text:
Peugh v. Davis (96 U.S. 332)/Opinion of the Court

This is a suit in equity to redeem certain property, consisting of two squares of land in the city of Washington, from an alleged mortgage of the complainant. The facts, out of which it arises, are briefly these: In March, 1857, the complainant, Samuel A. Peugh, borrowed from the defendant, Henry S. Davis, the sum of $2,000, payable in sixty days, with interest at the rate of three and three-fourths per cent a month, and executed as security for its payment a deed of the two squares. This deed was absolute in form, purporting to be made upon a sale of the property for the consideration of the $2,000, and contained a special covenant against the acts of the grantor and parties claiming under him. This loan was paid at its maturity, and the deed returned to the grantor.

In May following, the complainant borrowed another sum from the defendant, amounting to $1,500, payable in sixty days, with the same rate of interest, and as security for its payment redelivered to him the same deed. Upon this sum the interest was paid up to the 6th of September following. The principal not being paid, the defendant placed the deed on record on the 7th of that month. In January, 1858, a party claiming the squares under a tax title brought two suits in ejectment for their recovery. The defendant thereupon demanded payment of his loan, as he had previously done, but without success.

On the 9th of February following, the complainant obtained from the defendant the further sum of $500, and thereupon executed to him an instrument under seal, which recited that he had previously sold and conveyed to the defendant the squares in question; that the sale and conveyance were made with the assurance and promise of a good and indefeasible title in fee-simple; and that the title was now disputed. It contained a general covenant warranting the title against all parties, and a special covenant to pay and refund to the defendant the costs and expenses, including the consideration of the deed, to which he might be subjected by reason of any claim or litigation on account of the premises. Accompanying this instrument, and bearing the same date, the complainant gave the defendant a receipt for $2,000, purporting to be in full for the purchase of the land.

The question presented for determination is whether these instruments, taken in connection with the testimony of the parties, had the effect of releasing the complainant's equity of redemption. It is insisted by him that the $500 advanced at the time was an additional loan, and that the redelivered deed was security for the $2,000, as it had previously been for the $1,500. It is claimed by the defendant that this money was paid for a release of the equity of redemption which the complainant offered to sell for that sum, and at the same time to warrant the title of the property and indemnify the defendant against loss from the then pending litigation.

It is an established doctrine that a court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as security for a loan of money. That court looks beyond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it will give effect to the actual contract of the parties. As the equity, upon which the court acts in such cases, arises from the real character of the transaction, any evidence, written or oral, tending to show this is admissible. The rule which excludes parol testimony to contradict or vary a written instrument has reference to the language used by the parties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the object of the parties in executing and receiving the instrument. Thus, it may be shown that a deed was made to defraud creditors, or to give a preference, or to secure a loan, or for any other object not apparent on its face. The object of parties in such cases will be considered by a court of equity: it constitutes a ground for the exercise of its jurisdiction, which will always be asserted to prevent fraud or oppression, and to promote justice. Hughes v. Edwards, 9 Wheat. 489; Russell v. Southard, 12 How. 139; Taylor v. Luther, 2 Sumn. 228; Pierce v. Robinson, 13 Cal. 116.

It is also an established doctrine that an equity of redemption is inseparably connected with a mortgage; that is to say, so long as the instrument is one of security, the borrower has in a court of equity a right to redeem the property upon payment of the loan. This right cannot be waived or abandoned by any stipulation of the parties made at the time, even if embodied in the mortgage. This is a doctrine from which a court of equity never deviates. Its maintenance is deemed essential to the protection of the debtor, who, under pressing necessities, will often submit to ruinous conditions, expecting or hoping to be able to repay the loan at its maturity, and thus prevent the conditions from being enforced and the property sacrificed.

A subsequent release of the equity of redemption may undoubtedly be made to the mortgagee. There is nothing in the policy of the law which forbids the transfer to him of the debtor's interest. The transaction will, however, be closely scrutinized, so as to prevent any oppression of the debtor. Especially is this necessary, as was said on one occasion by this court, when the creditor has shown himself ready and skilful to take advantage of the necessities of the borrower. Russell v. Southard, supra. Without citing the authorities, it may be stated as conclusions from them, that a release to the mortgagee will not be inferred from equivocal circumstances and loose expressions. It must appear by a writing importing in terms a transfer of the mortgagor's interest, or such facts must be shown as will operate to estop him from asserting any interest in the premises. The release must also be for an adequate consideration; that is to say, it must be for a consideration which would be deemed reasonable if the transaction were between other parties dealing in similar property in its vicinity. Any marked undervaluation of the property in the price paid will vitiate the proceeding.

If, now, we apply these views to the question before us, it will not be difficult of solution. It is admitted that the deed of the complainant was executed as security for the loan obtained by him from the defendant. It is, therefore, to be treated as a mortgage, as much so as if it contained a condition that the estate should revert to the grantor upon payment of the loan. There is no satisfactory evidence that the equity of redemption was ever released. The testimony of the parties is directly in conflict, both being equally positive,-the one, that the advance of $500 in February, 1858, was an additional loan; and the other, that it was made in purchase of the mortgagor's interest in the property. The testimony of the defendant with reference to other matters connected with the loan is, in several essential particulars, successfully contradicted. His denial of having received the instalments of interest prior to September, 1857, and his hesitation when paid checks for the amounts with his indorsement were produced, show that his recollection cannot always be trusted.

Aside from the defective recollection of the creditor, there are several circumstances tending to support the statement of the mortgagor. One of them is that the value of the property at the time of the alleged release was greatly in excess of the amount previously secured with the additional $500. Several witnesses resident at the time in Washington, dealers in real property, and familiar with that in controversy and similar property in its vicinity, place its value at treble that amount. Some of them place a still higher estimate upon it. It is not in accordance with the usual course of parties, when no fraud is practised upon them, and they are free in their action, to surrender their interest in property at a price so manifestly inadequate. The tax title existed when the deed was executed, and it was not then considered of any validity. The experienced searcher who examined the records pronounced it worthless, and so it subsequently proved.

Another circumstance corroborative of the statement of the mortgagor is, that he retained possession of the property after the time of the alleged release, enclosed it, and either cultivated it or let it for cultivation, until the enclosure was destroyed by soldiers at the commencement of the war in 1861. Subsequently he leased one of the squares, and the tenant erected a building upon it. The defendant did not enter into possession until 1865. These acts of the mortgagor justify the conclusion that he never supposed that his interest in the property was gone, whatever the mortgagee may have thought. Parties do not usually enclose and cultivate property in which they have no interest.

The instrument executed on the 9th of February, 1858, and the accompanying receipt, upon which the defendant chiefly relies, do not change the original character of the transaction. That instrument contains only a general warranty of the title conveyed by the original deed, with a special covenant to indemnify the grantee against loss from the then pending litigation. It recites that the deed was executed upon a contract of sale contrary to the admitted fact that it was given as security for a loan. The receipt of the $2,000, purporting to be the purchase-money for the premises, is to be construed with the instrument, and taken as having reference to the consideration upon which the deed had been executed. That being absolute in terms, purporting on its face to be made upon a sale of the property, the other papers referring to it were drawn so as to conform with those terms. They are no more conclusive of any actual sale of the mortgagor's interest than the original deed. The absence in the instrument of a formal transfer of that interest leads to the conclusion that no such transfer was intended.

