Dodgeville chronicle. [volume] (Dodgeville, Wis.) 1862-current, 1868-09-18

holders are to be cut off by the exercise of
the special power, the mortgage by which
it is done should refer to the act authoriz-
ing it, in plain, unequivocal terms. 1t is
a reasonable rule of Interpretation that
the Schuyler and Conan & Martin bond
holders are supposed to understand "that
if an act may be done under general
power, but if done under special power
a prescribed advantage or benefit will be
acquired; if the act is done without ref
erence to the special power, it will not be
attended with the prescribed benefit, but
will be presumed to be done under the gen.
eral power" As the Schuyler and Conan
& Martin mortgages might have been just
as well executed under the general power
set forth in the amended charter, and
make no reference to the special power
given by the tm0mortgage act, do not
think either of them is entitled to the pre-
scribed benefit of priority. So the JAMS
sen mortgage, being the earliest, is para
mount, unless otherwise determined by
the District Court of the United States,
in the foreclosure of the Conan & Martin
mortgage. l shall now examine these
proceedings.
Conan 4 Martin made Samuel D. Has
tings, Treasurer of the State, and successor
of Edward II. Jansen, one of the parties
to their bill of foreclosure 1t is objected
by the present plaintiff, Iowa county, that
1T was not made party, and that it was
not properly represented in the District
Court, or in any court by the merely maxi
ing of the State Treasurer in office at the
time the action was commenced, a party.
1t is true that the mortgage of record in
the State Treasurer office, would have
Informed Conan & Martin that the county
was at one time the owner of 100 bonds
issued by the company but these bonds
are negotiable as note of hand' by
their own terms. They might belong to
Iowa county at one time, and within "a
hours of that time might have found their
way into the great channels of commerce,
and been distributed among as many I'M
known owners, and Iowa county Invested
of its interest in all OF them. The inven-
ton of a railroad mortgage securing it
may be 500 or 1000 obligees or mortga
gees by one instrument, is worthy Of a
part of that admiration we bestow on the
machinery of the road ITSELF 1t IS com
prehensive, powerful, convenient, compass
ing a vast number of results, with the
least labor, condensing volumes of mort
cages into one simple instrument. The
railroad bond always informs its owner
where and who its trustee is, who holds
the legal title to any mortgage securing
such bond; but neither the trustee nor
any one else can tell who are the owners
of 1000 different bonds, continually chang
ing hands in the activity of trade. The
trustee or mortgage, therefore, represents
all the bondholders who may be secured
by railroad mortgage. 1t is sufficient
to make him a party. His action, or de-
fault in court of justice, is the action or
default Of all he represents. In the case
of De La Plaine VS.. Lewis, Governor, 10
Wis. Rep. p. 476, it appears that the city
of Madison, without any law authorizing
it, conveyed certain real estate to A. W.
Randall, Governor, and his successors in
office, in trust, to secure large number
and amount of bonds which the city had
sold and negotiated. The, court very
decided that the city of Madison
could not make Randall trustee against
his will, nor would Lewis, the successor
of Randall as Governor, succeed to the
trusts unless he, Lewis, accepted and acted
under the trust But it is the law, the
actof March %, '53,andnot theact of the par
ties, that constituted Edward Fl. Jansen
State Treasurer, and his successors in Of
flee, the payee of the bonds and the trustee
of the mortgage that secures them. Art.
6, sec. 3 of the Constitution declares that
" the posoers, duties and compensation of
the State Treasurer shall be prescribed by
law" The law imposes on the State
Treasurer the duty of acting in the capac-
ity OF mortgages and trustee on behalf of
certain bondholders, and Jansen and his
successors in office are as fully bound to
discharge the duties of this trustceshp as
to discharge any other duties imposed on
them by law. When his successor, Has,
tings, or Smith, accepted the Office of
State Treasurer, he accepted this trust
with all its powers and responsibilities.
The present plaintiff in its foreclosure
proceedings has adopted this view i'll
making VIM. E. Smith, the present State
Treasurer, a party. The binding force
of the decree in the District Court, would
have been in no manner increased nor
by making Iowa county a
party. No authorities, rightly under
stood, contradict this principle. - See
Shaw VS.. Norfolk r. R., 5 Grey, (Mass).
no. az * r
The complaint of Iowa county assumes
that the Schuyler mortgage was the pre-.
ferred mortgage under the special act
authorizing two mortgages; and the count.
sci for the county, therefore, INSISTS that
no valid decree could be rendered against
it in the District Court, at the suit Of
Conan & Martin, unless Schuyler was
made a party in that action. Schuyler
was not made a party, and therefore
there was no valid decree in that suit
foreclosing the county's rights as owner
of the company bonds secured by the
Jansen mortgage. do not agree with
the plaintiffs counsel, either in his pre-
misses or Conclusion. If the Schuyler
mortgage were the preferred mortgage,
could Schuyler's presence or absence in
court have closed the mouth of Iowa
county on this question If Schuyler
had been made party, and answered Co.
man & Martins bill, and had admitted or
averred in his answer that his mortgage
was not the preferred one, this answer
would not have bound the county, The
preference of the several mortgages was a
question of law to be determined by the
court, and the allegations or admissions
of Schuyler, by answer or otherwise, upon
questions of either fact or law, would not
h,o MI - H. L. 4