Mills v. Town of Jefferson

Cole, J. It was not seriously contended on the argumejit, that the denial in the answer was such as to call for proof of the fact that the supervisors, before the delivery of the bonds, received from the company the security prescribed in the 5th section of chap. 39, Private Laws of 1857, p. 64, being the act under which the bonds of the town were issued. It was distinctly alleged in the complaint that the railroad company gave security, to the satisfaction of the supervisors, that the money arising from the sale of the bonds should be faithfully applied to the construction of the road. In respect to this and many other allegations of the complaint, the town authorities [54] answer tbat they have no knowledge or information sufficient to form a belief, and therefore deny the same. It is very manifest that this is an evasive answer in respect to that allegation. The officers of the town have full control of its records, papers, &c., and they have therefore every means of knowing whether the company gave the required security or not. The answer should have been positive upon the point, if it was intended to put in issue the fact of taking the security. The means of knowledge are within the reach of the officers of the town. Hence it is mere evasion for them to say in respect to such an allegation that they have no knowlege or information sufficient to form a belief whether the security was given or not, and therefore deny the same. But it is said that the finding of the court is insufficient to support the judgment, because the court does not expressly find as a fact that this security was given. The court found that the bonds and coupons mentioned in the complaint were made, issued and delivered by the town at the time and in the manner set forth in the complaint. Now as the complaint alleged that the security was given, and this fact is not traversed in the answer, we think no more specific finding was necessary in that particular. Further, it is insisted that it appears from the case that at the time the bonds and coupons were issued by the town, the law authorizing the town to execute and deliver them was not in force, for the reason that no sufficient publication of the law had then been made. This act was passed and approved February 23d, 1857. Private Laws of 1857, supra. The 8th section provided that the act should be published in one newspaper printed in Jefferson county, and should be in force from and after its passage. The evidence shows, and the court finds, that the law was published in a newspaper called ‘‘The Jeffersonian,” (published in the county of Jefferson), on the 5th day of March, 1857, which was before the town authorities attempted to act under it; and it appears that this was the only publica [55] tion made until the bound volume of private laws was published on the 20th of July, 1857, which contained the law. The subscription to the stock of the railroad company was made, and the bonds executed and delivered, on the first of May, 1857. The question is, had there not been a sufficient publication of the law, so as to make it operative, when the town officers attempted to act under its provisions ? We think the question must be answered in the affirmative. Under the decisions of this court, the law was a general one, and would not take effect until published in an authorized maimer. But, as already observed, the act itself prescribed the manner in which the law should be published, and as a matter of fact it was published in strict conformity to the legislative requirement. The legislature prescribed that the law should be published in one newspaper, printed in Jefferson county, and that it should take effect from and after its passage. The publication, then, which was made, was an authorized publication; it was one made in pursuance of law. It was not only published in the precise manner the legislature prescribed, but the publication made was unquestionably the best calculated to bring an early knowledge of the law home to the locality and people most concerned in and affected by its provisions. The objection to the publication which was made is, that the law was not likewise published in the newspaper at Madison which usually prints the statutes. In the absence of other directions by the legislature, the law would doubtless have been published in that way. But to say that the legislature was not competent to provide a a different manner of publication, is to deny its power over the subject of the publication of the laws. We therefore see no sufficient ground for holding that the publication in question did not meet the requirements of the constitution. The suit was brought to recover the amount due upon coupons annexed to certain bonds issued by the town, which bonds belong to the respondent The coupons are in this form: “$10.” [56] “ The town of Jefferson will pay Ten Dollars on the first'day of February, 1859, at the office of the Town Treasurer in said town, on presentation hereof, being the interest due that day on the bond of said town, No. 11, issued to the Wisconsin Central Eailroad Company. By order of” &c., &c. The circuit court gaye interest on these various coupons from the time they became due and payable; and it is contended that this was erroneous. I confess I have had no little difficulty upon this point, and I am not now entirely clear as to what rule should be adopted. So far as I am aware, the question is anew one in this court, and we are not embarrassed by precedents. But the weight of authority seems to be against allowing interest upon interest, except in cases of special agreements to that effect. On the other hand, there are a number of cases which hold that where there is an express agreement in a note or bond to pay interest at a specified time, as annually, or semi-annually, interest upon the interest from the time it became due may be recovered. Most of the cases upon this question will be found in the note to Selleck v. French, 1 Amer. Lead. Cases (2d ed.), p. 538-9; see also Stokeley v. Thompson, 34 Penn. St., 210; Leonard v. Adm'r of Villars, 23 Ill., 377; Ferry v. Ferry, 2 Cush., 92; where the courts say that interest upon interest cannot be recovered: and contra, Gilpcke et al. v. The City of Dubuque, 1 Wallace, 175-206; Hollingsworth v. The City of Detroit, 3 McLean, 472; Austin v. Imus, 23 Vermont, 286; O'Neall v. Sims, 1 Strobh. Law, 115. On the whole, the cases last cited seem to me to rest upon the sounder principle, and to be sustained by the better reason. . For when a person agrees to pay interest at a specified time, and fails to keep his undertaking, why should he not be compelled to pay interest on interest from the time he should have made the payment ? If he undertakes to pay in a sum of money at a given time to the owner, and makes default, the law allows interest on the sum wrongfully withheld from the time he should have made such payment. The debtor withholds from the creditor his [57] due as much, when be fails to paj interest according to bis contract as wben be makes default in tbe payment of tbe principal. It is not illegal to stipulate for tbe payment of compound interest, or that interest as it becomes due shall be converted into principal and bear interest. Kellogg v. Hickok, 1 Wend., 521. Interest payable annually or semi-annually may be demanded and recovered as it becomes due, according to tbe authorities. A note given for it may bear interest. Why then should not tbe debtor, wben be fails to pay interest according to bis engagement, pay interest on tbe sum justly and equitably due ? Tbe courts which deny that interest may be recovered upon interest from tbe time it becomes due, generally place their decisions upon grounds of public policy, and say that to permit such a recovery would tend to usury and oppression, and encourage negligence on tbe part of creditors in collecting their interest, and that debt would accumulate beyond all ordinary calculation or endurance. There may be some force in these suggestions, and yet they fail to convince me that we should not adhere to an important principle in law and morals, of bolding men to abide by their contracts. Besides, if a debtor fails to meet bis engagement, we must assume that it is not convenient for him to pay bis debt, or that it will be advantageous for him to retain tbe money. If tbe rule that interest cannot legally be recovered on interest due be adopted to render tbe creditor vigilant, this very vigilance will frequently embarrass a debtor who needs a little indulgence. If tbe debtor has tbe means of discharging bis obligation, be can do so, and if be has not, or prefers to retain bis money, let him be subject to tbe general rule which requires tbe payment of interest upon a debt equitably and justly due. Tbe majority of tbe court are therefore disposed to approve of tbe ruling of tbe circuit court in allowing interest upon tbe coupons after they became due. By the Court. — Tbe judgment of tbe cfrcuit court is affirmed.