We are of opinion that the complainant never conveyed his interest in the property in controversy except as security for the loan, and that his deed is a subsisting security. He has, therefore, a right to redeem the property from the mortgage. In estimating the amount due upon the loan, interest only at the rate of six per cent per annum will be allowed. The extortionate interest stipulated was forbidden by statute, and would, in a short period, have devoured the whole estate. The defendant should be charged with a reasonable sum for the use and occupation of the premises from the time he took possession in 1865, and allowed for the taxes paid and other necessary expenses incurred by him.

The decree of the Supreme Court of the District must be reversed, and the cause remanded for further proceedings, in accordance with this opinion; and it is

So ordered.


text: Talk:Peugh v. Davis (96 U.S. 332)/Opinion of the Court

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text:
Dial v. Reynolds

APPEAL from the Circuit Court of the United States for the Eastern District of Tennessee.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. J. M. Thornburgh for the appellant.

There was no opposing counsel.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Dial v. Reynolds


text: Talk:Dial v. Reynolds

title: Talk:Dial v. Reynolds


text:
Dial v. Reynolds/Opinion of the Court

The original bill was filed by Lyford, as trustee, and Staatsman. Reynolds demurred. Subsequently Lyford resigned his place as such trustee, and Dial was appointed in his stead, pursuant to a law of Tennessee. Dial and Staatsman filed an amended and supplemental bill. To this bill Reynolds also demurred. Dial and Staatsman filed another amended bill, and Reynolds again demurred. All the bills set forth substantially the same case. The facts alleged may be briefly stated. A deed of trust was executed by Cooper to Lyford, to secure certain liabilities of the grantor to Staatsman, and for other purposes. Reynolds asserted title in himself to the property covered by the deed. He claimed adversely to all the other parties. He had before sued another party for the premises. The case was brought to this court for final determination. It was decided against him. He thereafter commenced another action of ejectment in the proper State court, which was still pending. The bill seeks to foreclose the deed of trust, to quiet the title of the trustee, to remove the cloud cast upon it by Reynolds, and to enjoin him finally from further prosecuting his pending action of ejectment.

The Circuit Court sustained the demurrers and dismissed the bills. The complainants appealed to this court. The case was submitted here without oral argument. The counsel for the appellants has filed a brief. None has been filed upon the other side.

There are two objections to these bills:--

1. The gravamen of what is desired as to Reynolds is an injunction to prevent his proceeding at law in the State court. Without this, all else is of no account. Any other remedy would be unavailing. Such an injunction, except under the Bankrupt Act, no court of the United States can grant. With this exception, it is expressly forbidden by law. Act of March 2, 1793, sect. 5 (1 Stat. 334); Rev. Stat., sect. 720; Diggs v. Wolcott, 4 Cranch, 179; Peck et al. v. Jenness et al., 7 How. 612; Watson v. Jones, 13 Wall. 679.

2. It is well settled that in a foreclosure proceeding the complainant cannot make a person who claims adversely to both the mortgagor and mortgagee a party, and litigate and settle his rights in that case. Barbour, Parties in Equity, 493, and the cases there cited.

This case was one of fatal misjoinder and multifariousness, and the proper course for Reynolds was to demur. Story, Eq. Pl., sect. 284 b.

The complainants not having amended by striking out so much of the bills as related to him and his claim, it was proper for the court to sustain the demurrers and dismiss the bills.

Decree affirmed.

title: Dial v. Reynolds/Opinion of the Court


text: Talk:Dial v. Reynolds/Opinion of the Court


text:
Hitchcock v. Galveston

ERROR to the Circuit Court of the United States for the Eastern District of Texas.

The judgment in the court below having been given upon a demurrer to the plaintiffs' petition, there is no controversy about the facts.

The city of Galveston, proposing to improve some of its sidewalks, entered into a contract with Dexter G. Hitchcock and James W. Byrnes, the plaintiffs, by which they agreed to furnish the materials and in whole or in part to do the work necessary for the improvement. The work consisted of filling, grading, curbing, and paving. By ordinance, it had been determined that the sidewalks should be paved with one or the other of the following-described materials: 'Asphalt, hard bricks laid in a bed of Portland cement and properly grouted, concrete made of Portland cement mixed with other proper materials, or with tile or stone laid in a bed of Portland cement.' The ordinance contains a provision that the 'owners of lots or parts of lots who represent in each block a majority of the feet fronting or abutting upon any sidewalk of the same which is to be paved' shall have the 'right. . . to select and designate which of the said materials they prefer and desire to be used in the construction of the pavement to be laid down on the said designated sidewalk,' reserving, however, to the chairman of the committee on streets and alleys the right to determine the material to be used in case the lot-owners failed to make a selection. Of course, grading, filling, and curbing were a necessary preparation to any of these different modes of paving; and the city ordinances made provision for these several kinds of preparatory work, as well as for the paving. It was in pursuance of these ordinances that the contract was made. By it, the city engaged, in the first instance, to pay to the plaintiffs the sum of $1.75, in bonds of the city, styled 'Galveston city bonds for sidewalk improvements,' to be taken at par, for every square yard of pavement laid down by them upon certain designated sidewalks, the pavement to be composed of asphalt in bulk, rolled solid to the thickness of three inches; provided, however, the plaintiffs 'obtain the written consent of the owners of the property fronting or abutting upon the said sidewalks to the laying down of the said pavement, which written consent or selection of said pavement shall be filed in the mayor's office with the city clerk.'

Following this conditional arrangement for an asphalt pavement, where such a pavement might be selected, the parties by the contract entered into other engagements. The city undertook to pay to the plaintiffs in the said bonds, to be taken at par, the sum of $1.25 for every cubic yard of filling necessary to be done 'upon any and all of the said sidewalks preparatory to the laying of any pavement thereon,' the above price to include not only the filling, but the grading, tamping, and rolling.

The contract next contained an engagement of the city to pay to the plaintiffs in the said bonds, to be taken at par, forty-five cents for each square foot of wooden curbing (to be composed or made of three-inch cypress) 'that might be needed or used in filling up and grading the said sidewalks preparatory to putting down the said pavement, or any other.'

The contract also bound the city to pay the plaintiffs for wooden curbing needed or used for putting down the pavements that were to be only six feet in width. In consideration of all these promises of the city, the plaintiffs bound themselves to lay down and fabricate the said pavement in the manner and style above set forth and stipulated; and they also bound themselves to fill, grade, tamp, roll, and curb the said sidewalks as above set forth and stipulated, and to receive in payment for all the said work the respective prices above stated in Galveston city bonds for sidewalk improvement at par. They further bound themselves to commence the work within twenty days, and to finish it without unnecessary delay.

Accordingly, they proceeded to fulfil their engagements. They made contracts for labor and materials, performed a large amount of work, completed the curbing and filling of some sidewalks, and were going on in earest to finish the entire work, when, at the expiration of forty-six days, they were compelled by force and by authority of the city to abandon their work without any fault of their own. On the 20th of April, 1874, the city council declared the contract null and void, and directed the mayor to notify the contractors to that effect, which he did, two days thereafter. Hence the present suit to recover damages for the breach of the contract.

