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amendment of 1902 changed the language as to the time when the assessed value should be taken; in other words, a person inquiring in regard to the bonds issued by the city in 1903 would be bound to know of the constitutional limitations contained in section 4 of article 13. He would then inquire whether or not any vote had ever been taken to authorize the bonds subsequent to the amendment of 1902. There could be only, upon this record, one answer to that question, and that would be "No"; that the election was held in November, 1901.

We think the case of Norton v. Brownsville, 129 U. S. 479, 9 Sup. Ct. 322, 32 L. Ed. 774, is decisive of this question. In delivering the opinion of the court in the case cited Chief Justice Fuller says:

"It is clear that the inhibition imposed by section 29 of the Constitution of 1870 operates directly upon the municipalities themselves, and is absolute and self-executing. These cases [referring to several cases cited] sufficiently illustrate the distinction between the operation of a constitutional limitation upon the power of the Legislature and of a constitutional inhibition upon the municipality itself. In the former case past legislative action is not necessarily affected, while in the latter it is annulled."

The amendment to the Constitution of 1902 requires that, before the 10 per cent. limit of indebtedness can be incurred, it must be authorized by a majority vote of the electors. The law under which the city took the vote in 1901, being chapter 53, p. 62, Sess. Laws S. D. 1899, required that a majority of the electors of such city should be determined by the vote cast for the mayor of the city at the last preceding election for such officer; while section 4 of article 13, as amended in 1902, and as such language has been construed by the Supreme Court of the United States, declared a majority of the electors should be a majority of those present and voting at the election. In the case of Norton v. Brownsville, supra, the Legislature of the state of Tennessee had passed a special act allowing the city of Brownsville to vote bonds, and the city had voted bonds. unanimously; but before the bonds were issued the people adopted a new Constitution, which, in addition to the former provisions authorizing the issue of such bonds, required a three-fourths majority in their favor. It was contended that, the vote being unanimous, the requirement of the Constitution was satisfied; that the act under which the bonds were voted was a private or special act, and therefore was taken out of the general rule as to repeals; that the Constitution repealed only what was repugnant, and left the balance in force; that under another provision of the Constitution, which declared that all laws not inconsistent with the Constitution should remain in force, only inconsistent provisions were repealed. But the Supreme Court held that the inhibition was upon the action of the municipalities, and, unlike inhibition or limitation upon Legislatures, must be strictly construed, and in that case, although bonds had been previously voted by unanimous vote, the court held them void for the reason that they had not been authorized in accordance with the provisions of the new Constitution, which only required a threefourths vote. We see no reason why the case cited does not rule the law in this case, and, when applied to the facts, it renders wholly

nugatory the vote taken in November, 1901, so far as said election. shall be invoked as authority to issue bonds in 1903. The following cases also sustain the view here expressed: Aspinwall v. Commissionrs of County of Daviess, 22 How. 364, 16 L. Ed. 296; Town of Concord v. Portsmouth Savings Bank, 92 U. S. 625, 23 L. Ed. 628; Wadsworth v. Supervisors, 102 U. S. 534, 26 L. Ed. 221; Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; Concord v. Robinson, 121 U. S. 165, 7 Sup. Ct. 937, 30 L. Ed. 885; Pearsall v. Great Northern Ry., 161 U. S. 646, 16 Sup. Ct. 705, 40 L. Ed. 838; Falconer v. Buffalo & J. R. Co., 69 N. Y. 491; Covington & L. R. Co. v. Kenton County Court, 12 B. Mon. 144; Fidelity Trust & Safety Vault Co. v. Lawrence Co., 92 Fed. 576, 34 C. C. Á. 553; Wagner v. Meety, 69 Mo. 150; State ex rel. Wilson v. Garroutte, 67 Mo. 445; List v. City of Wheeling, 7 W. Va. 501; Cumberland & O. R. Co. v. Barren County Court, 10 Bush, 604.

We now come to the submission of the question of issuing bonds to the voters of the city of Sioux Falls. The election in November, 1901, was held in pursuance to chapter 53, p. 62, Sess. Laws S. D. 1899. Section 1 of said chapter 53 provides:

"That there is hereby granted to cities of the first class the right and power to issue bonds for the purpose of constructing, equipping, maintaining and operating or purchasing a system of waterworks for the purpose of providing water for domestic uses."

Section 2 of the same chapter provides:

"The city council of any such city may, by resolution passed by a majority of the aldermen-elect at any regular meeting of such city council or special meeting called for that purpose, call a special election and submit the question of the issuance of such bonds to the electors thereof."

Said section further provides that such resolution shall set forth, among other things, the purposes for which they are to be issued. By reference to section 2 of the ordinance passed by the city in October, 1901, the following language is found:

"The question submitted to the legal voters of said city as provided in section 1 shall be as follows: Shall the city of Sioux Falls issue its bonds to the amount of $210,000 for the purpose of constructing, equipping, maintaining and operating or purchasing a system of waterworks for the uses and purposes of said city and for providing water for domestic uses?"

