Page:Federal Reporter, 1st Series, Volume 4.djvu/397

 ■WADSWORTft V. ST. CBOXS OOUNTY. S8S �In this case the rote of the people, under the law, oonferred the power on the board to make the contract, but did not constitute the oon tract itself. That power Was still left with the board. It is claimed by complainant's counsel, in hift argument upon the demurrer, (see page 11, printed brief,) that it was held by this court, in WadsiDortk v. County of Eau C^ire, that the complaint, which set up substantially the same facts as this, presented a proper case for equitablft relief, I do not bo understand the decision of the courtl Indeed, the court had no occasion to decide that question. That -was an. action àt law to recover damages by this same plaintiff against the county of Eau Claire, which had voted aid under the saine statute, and the supervisors had refused to issue the bonds. A demurrer was interposed, and the case argued at the June tenn, 1876, before Judges Davis and Hopkins, and the demurrer sustained. There was no opinion filed, and the record does not disclose the ground of the decision. But it would appear, from the briefs of counsel, that th© case was mainly argued and submitted upon the question as to whether or not the vote of the people to extend aid constituted a contract, in connection with the statute, in the absence of any resolution of the board authorizing the issue of the bonds. In sustaining the demurrer, the eOurt necessarily decided that the complaint did not set up a cause of action. How the court might have held if the complaint prayed for equitable relief we can best judge from what was held afterwards, when the same case came. before the court in that form. If there was à contract with the railroad Com- pany to issue the bonds, and a breach of that contract, as there assuredly was, if any such contract existed, by a failure to issue them, so that an action would lie to enforce a specifi» performance, it is difficult to see why an action at law will not lie for damages. After the demurrer in the action at law was sustainedj the case was discontinued, and an action like this commenced, in Deeember, 1876, on the ehancery' sida, to compel a specifie performance of the contract. Tha same plea was put in as here. The case was argued before his honor Judge Drummond, at the La Crosse term, in Sep- ����