The demurrer to the petition was sustained, and judgment rendered for the defendants. The plaintiffs sued out this writ of error.

Mr. F. Charles Hume and Mr. S. S. Henkle for the plaintiffs in error.

Where a municipal corporation has power to do certain work it may order its agents, for it and in its name, to enter into the requisite contract, which will be binding upon it. Burrill v. The City of Boston, 2 Cliff. 590; Ford v. Williams, 21 How. 287; San Antonio v. Lewis, 9 Tex. 69; Bank of Columbia v. Patterson, 7 Cranch, 299; Dunn v. Rector of St. Andrew's Church, 14 Johns. (N. Y.) 118; Glidden v. Unity, 33 N. H. 577; 2 Kent, Com. 290; Angell & Ames, Corp., sect. 212; Fitton v. Hamilton City, 6 Nev. 196; Smiley v. Mayor, &c., 6 Heisk. (Tenn.) 604; Story, Contr., sect. 312; Hoyt v. Thompson's Executor, 19 N. Y. 207; Abby v. Billups, 35 Miss. 618; Alton v. Mulledy, 21 Ill. 76; Dillon, Mun. Corp., sects. 132, 374; Story, Agency, sect. 54; Clark v. ''Mayor, &c. of Washington'', 12 Wheat. 40; Fanning v. Gregorie et al., 16 How. 524; Sharp v. ''Mayor, &c. of New York'', 25 How. (N. Y.) Pr. 388; Dickerson v. Peters, 71 Pa. St. 53; Northern Central Railway Co. v. ''Mayor, &c. of Baltimore'', 21 Md. 93.

The absence of authority to issue the bonds does not impair the validity and obligation of the contract. They are merely evidences of indebtedness; and, if they are absolutely void, that indebtedness remains, and the city is liable upon the contract, and for damages occasioned by the breach of it. State Bank v. Leavitt, 14 N. Y. 162; Leavitt v. Curtis et al., 15 id. 9; Oneida Bank v. Ontario Bank, 21 Id. 490; Argenti v. City of San Francisco, 16 Cal. 255; Maher v. Chicago, 38 Ill. 266; Chicago v. The People, 48 id. 416.

By the contract, the city intended to incur a direct liability to the contractor, and for payments made reimburse itself by assessments upon, and in the event of their non-payment by sales of, the lots bordering upon the streets improved. Where, as in this case, there is no express limitation upon the power of the city, such a contract is valid. Allen v. City of Janesville, 35 Wis. 403; Forltz v. Cincinnati, 2 Handy (Ohio), 261; Sleeper v. Bullen, 6 Kan. 300; Maher v. Chicago, 38 Ill. 266; Chicago v. The People, 48 id. 416; Louisville v. Hyatt, 5 B. Mon. (Ky.) 199; Kearney v. City of Covington, 1 Metc. (Ky.) 339; Swift v. Williamsburgh, 24 Barb. (N. Y.) 427.

The city having so contracted, and failed or refused to make such assessments and collections with due diligence and pay the contractor, is liable to suit. Baldwin v. Oswego, 1 Abb. (N.Y.) App. Dec. 62; Cummings v. Brooklyn, 11 Paige (N. Y.), 596; Allen v. City of Janesville, Fortz v. Cincinnati, Sleeper v. Bullen, Louisville v. Hyatt, Kearney v. Covington, Swift v. Williamsburgh, and Argenti v. City of San Francisco, supra.

The provision that the council shall not borrow for general purposes more than $50,000 has no bearing whatever upon this contract for special improvements. Cummings v. Brooklyn, Baldwin v. Oswego, Allen v. City of Janesville, and Argenti v. City of San Francisco, supra.

Mr. W. P. Ballinger and Mr. George Flournoy, contra.

The city of Galveston had no express authority to make the contract in question, or to issue bonds in payment of the work done thereunder, and none can be implied from their general powers. Police Jury v. Britton, 15 Wall. 566; The Mayor v. Ray, 19 id. 468; Williams v. Davidson, 43 Tex. 1; Dillon, Mun. Corp., sect. 393. The contract to pay in such bonds for improvements of that description was therefore void. Union Pacific Railroad v. Lincoln County, 3 Dill. 300; State v. Swift, 11 Nev. 167; Thomas v. Port Huron, 27 Mich. 320; Lucas et al. v. San Francisco, 7 Cal. 463; Roeck v. Newark, 33 N. J. L. 129; New Albany v. Sweeney, 13 Ind. 245; Johnson v. Indianapolis, 16 id. 227; McCullough v. Brooklyn, 23 Wend. (N. Y.) 458; Lake v. Trustees of Williamsburgh, 4 Den. (N. Y.) 520; Hunt v. Utica, 18 N. Y. 442; Swift v. Williamsburgh, 24 Barb. (N. Y.) 427; Baldwin v. Oswego, 1 Abb. (N. Y.) App. Dec. 62; Hale v. Kenosha, 29 Wis. 599; Bridgeport v. New York & New Haven Railroad Co., 36 Conn. 255; Alexander et al. v. ''The Mayor, &c. of Baltimore, 5 Gill (Md.), 383; Lansing v. Lansing'', 25 Mich. 207; Ruppert et al. v. ''The Mayor, &c. of Baltimore, 23 Md. 184; Annapolis v. Harwood'', 32 id. 471; Fairfield v. Ratcliff, 20 Iowa, 396; Head v. Providence Insurance Co., 2 Cranch, 127; Zottman v. San Francisco, 20 Cal. 96; Nicholson Paving Co. v. Painter, 35 id. 699; Whitehall v. Pulaski County, 2 Dill. 249; Hall & Argalls v. County of Marshall, 12 Iowa, 142; Regents' University v. Hart, 7 Minn. 61; King v. Brooklyn, 42 Barb. (N. Y.) 627; Richardson v. Brooklyn, 34 id. 569; Dillion, Mun. Corp., sects. 55, 610, 653, 654.

The contract, if valid, will impose upon the city a liability exceeding $50,000, and is therefore in violation of that provision in the charter of the city which prohibits the council from borrowing for general purposes more than that sum. Rogers v. Burlington, 3 Wall. 654; Middleton v. Alleghany County, 37 Pa. St. 237; McPherson v. Foster, 43 Iowa, 48; State v. Strader, 25 Ohio St. 527.

The contract sued on is not valid, because, 1. The city council could not delegate the power to mayor and the chairman of the committee on streets and alleys to make it; 2. The said mayor, &c., still further delegated the power to determine the paving of said sidewalks to the owners of the lots thereon. Dillon, Mun. Corp., sects. 60, 567, 618, 649, and notes; Lyon v. Jerome, 26 Wend. (N. Y.) 484; Danforth v. Paterson, 34 N. J. L. 163; State v. City of New York, 3 Duer (N. Y.), 131; Goszler v. Georgetown, 6 Wheat. 593; Hyde v. Joyes, 4 Bush (Ky.) 468; Mayor of Baltimore v. Porter, 18 Md. 284; Oakland v. Carpentier, 13 Cal. 540; Ruggles v. Collier, 43 Mo. 353; East St. Louis v. Wehrung, 50 Ill. 28; Day v. Green, 4 Cush. (Mass.) 433; Coffin v. Nantucket, 5 id. 269; Ruggles v. Nantucket, 11 id. 433; Ex parte Winsor, 3 Story, 411; Scofield v. Lansing, 17 Mich. 437; Schenley v. Alleghany, 36 Pa. St. 62.

