Hedges v. Dixon County

• Decision Date: 01 January 1889
• Parties: HEDGES et al. v. DIXON COUNTY.
• Court: U.S. District Court — District of Nebraska

37 F. 304

HEDGES et al. v. DIXON COUNTY.

United States Circuit Court, D. Nebraska.

January, 1889

J. M Woolworth, for complainant.

A. J Poppleton, J. B. Barnes, and J. M. Thurston, for respondent.

BREWER J.

The facts in this case are these: In 1876, Dixon county, the defendant herein, issued $87,000 of its bonds as a donation to the Covington, Columbus & Black Hills Railroad Company. The amount of such issued exceeded 10 per cent. of the assessed value of the property of the county, by reason whereof it has been finally adjudged by the supreme court that the bonds were void. Dixon Co. v. Field, 111 U.S. 81, 4 S.Ct. 315. This bill is brought by the complainants, who own nearly all of the bonds thus issued praying that they may be scaled down to an amount equal to 10 per cent. of the assessed valuation of the property of the county at the time of the issue, and to that extent held as valid obligations of the county, and a decree entered against it therefor. The complainants offer to accept such reduced amount in satisfaction, and tender their bonds for cancellation on payment thereof. They also pray that the holders of the other bonds, when known, be brought before the court and impleaded in this bill, and given the same rights. To this bill the defendant demurs on the ground that it states no ground of action.

Conceding that the bonds, as they stand, are void, and that no recovery can be had thereon in a court of law, complainants insist that a court of equity has power to scale them down to an amount equal to that that the county might lawfully have issued, and enforce them when thus scaled down. It is said that the vice of this transaction is only in the matter of excess; that a court of equity may expunge the vice, and enforce the contract thus freed from taint. Counsel for complainants concedes that he has been unable to find any precedent for such a proceeding, and his confession of inability is satisfactory evidence that no such precedent exists; so that the question must be determined by reference to the general principles of law; and here it may be remarked that the difference between courts of law and those of equity is mainly one of forms and remedies, rather than in the matter of absolute rights and obligations. If a contract be pronounced absolutely void in a court of law, it must expect the same denunciation in a court of equity. Courts of equity like those of law, must accept contracts as they are made, and have no power to make contracts for parties. If the contracts which parties attempt to make are void because in defiance of some statute or common law, they are void alike in either court, and neither court can change a...