage, authorized to be issued by the
special act Of March 23d, 1858, Greeted in
the finding Of facts,) will depend upon the
construction to be given to the first and
second sections Of that act. The first sec
ton authorizes any county or municipal
corporation through which any portion of
a the railroad may run, to exchange its
?, bonds with the company for the bonds of
the company, the terms and character of
the bonds to be such as the contracting
parties might agree upon, with certain linn
itations not necessary to mention here.
The second section begins by authorizing
the company to issue its bonds, payable to
the Treasurer Of the State and his success
sors in office, in sums of $1,000 each,
which shall not exceed in the aggregate
$4,000 per mile of the whole surveyed
line of the railroad, and thus proceeds !:
6 and all such bonds which shall be deliv-
3 cred to any county, &C., in exchange as
aforesaid, shall contain stipulation guar
anteelng the payment of the principal and
interest which shall become due and paya-
BILE on the bonds Of said county, &C., re-
ceived in exchange therefor by said compa-
ny, and to secure the payment of such
bonds and interest, it shall be lawful for
said company to execute and deliver to the
Treasurer of the State and his successors
in office, in trust, for the use and benefit
of the holder Of any and all of said bonds,
deed OF conveyance, to be called a second
mortgage, &C." All agree that the Jams.
Ir9sen mortgage is the " second mortgage"
o issued in pursuance of this act The de-
PENDANTS contend that it will protect all
bonds issued under it, whether intended
for exchange with counties and towns or
for general circulation that only call such
bonds" as were actually exchanged with
y, the county by the company for bonds of
n the county, were required by the act to
contain a stipulation to save the county
harmless and indemnifed; other bonds
might, be issued by the company, in every
% respect complying with the law, and omit
ting the stipulation of indemnity, and be
9disposed of by the company to private in
iodividuais, provided that they did not, with
! the addition of $l50,000 of bonds already
issued and delivered to the county, exceed
y in the aggregate $4,000 per mile on the
whole length of the railroad. The road as
~ finally located is at, least 80 miles long;
the act would therefore allow an issue of
bonds to the amount of $500, 200 and the
y. $4,000 Of bonds, called the 6 Kuehn
I bonds,"H added to the aggregate of those in
possession of thelcounty, precisely reach
THAT limit; that thescapacty of the second
8 mortgage could be filed up though no ex-
changes whatever should be effected with
the county or other municipalities /; that
the company issued the" Kuehn bonds"
lreeiting on their face that they were Sc
cured by the (" second mortgage" and that
the State Treasurer added his certificate
to this effect on each of these bonds. To
these arguments the county replies that
h the holders of the" Kuehn bonds" were
compelled to notice the Jansen or second
mortgage" and the act of March 23d,
1858, and arrive at correct legal inter
probation of it at their peril. This is GER
3 tainly so. Neither the company nor the
State Treasurer could issue any bonds se-
cured by the second mortgage" except
such as are authorized by that act. 1t is
a well known rule in the English language
that when noun is used, not definite in
itself, we ascertain its meaning from the