It results from the want of authority to bind the city by the contract sued on that there is no liability for the filling and curbing which it is alleged has been performed by the plaintiffs. Cooley, Const. Lim. 196; Bonesteel v. Mayor of New York, 22 N. Y. 162; McDonald v. Mayor of New York, 4 Thomp. & C. (N. Y.) 177, and cases cited; Murphy v. Louisville, 9 Bush (Ky.), 189; Craycraft v. Selvage, 10 id. 696; Reilly v. Philadelphia, 60 Pa. St. 467.

The contract was subject to the condition that the lot-owners fronting or abutting upon the sidewalks should select the kind of pavement, and that their written consent to laying it down should be obtained by the plaintiffs. The pleadings do not aver the performance of this condition, and without it the contract, even if authorized by the charter, was not binding upon the city.

MR. JUSTICE STRONG, after stating the case, delivered the opinion of the court.

title: Hitchcock v. Galveston


text: Talk:Hitchcock v. Galveston

title: Talk:Hitchcock v. Galveston


text:
Hitchcock v. Galveston/Opinion of the Court

The demurrer to the plaintiffs' petition raises several questions, all relating to the validity or construction of the agreement between the parties. These questions were not all considered by the Circuit Court, but, as we are of opinion that court erred in giving judgment for the defendant, we cannot overlook any consideration that could justify such a judgment.

It is contended, on behalf of the defendants, that the city of Galveston had no power given to it by law to make the contract which was made, or bind itself to pay with the bonds described, for sidewalk improvements. The contract was made on behalf of the city by the mayor and the chairman of the committee on streets and alleys, who had been authorized and directed by ordinance 'to enter into and make contract or contracts with proper and responsible parties to fill up, grade, curb, and pave the said sidewalks' (those designated in the ordinance and mentioned in the contract); and, as the petition of the plaintiffs averred, it was ratified and approved by the city council as the act and deed of the defendant. The authority of the council is found in the charter of the city. The first section of tit. 9, art. 1, of the charter declares that the city council shall be invested with full power and authority to grade, shell, repair, pave, or otherwise improve any avenue, street, or alley, or any portion thereof, within the limits of said city, whenever by a vote of two-thirds of the aldermen present they may deem such improvement to be for the public interest. And sect. 8, art. 3, tit. 4, confers upon the city council power 'to establish, erect, construct, regulate, and keep in repair bridges, culverts and sewers, sidewalks and crossways, and to regulate the construction and use of the same;' and the section adds, that 'the cost of the construction of sidewalks shall be defrayed by the owners of the lot, or part of lot or block fronting on the sidewalks, and the cost of any sidewalk constructed by the city shall be collected, if necessary, by the sale of the lot, or part of lot or block on which it fronts, together with the cost of collection, in such a manner as the city council may, by ordinance, provide; and a sale of any lot, or part of lot or block, to enforce collection of cost of sidewalks, shall convey a good title to the purchaser, and the balance of the proceeds of sale, after paying the amount due the city, and cost of sale, shall be paid by the city to the owner.'

The city is thus authorized itself to construct sidewalks, and, though the cost of construction is to be defrayed by the abutting lot-owners, the city is to collect from them the cost, and, in case of the sale of any lot made to enforce the collection, the city is to pay to the owner the surplus of any proceeds of sale remaining after payment of the amount due to it. It is not to be denied that this section confers upon the city council plenary authority to construct the sidewalks, and to do whatever is necessary for the construction, not prohibited by some other provision of law. The resort to the lot-owners is to be after the work has been done, after the expense has been incurred, and it is to be for reimbursement to the city.

If the city council had lawful authority to construct the sidewalks, involved in it was the right to direct the mayor, and the chairman of the committee on streets and alleys, to make a contract on behalf of the city for doing the work. We spend no time in vindicating this proposition. It is true, the council could not delegate all the power conferred upon it by the legislature, but, like every other corporation, it could do its ministerial work by agents. Nothing more was done in this case. The council directed the pavements, ordering them to be constructed of one or the other of several materials, but giving to the owners of abutting lots the privilege of selecting which, and reserving to the chairman of their committee authority to select, in case the lot-owners failed. The council also directed how the preparatory work should be done. There was, therefore, no unlawful delegation of power. But, if there had been, the contract was ratified by the council after it was made. A sufficient ratification, if any was necessary, is averred in the petition, and again and especially in the amended petition.

Another objection to the validity of the contract, urged by the city, is founded upon a provision of the charter, that the council shall not borrow for general purposes, more than $50,000; and it is said the contract, if valid, creates a liability of the city exceeding that sum. This, however, does not appear in the contract itself, and this, perhaps, is a sufficient answer to the objection. But the limitation is upon the power to borrow money, and to borrow it for general purposes. It implies that there may be lawful purposes, which are not general in the sense in which that word is used in the charter. An examination of the whole instrument, and of the numerous and large powers conferred upon the council, as well as duties imposed, makes it evident that the provision could not have been intended to prohibit incurring an indebtedness exceeding the sum named. It is in no sense a limitation of the debt of the city. If it is, the grant of power the charter contains was an idle thing, and the duties imposed could not be performed. The council, as we have seen, is empowered to grade and pave the streets and to construct sidewalks. There is no express limitation of these powers. Their exercise necessarily involves large expenditure. Such expenditure is, therefore, authroized. It is a plain incident of the power, and it is a special expenditure. It is for a new work, unlike the work of keeping in repair. Conceding that it is a purpose of the act incorporating the city, it cannot be regarded as a general purpose; for, if it is, all purposes of the charter are general. Grading a street or making a sidewalk, where none had existed before, is a special improvement, not like repairs of constant recurrence. By another article of defendant's charter, the city council was authorized to provide by ordinance special funds for special purposes, and to make the same disbursable only for the purpose for which the fund was created. For these reasons, we are of opinion that the limitation upon the power of the council to borrow for general purposes did not make the agreement with the plaintiffs invalid.

We come now to objections which the Circuit Court sustained. The learned judge held the contract inoperative, because by it the city agreed to pay for the work to be done, and the contractors agreed to receive in payment, at par, bonds of the city, denominated 'Galveston city bonds for sidewalk improvement.' These bonds were, by the ordinance that authorized their issue, made payable to bearer fifteen years after date; and the money realized from assessment on property fronting on sidewalks improved by means of their disposition was declared to be a special fund, and appropriated solely as a sinking fund for their redemption. The issue of such bonds was held by the court to be transgressive of the power of the city, and the ruling was thought to be supported by the decision of this court in the cases of Police Jury v. Britton, 15 Wall. 566, and The Mayor v. Ray, 19 id. 468.