In the resolution calling the special election the following language is found:

"That a special election be held on the 5th day of November, A. D. 1901, for the purpose of submitting to the legal voters of the city of Sioux Falls, South Dakota, the question whether the said city of Sioux Falls shall issue its bonds for the purpose of constructing, equipping, maintaining and operating or purchasing a system of waterworks to provide water for domestic uses."

The notice of special election contained the following language: "That notice is hereby given that a special election will be held on Tuesday. November 5, 1901, for the purpose of submitting to the legal voters of the city of Sioux Falls, South Dakota, the question whether said city of Sioux Falls shall issue its bonds to the amount of $210,000, to run twenty years from the date of their issuance and to bear interest not to exceed 5% per annum; said bonds to be issued for the purpose of constructing, equipping, maintaining and operating or purchasing a system of waterworks to provide water for domestic uses."

It will be plainly seen that the city under the act of 1899 had the power to issue bonds, provided they complied with the constitutional requirements, for the purpose of constructing, equipping, maintaining and operating or purchasing a system of waterworks for the purpose of providing water for domestic uses. Manifestly, the city could not construct and maintain a system of waterworks and also purchase a system at the same time. The power conferred is in the alternative, but the question, as appears in the ordinance, resolution, and notice of special election, was submitted to the voters in the language of the law in the alternative. It thus results that no voter has had the privilege of voting upon the question as to whether he was in favor or not in favor of issuing bonds in the sum of $210,000 for constructing, equipping, and maintaining a system of waterworks. He might have been in favor of the construction of the waterworks system and against purchasing a system, or he might have been in favor of purchasing a system and against constructing one; but he could not vote for one without he voted for both, and the result is that he cannot be said to have voted upon either proposition.

The case of Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St. 374, 49 N. E. 335, is a case directly in point, and we agree thoroughly with the reasoning of the learned court in its opinion filed in that case, and we think we cannot do better than quote from the opinion in that case as follows:

"There is, we think, another fatal objection to this resolution. It declares the necessity for the issue and sale of the city's bonds for the purpose of the purchase and erection of waterworks, and provides for the submission of the question of so issuing and selling the bonds, at the election to be held under the resolution, for the purposes thus declared. The power conferred by the statute on the council is to issue and sell the bonds of the municipality for the erection or purchase of waterworks. The two purposes are entirely distinct. The purchase of waterworks necessarily implies that they have already been erected, and are a present existing property, the subject of sale and purchase; while the erection of waterworks can only have reference to their future construction. That a municipal corporation may own two plants, one acquired by purchase and another erected by it, or, after having acquired one in the former mode, may proceed to erect a new plant, is not questioned. But their acquisition by these two different methods requires different proceedings. And it is the policy of the statute that the proposition for each separate improvement shall stand on its own merits. unaided by combination with any other measure, and be so acted upon by the council in the first instance, and then, if adopted, be so submitted for approval by the electors that each may be voted upon as a separate measure, uninfluenced by combination with others. The reason is that the requisite majority of the council and of the electors may be in favor of one measure and against the other or against each; while by uniting them as one, and submitting them to be acted upon in that form, the members of council and the electors are required to vote for or against both propositions combined, or abstain from voting at all, and thus denied the right to express their will with respect to each. A resolution declaring the necessity for the issue and sale of municipal bonds for the purchase and erection of waterworks is not a resolution for either purpose separately, but for both purposes combined; nor is a vote in favor of issuing bonds for both purposes a vote in favor of either separately. And the attempt, in the proceedings subsequent to the resolution, to eliminate the declared purpose to issue bonds for the purchase of waterworks, and thereafter carry the measure to completion as one for the erection of waterworks only, does not obviate the objection. The subsequent proceedings must conform to the resolution. It cannot 131 F.-58

be altered or amended by them. A substantial departure from the resolution leaves the proceedings without foundation to support them. A resolution declaring a necessity for one purpose does not authorize proceedings for the accomplishment of another; nor does a resolution declaring a necessity for two or more purposes combined authorize proceedings for the accomplishment of any one of them separately."

The proposition stated in the language quoted seems to state the true rule, and in fact there seems to be no conflict of authority upon the proposition. The following cases may be cited in further support thereof: McBryde v. City of Montesano (Wash.) 34 Pac. 559; Supervisors of Fulton County v. Mississippi & Wabash R. R. Co., 21 Ill. 338; People v. County of Tazewell, 22 Ill. 147; Village of North Tonawanda v. Western Transportation Co., 1 Sheld. 371; Hensly v. City of Hamilton, 3 Ohio C. Ct. 201; Jones v. Hurlburt, 13 Neb. 125, 13 N. W. 5; Garrigus v. Board of Commissioners of Parke Co., 39 Ind. 66; Bronenberg v. Board of Commissioners of Madison County, 41 Ind. 502; Finney v. Lamb, 54 Ind. 1; Lewis v. Commissioners of Bourbon County, 12 Kan. 186; Springfield & Illinois South-Eastern Ry. Co. v. County Clerk of Wayne County, 74 Ill. 27; City of Leavenworth v. Wilson (Kan.) 76 Pac. 400.