In the view which we shall take of the present case, it is, perhaps, not necessary to inquire whether those cases justify the court's conclusion; for, if it were conceded that the city had no lawful authority to issue the bonds, described in the ordinance and mentioned in the contract, it does not follow that the contract was wholly illegal and void, or that the plaintiffs have no rights under it. They are not suing upon the bonds, and it is not necessary to their success that they should assert the validity of those instruments. It is enough for them that the city council have power to enter into a contract for the improvement of the sidewalks; that such a contract was made with them; that under it they have proceeded to furnish materials and do work, as well as to assume liabilities; that the city has received and now enjoys the benefit of what they have done and furnished; that for these things the city promised to pay; and that after having received the benefit of the contract the city has broken it. It matters not that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the parties is in force, so far as it is lawful.

There may be a difference between the case of an engagement made by a corporation to do an act expressly prohibited by its charter, or some other law, and a case of where legislative power to do the act has not been granted. Such a distinction is asserted in some decisions. But the present is not a case in which the issue of the bonds was prohibited by any statute. At most, the issue was unauthorized. At most, there was a defect of power. The promise to give bonds to the plaintiffs in payment of what they undertook to do was, therefore, at farthest, only ultra vires; and, in such a case, though specific performance of an engagement to do a thing transgressive of its corporate power may not be enforced, the corporation can be held liable on its contract. Having received benefits at the expense of the other contracting party, it cannot object that it was not empowered to perform what it promised in return, in the mode in which it promised to perform. This was directly ruled in The State Board of Agriculture v. The Citizens' Street-Railway Co., 47 Ind. 407. There it was held, that 'although there may be a defect of power in a corporation to make a contract, yet if a contract made by it is not in violation of its charter, or of any statute prohibiting it, and the corporation has by its promise induced a party relying on the promise and in execution of the contract to expend money and perform his part thereof, the corporation is liable on the contract.' See also, substantially to the same effect, Allegheny City v. McClurkin, 14 Pa. St. 81; and, more or less in point, Maher v. Chicago, 38 Ill. 266; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Argenti v. City of San Francisco, 16 Cal. 256; Silver Lake Bank v. North, 4 Johns. (N. Y.) Ch. 370.

We think, therefore, the Circuit Court erred in holding the contract of the city with the plaintiff invalid.

Nothing remains but to consider the extent of the proviso following the first clause of the agreement. It is insisted on behalf of the city, and it was so held by the circuit judge, that the proviso was a condition precedent to the performance of any part of the work, and was required to be performed before any part of the contract became binding on the city. Such is not our construction of the contract. The petition of the plaintiffs, with its amendments, sets forth the ordinances of the city, and avers that the city, contemporaneously with this contract, made various other contracts with other parties for paving the sidewalks named, with the various materials respectively therein named, each conditioned, as was the contract with the plaintiffs, that the lot-owners should select the kind of pavement, whether asphalt or some other kind, directed by the ordinance. The plain object of this proviso was to save to the lot-owners the privilege given to them by the ordinance directing the pavements to be constructed. They were to be constructed, at all events, of one or the other of certain specified materials, and the lot-owners were allowed to select which. If in any block they preferred brick, the contractor for brick paving was to put down that kind of paving. If they preferred asphalt, the contractor for asphalt was to pave with that material. But the ordinance gave to the lot-owners no liberty of choice whether there should be a pavement or none, or whether the sidewalks should be filled, graded, curbed, and prepared for a pavement of some kind, or not. That was determined by the council. That work was absolutely directed to be done. And the contract, we think, followed the ordinance. In it the undertakings of the plaintiffs for paving, filling, grading, tamping, rolling, and curbing are kept distinct from each other, and it is only to laying down an asphalt pavement that the proviso required the consent of the lot-owners. No other construction is consistent with the other parts of the contract. The proviso follows immediately the provision for the asphalt pavement. It is succeeded by arrangements for the filling, grading, and rolling, in the language of the parties, 'necessary and needed to be done upon any and all of the said sidewalks, preparatory to the laying of any pavement thereon.' The contract, so far as it relates to the next subject, is still more significant. We refer to the agreement for the wooden curbing that might be needed or used in filling up and grading the said sidewalks, 'preparatory to the putting down of the said pavement, or any other.' From this it is evident the parties contemplated that the plaintiffs should do the preparatory work upon all the sidewalks intended to be improved; namely, the work needed to put those sidewalks in a fit condition to receive any one of the pavements prescribed by the ordinance. Which one should crown the preparatory work was to be left primarily to the selection of the lot-owners in each block. If a majority of them chose asphalt, the plaintiffs were to do the work. If a majority chose some one other of the materials allowed in the ordinance, the contractor for a pavement made of that other material was to construct that pavement. The filling and curbing was to be done by the plaintiffs in any event, and it was only the paving thereafter respecting which the lot-owners had any voice.

This suit has not been brought for paving, nor for any breach of the defendant's contract respecting the paving. The claim is for damages caused by the abrogation or breach of the city's contract relating to other and distinct subjects. Hence it was not necessary to aver any consent of the owners of the property abutting upon the sidewalks.

We are, therefore, of opinion that the original and amended petitions sufficiently set forth a cause of action, and that the Circuit Court erred in sustaining the defendant's demurrer.

The judgment will be reversed, and the record remitted with instructions to give judgment on the demurrer against the defendant; and it is

So ordered.

MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE MILLER and MR. JUSTICE FIELD, dissenting.


text: Talk:Hitchcock v. Galveston/Opinion of the Court


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Hitchcock v. Galveston/Dissent Bradley

MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE MILLER and MR. JUSTICE FIELD, dissenting.

I dissent from the judgment of the court in this case, being of opinion that the provise requiring the assent of the property holders related to the entire work around each block, and not merely to the kind of pavement to be used; and that the contractors had no authority to do any work on any particular block, without such previous assent.

title: Hitchcock v. Galveston/Dissent Bradley


text: Talk:Hitchcock v. Galveston/Dissent Bradley


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Francis v. United States (96 U.S. 354)

APPEAL from the Court of Claims.

This suit was brought by Charles Francis, for the use of Nathan Myrick, to recover damages on account of extra expenses incurred in the performance of a contract entered into, May 8, 1869, between Francis and the chief quartermaster of the military department of Dakota, for the delivery by the former, on or before Jan. 15, 1870, of a number of cords of wood at certain military posts; among others, at Fort Ransom, Dakota Territory, one thousand cords. The contract 'stipulated and agreed that no traders, sutlers, contractors, civilians, or others should be allowed to cut timber about the post of Fort Ransom, D. T., until all required by the United States, for certain purposes herein specified, should have been secured.' This stipulation was inserted pursuant to General Order No. 18, which is as follows:--

'HEADQUARTERS DEPARTMENT OF DAKOTA,

'SAINT PAUL, MINN., May 12, 1868.

'Post commanders in this department will assume control of all timber, wood, hay, and grazing upon the public lands adjacent to their respective posts, which are required for the public use thereat. Notice of the reservation of the timber, wood, &c., thus made will be thoroughly circulated in the manner best calculated to inform all who are or may become interested, in order to avoid all disputes of rights which might arise through ignorance.

'On all such reservations sutlers, traders, and civilians generally will not be allowed to cut timber, wood, nor hay, nor be allowed to graze animals, until the wants of the garrison are supplied for the year.

'By command of Brevet Major-General Terry.

'O. D. GREENE,

'Assistant-Adjutant-General.'

The Court of Claims found that the post of Fort Ransom was situated on the public domain, surrounded by the public lands of the United States, and had, by an order from the head-quarters of the department of Dakota, dated May 18, 1869, which was approved by the Secretary of War and by the President Jan. 11, 1870, been declared a military reservation by that name, with the following boundaries: 'The initial point is eight miles due south of the south-west angle of the fort; thence due east five miles; thence due north ten miles; thence due west ten miles; thence due south ten miles; thence due east five miles to the initial point.'

That, prior to June 1, 1869, but near that time, the claimant commenced cutting wood on said reservation, at a point about a mile and a half from the fort, and had cut about forty cords, when he was ordered by the post commander to desist, and remove beyond the lines of the reservation. He then removed to a point within them, about four miles from the fort, and there cut three hundred and ten cords, when the post commander ordered him to stop cutting at that place, move off the reservation, and not to cut any wood within the lines thereof, but to cut wherever he pleased outside of them. The contractor then and there claimed the right, under his contract, to cut on the reservation; which claim the post commander refused to recognize. Thereupon, he cut the remaining six hundred and fifty cords required to be furnished by him at a point about seven miles from the fort, and from half a mile to a mile beyond the lines of the reservation.

That, in September, 1869, the claimant commenced hauling to the fort the wood which he had cut on the reservation at a point four miles from the fort, when the post commander stopped the work, and would not permit him to haul the wood, because it had been cut within the lines of the reservation, in disobedience of positive orders.

The claimant appealed to General Hancock, who overruled the post commander, decided that the contractor had a right to cut wood on the reservation, and to haul what had been so cut. By reason of the order of the post commander, nine teams of the claimant remained idle thirteen days, to his expense of $468; but it does not appear that he might not have employed them during that time in hauling the vood cut off the reservation, which he was not prohibited from moving.

That there was sufficient wood on the reservation for the known wants of the post; and the claimant could have obtained, either at or near the place where he cut the first forty cords, or at the place where he cut the three hundred and ten cords, the whole quantity required by the contract, had he not been interfered with by the orders of the post commander.

That, by reason of said orders, and by being compelled thereby to cut the remaining quantity of wood at greater distances from the fort, he was subjected to an additional expense of $2,132, in hauling the same to the place of delivery.

That it does not appear how much more expense, if any, the claimant was subjected to by reason of cutting the six hundred and fifty cords outside of the reservation, over and above what he would have incurred had he been permitted to cut them within it, at the place where he cut the three hundred and ten cords, and from which he was ordered away by the post commander.

That the claimant has been paid for one thousand and three cords of wood, delivered under the contract, the money therefor having been paid at different times, and a receipt therefor given in full for the quantity delivered.

On the foregoing facts, the court concluded, as a matter of law, that the claimant was not entitled to recover, and it dismissed his petition. He thereupon appealed to this court.

Mr. John B. Sanborn for the appellant.

The Solicitor-General, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Francis v. United States (96 U.S. 354)


text: Talk:Francis v. United States (96 U.S. 354)


text:
Francis v. United States (96 U.S. 354)/Opinion of the Court

Post commanders in the military department where the present controversy arose were ordered to assume control of all timber, wood, hay, and grazing upon the public lands adjacent to their respective posts, to the extent that the same were there required for the public use.

Supplies for the post were usually obtained by contract; and it appears that a contract was made between the petitioner and the quartermaster of the department, by which the former agreed to deliver and pile, in the wood-yard of the post, one thousand cords, more or less, of good, sound, merchantable oakwood, to be delivered at the times specified, subject to such inspection as the quartermaster should deem necessary. Superadded to that is also the stipulation that no trader, sutler, contractor, or civilian will be allowed to cut timber about the post; and it appears that the post referred to is situated on the public domain, and that it was surrounded by the public lands.

Before the work was commenced, the contractor executed a power of attorney to the person for whose use the suit is brought; and it appears that the attorney did all the work under the contract as agent for and in the name of the contractor.

Pursuant to the contract, due deliveries were made by the attorney, to the amount of one thousand and three cords of wood; for which he was paid at different times, he receipting for the same, as attorney-in-fact of the contractor, in full for the quantity delivered. Payment in full for all that was delivered is established by the findings; but the petitioner insists that the United States broke the contract, by not allowing the attorney to cut the wood within the defined limits of the post; that he was refused that privilege; and that he was compelled to cut it at a greater distance from the place of delivery, at an expense of $2,132 beyond what it would have cost if he had been allowed to cut it within the military reservation, as he had a right to do under the contract, for which he claims compensation: and he also alleges that the United States obstructed the delivery of the wood, so as to cause him an additional expense of $468, which he also claims to recover.

Hearing was had; and the Court of Claims dismissed the petition, and the claimant appealed to this court.

Throughout, the attorney or agent of the contractor claimed the right to cut the wood within the military reservation, evidence of which is seen in the fact that he commenced cutting about a mile and a half from the fort, where he cut forty cords before he was ordered by the post commander to desist, and to remove beyond the lines of the reservation. Whatever he may have claimed, he obeyed the order, and removed to another point, four miles from the fort, though still within the reservation; and there he cut three hundred and ten cords of the wood, when the commander of the post ordered him to stop cutting at that place, and to move outside of the reservation. Responsive to that order, he set up the claim that he had a right, under the contract, to cut the wood within the reservation; but the post commander refused to recognize any such right, and denied the claim.

Opposite views were evidently maintained by the parties; but the claimant yielded, and cut the balance of the wood required, to wit, six hundred and fifty cords, at a point half a mile or a mile beyond the limits of the reservation, and about seven miles from the fort.

Neither party attempted to rescind the contract; nor did the agent of the contractor cease to act under it, as he completed the cutting of the wood, and subsequently delivered it at the place designated in the contract, and collected the amount due to him at the contract price. Quantity, price, and place of delivery are all fixed in the contract; but nothing is said about the place where the wood is to be cut, except what may be properly inferred from the provision that no traders, sutlers, contractors, civilians, or others shall be allowed to cut timber about the post until all required by the party of the second part, to wit, the United States, for the purposes herein specified, shall have been secured; and that it shall be the duty of the post commander to enforce the stipulation as made and provided.

Beyond all question, the post commander denied the right of the attorney, under the contract, to cut the wood within the lines designating the military reservation; and it is equally clear that the agent of the claimant finally acquiesced in the views of the post commander, so far as respects the cutting of the wood.

Damages are claimed by the petitioner because he was not allowed to cut the wood within the military reservation; but it is clear that the claim cannot be supported, for several reasons, either of which is sufficient to show that the judgment of the court below is correct: 1. Because the terms of the contract do not give the contractor the right which he claims. 2. Because the contract, when properly construed, prohibits the contractor from cutting wood within the reservation. 3. Because the contractor having acquiesced in the order of the post commander, and cut the wood outside of the reservation, and having since hauled and delivered the wood, and received his pay in full for the same under the contract, it is too late to prefer such a claim against the United States.