The discussion of the proposition affecting the power of the city to incur indebtedness for the construction and operation of a system of waterworks could be further extended, but at the risk of making this opinion, already quite lengthy, more so. We believe that sufficient has been stated to present plainly the views of the court. It seems to us that the failure to vote upon the issuance of bonds under the amendment of 1902, the submission of the question of issuing the bonds in the alternative at the election of 1901, and the fact that the city of Sioux Falls, in 1903, was already indebted nearly 15 per cent. of the assessed valuation for 1902, shows an absolute want of power in the city to construct, operate, and maintain a system of waterworks of its own; it having, under the law, and the way the city proceeded, no power to incur an indebtedness therefor.

The result is that a perpetual injunction must issue against the threatened construction and operation of a system of waterworks by the city.

The counsel for the respective parties to this litigation have presented with marked diligence and eminent ability every argument which occurs to us that could lawfully be urged in support of the claims of their respective clients. The evidence, the arguments, and the citations of authority have been considered by the court, not without some study, deliberation, and reflection. For the reasons which have now been stated, the Constitution of the state of South Dakota and the law of the land leave us, in our opinion, no alternative but the announcement of the conclusion which has been reached. Fortunately the result which the law compels appears to be just and equitable. It entails no substantial additional loss or injury upon any of the parties to the controversy. The bond which was given by the water company when the preliminary injunction was issued secures to the city a restoration to its treasury of all the moneys it has expended in the construction of its contemplated works. The citizens of the municipality may be relieved from the imminent bur

den of an increase of taxation, already too heavy, and the complainant and the water company from the threatened destruction of a property and business lawfully acquired in the faith that the Constitution and the law would be obeyed.

UNITED STATES v. BREESE.

(District Court, W. D. North Carolina. July, 1904.)

1. NATIONAL BANKS-EMBEZZLEMENT BY OFFICERS OR AGENTS-ELEMENTS OF OFFENSE.

The crime of embezzlement from a national bank by an officer, clerk, or agent, within Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], involves two general elements: First, a breach of trust or duty with respect to the moneys, funds, or credits of the bank embezzled, which must have been lawfully in the custody or possession of the accused by virtue of his office or employment, although such possession need not have been exclusive of that of other officers, clerks, or agents; and, second, the wrongful appropriation of such moneys, funds, or credits to his own use, with intent to injure or defraud the association or others.

2. SAME ABSTRACTION BY OFFICER Or Agent.

Abstraction, under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], is the act of one who, being an officer, clerk, or agent of a national banking association, wrongfully takes or withdraws from it any of its moneys, funds, or credits, with intent to injure or defraud it, or some other person or company, and, without its knowledge and consent, or that of its board of directors, converts them to the use of himself, or of some person or company other than the bank. No previous lawful possession is necessary to constitute the crime, nor does it matter in what manner it is accomplished. 3. SAME-MISAPPLICATION OF FUNDS BY OFFICER OR AGENT.

Willful misapplication of the moneys, funds, or credits of a national bank, within Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], consists in their misapplication by an officer, clerk, or agent of the bank, made willfully and wrongfully, and with intent to injure or defraud the association or some other person or company, and their conversion to his own use, or to the use of some one other than the bank. No previous lawful possession is necessary to constitute the crime.

4. SAME-OFFENSES INCLUDED IN EMBEZZLEMENT.

The crime of embezzlement by an officer, clerk, or agent of a national bank, under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], necessarily includes the offenses of abstraction and willful misappropriation, but either of the latter offenses may be committed without embezzlement.

5. SAME-INTENT TO INjure or Defraud.

The intent to injure or defraud, made by Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], an element of the offenses of embezzlement, abstraction, or willful misapplication of funds by an officer, clerk, or agent of a national bank, need not necessarily have been the object or purpose with which the act was done; but it is sufficient if the natural and necessary effect of the act was to injure or defraud the bank or others, and it was willfully and intentionally done.

6. CRIMINAL LAW-BURDEN AND SUFFICIENCY OF PROOF.

While the burden of proof rests upon the prosecution in a criminal case from the beginning to the end of the trial, it is successfully met whenever, from all the evidence introduced in the case, and taking into consideration the presumption of innocence in favor of the accused, the jury are satisfied of his guilt beyond a reasonable doubt.

7. SAME EVIDENCE OF INTENT-OTHER TRANSACTIONS.

On the trial of an officer of a national bank for embezzlement, abstraction, and misapplication of funds, under Rev. St. § 5209 [U. S. Comp. St.

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