Controversy respecting the cutting of the wood ceased when the cutting was completed; but when the claimant commenced hauling the wood cut within the reservation, four miles from the fort, the post commander stopped the work, and would not permit him to haul the wood, because it had been cut within those lines in violation of positive orders. To that decision the claimant objected, and appealed to the commanding general, who overruled the order of the post commander, and decided that the contractor had a right to cut wood within the reservation, and to haul that which had been so cut. What the contractor then wanted was not the privilege of cutting wood within the reservation, but the right to haul that which he had previously cut within those lines in violation of the post commander's orders; and his appeal having been sustained, he was allowed to haul the wood, as he claimed the right to do. Having previously cut the wood, he wanted to haul it to the place of delivery, and he was permitted to do what he desired.

Suppose the decision of that high officer is correct, which is not admitted, it is clear that it cannot benefit the claimant, so far as respects the cutting of the wood, as it was all cut before the appeal to that officer was taken; and there is no pretence that the claimant ever afterwards attempted to cut any wood within the lines of the reservation, or that any request of his for such permission was ever after that refused.

Viewed in the light of these suggestions, it is clear that the petitioner is not entitled to recover any thing for the alleged extra expense of hauling the wood to the place of delivery, in consequence of the refusal of the post commander to allow him to cut it within the lines of the military reservation.

Even suppose that it is so, still it is insisted by the petitioner, that, inasmuch as the order of the post commander stopping the work of hauling the wood cut within the reservation was overruled by the commanding general, he, the appellant, is entitled to recover for the damage which he suffered by his teams remaining idle for thirteen days; but the court is not able to sustain that proposition, as it appears that he delivered the wood under the contract, collected and received the contract price for the same, and gave receipts in full for the same as a transaction completed in pursuance of the written contract set forth in the petition. Competent evidence of such acts is sufficient to prove an accord and satisfaction, and they show that there is no error in the record.

Judgment affirmed.


text: Talk:Francis v. United States (96 U.S. 354)/Opinion of the Court


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United States v. Simmons

CERTIFICATE of division between the judges. of the Circuit Court of the United States for the Eastern District of New York.

Simmons was indicted in the Circuit Court of the United States for the Eastern District of New York for violating sects. 3258, 3259, 3266, and 3281 of the Revised Statutes of the United States. The indictment contained four counts, the second of which was drawn under sect. 3266, and the fourth under sect. 3281. It is as to the sufficiency of these counts that the case comes here on certificate of division in opinion.

The facts are fully stated in the opinion of the court.

The Solicitor-General, for the United States, cited United States v. Mills, 7 Pet. 138; United States v. Cook, 17 Wall. 168; United States v. Cruikshank et al., 92 U.S. 542.

Mr. Benjamin F. Tracy, for the defendant, cited Lipe v. Becker, 1 Den. (N. Y.) 568; United States v. Clark, 1 Gall. 497; Whart. Crim. Law, 285, 294, 300, 304, 366, 369, 372, 382, 2705; 1 Archb. Crim. Pr. & Pl. 86, note 2; id. 88; United States v. Mills, 7 Pet. 138; People v. Wilbur, 4 Park (N. Y.), Cr. 19; Ewright v. People, 21 How. (N. Y) Pr. 383; People v. Allen, 5 Den. (N. Y.) 76; 1 Hale, P. C. 517, 526, 535; United States v. Pond, 2 Curt. 265; 1 Bishop, Crim. Proc. 141, 372; United States v. Bentilini, 15 Int. Rev. Rec. 32; United States v. Howard, 1 Sawyer, 507; United States v. States, 8 How. 41; United States v. Rood, 1 Low. 232; United States v. Cruikshank et al., 92 U.S. 542; People v. Gaige, Green, Cr. L. R. 524; United States v. Watkins, 3 Cranch C. C. 441; People v. Gates, 13 Wend. (N. Y.) 311; United States v. Thomas, 4 Ben. 370; State v. Jackson, 39 Conn. 299; United States v. Claflin, 13 Blatchf. 178; The Emily, 9 Wheat. 381; United States v. Gooding, 12 id. 460; Fillinger v. The People, 15 Abb. (N. Y.) Pr. 128; United States v. Fox, 1 Low. 199.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: United States v. Simmons


text: Talk:United States v. Simmons

title: Talk:United States v. Simmons


text:
United States v. Simmons/Opinion of the Court

Upon an indictment, charging violations of certain provisions of the Revised Statutes of the United States, relating to distilled spirits, Simmons was found guilty as charged in each count, and moved in arrest of judgment. The first and third counts were held to be bad, and the case is here upon a statement of facts and a certificate of division in opinion upon several questions involving the sufficiency of the second and fourth counts.

The second count, pursuing the words of sect. 3266 of the Revised Statutes, charges that the defendant 'did knowingly and unlawfully cause and procure to be used a still, boiler, and other vessel, for the purpose of distilling, within the intent and meaning of the internal revenue laws of the United States, in a certain building and on certain premises where vinegar was manufactured and produced, against the peace of the United States and their dignity, and against the form of the statute of the said United States in such case made and provided.'

Under this count we are asked the following questions: First, whether it is sufficient, in an indictment drawn under that portion of the section which prohibits the use of a still, boiler, or other vessel, for the purpose of distilling, in any building or on premises where vinegar is manufactured or produced, to charge the offence in the words of the statute. Second, whether the omission of an averment that the distilling there referred to was of alcoholic spirits is a valid objection to the count.

The first question is answered in the negative.

Where the offence is purely statutory, having no relation to the common law, it is, 'as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 1 Bishop, Crim. Proc., sect. 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offence. An indictment not so framed is defective, although it may follow the language of the statute.

Tested by these rules, the second count is insufficient. Since the defendant was not charged with using the still, boiler, and other vessels himself, but only with causing and procuring some one else to use them, the name of that person should have been given. It was neither impracticable nor unreasonably difficult to have done so. If the name of such person was unknown to the grand jurors, that fact should have been stated in the indictment.

Nor does it sufficiently appear that vinegar was manufactured or produced in the building and on the premises referred to at the time the still and other vessels were used for the purpose of distilling. It is consistent with the averments that the vinegar had been manufactured or produced long prior to the date when the alleged distilling occurred. The two facts must coexist, in order to constitute the offence described in the statute.

In reference to the second question, we do not think it essential to aver in terms that the spirits distilled were alcoholic. In view of the statutory definition of distilling, the allegation that the vessels were used 'for the purpose of distilling, within the intent and meaning of the internal revenue laws of the United States,' was distinct and broad enough to advise the accused of the nature of the offence charged.

Counsel for the accused contend that the indictment does not show that the stills and other vessels were used for distilling. This objection cannot be sustained. The averment, that the defendant caused and procured them to be used, implies, with sufficient certainty, that they were in fact used. United States v. Mills, 7 Pet. 138.

Nor was it necessary, as argued by counsel for the accused, to set forth the special means employed to effect the alleged unlawful procurement. It is laid down as a general rule, that 'in an indictment for soliciting or inciting to the commission of a crime, or for aiding or assisting in the commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid or assistance.' 2 Wharton, sect. 1281; United States v. Gooding, 12 Wheat. 460. The nature of the means whereby the unlawful use of the still and other vessels was procured is matter of evidence to establish the imputed intent, and not of allegation in the indictment.

The fourth count is based upon sect. 3281 of the Revised Statutes, and charges that the defendant 'did knowingly and unlawfully engage in and carry on the business of a distiller, within the intent and meaning of the internal revenue laws of the United States, with the intent to defraud the United States of the tax on the spirits distilled by him, against the peace,' &c.

This count seems to us sufficient to authorize judgment thereon. It was not necessary to state in the indictment the particular means by which the United States was to be defrauded of the tax. The defendant is entitled to a formal and substantial statement of the grounds upon which he is questioned, but not to such strictness in averment as might defeat the ends of justice. The intent to defraud the United States is of the very essence of the offence; and its existence in connection with the business of distilling being distinctly charged, must be established by satisfactory evidence. Such intent may, however, be manifested by so many acts upon the part of the accused, covering such a long period of time, as to render it difficult, if not wholly impracticable, to aver, with any degree of certainty, all the essential facts from which it may be fairly inferred.

'The means of effecting the criminal intent,' says Mr. Wharton, 'or the circumstances evincive of the design with which the act was done, are considered to be matters of evidence to go to the jury to demonstrate the intent, and not necessary to be incorporated in an indictment.' 1 Wharton, sect. 292; United States v. Gooding, supra. To the same effect is the opinion of Mr. Justice Miller in the case of United States v. Ulrici, 3 Dill. 535.

But it is contended that the fourth count contains no averment of an unlawful act, but only of an intent to defraud the United States of the tax on spirits; and that it is not competent for Congress to punish a mere intent, however fraudulent, unaccompanied by an unlawful act. We do not think the indictment justly liable to this objection.

The internal revenue laws define the business of a distiller. Congress has the constitutional power to prescribe, as it has done, rules and regulations, in conformity to which that business may be lawfully carried on. But the citizen may not engage in or carry on such business with the intent to defraud the government of the tax on spirits distilled by him. If he does, he thereby commits the offence charged in the count under consideration, and is liable to the punishment prescribed by statute. But such punishment is not inflicted merely or solely because of the intent to defraud. It is the act of engaging in the distillation of spirits, combined with that intent, which constitutes the offence. A question somewhat analogous arose in The Emily, 9 Wheat. 381. That was an information, founded upon the statutes prohibiting the slave-trade. Under those statutes, a vessel fitted out by any citizen or resident of the United States, for the purpose of carrying on any trade or traffic in slaves, contrary to the provisions of the statutes, &c., was subject to forfeiture. This court said: 'The object in view, by the section of the law under consideration, was to prevent the preparation of vessels in our own ports which were intended for the slave-trade. Hence is connected with this preparation, whether it consists in building, fitting, equipping, or loading, the purpose for which the act is done. The law looks at the intention, and furnishes authority to take from the offender the means designed for the preparation of the mischief. This is not punishing the intention merely; it is the preparation of the vessel and the purpose for which she is to be employed that constitutes the offence, and draws after it the penalty of forfeiture. . . . The intention or purpose for which the vessel is fitting must be made out, so as to leave no reasonable doubt as to the object. This is a matter of proof, and, generally speaking, to be collected from the kind of preparation that has been made.' In the subsequent case of United States v. Gooding, supra, which was a prosecution for being engaged in the slave-trade contrary to the prohibitions of the act of 1818, the court said that the statute imputed no guilt to any particulars of the equipment of the vessel, but to the act of fitting out the vessel, with the illegal intent to engage in the prohibited traffic; that it was 'the act, combined with the intent, and not either separately, which is punishable.'

These decisions furnish rules applicable to the case under consideration. The statute does not prescribe a punishment simply for the intent to defraud the United States of the tax on spirits distilled, but for the act of engaging in and carrying on the business of a distiller with that intent. The act and the fraudulent intent together constitute the offence. That Congress, as a means of protecting the revenue and of securing taxes rightfully due the government, may declare such an act, when accompanied by such an intent, to be a public offence, and prescribe a punishment therefor, we do not doubt.

The views here expressed furnish a sufficient answer to the questions propounded under the fourth count.

It will therefore be certified, as the opinion of this court, on the points of division,-1. That the second count of the indictment is insufficient to authorize a judgment thereon. 2. That the fourth count is sufficient to authorize judgment to be pronounced thereon against the defendant; and it is

So ordered.


text: Talk:United States v. Simmons/Opinion of the Court


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United States v. Van Auken

CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the Western District of Michigan.

The facts are stated in the opinion of the court.

The Attorney-General and Mr. Assistant-Attorney-General Smith for the United States.

Mr. George W. Lawton, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: United States v. Van Auken


text: Talk:United States v. Van Auken

title: Talk:United States v. Van Auken


text:
United States v. Van Auken/Opinion of the Court

The act of Congress of July 17, 1862, sect. 2 (12 Stat. 592; Rev. Stat. 711, sect. 3583), declares that 'no private corporation, banking association, firm, or individual shall make, issue, circulate, or pay out any note, check, memorandum, token, or other obligation, for a less sum than one dollar, intended to circulate as money, or to be received or used in lieu of lawful money of the United States,' and denounces as a penalty for the offence fine or imprisonment, or both.

Van Auken was indicted under this act for circulating the 'obligations' of the Bangor Furnace Company, a corporation created by and under the laws of the State of Michigan, which obligations are alleged to be in haec verba:--

'BANGOR, MICH., Aug. 15, 1874.

'The Bangor Furnace Company will pay the bearer, on demand, fifty cents, in goods, at their store, in Bangor, Mich.

(Signed) 'A. B. HOUGH, Pres.

'CHAS. D. RHODER, Treas.'

'Each of which said obligations was for a less sum than one dollar, and was intended by the said Aaron Van Auken to circulate as money, and to be received in lieu of lawful money of the United States, contrary,' &c.

Van Auken demurred to the indictment. The opinions of the judges of the Circuit Court were divided and opposed upon two questions, which were thereupon certified to this court for final determination:--

1. Whether the obligation set forth in the indictment is within any valid statute of the United States.

2. Whether the statute under which the indictment was found is constitutional.

The solution of the first question depends upon the construction to be given to the words 'for a less sum than one dollar.' The object of the provision was obviously to secure, as far as possible, the field for the circulation of stamps, as provided in the preceding section, without competition from any quarter. This currency was superseded by the fractional notes authorized to be issued by the act of March 3, 1863, sect. 4 (12 Stat. 711). Small notes payable in any specific articles, if issued, could have only a neighborhood circulation, and but a limited one there. It could be but little in the way of the stamps or small notes issued for the purposes of circulating change by the United States. Congress could, therefore, have had little or no motive to interfere with respect to the former. This must be borne in mind in the examination of the question in hand.

A dollar is the unit of our currency. It always means money, or what is regarded as money. In this case, the statute makes it the standard of measure with reference to the forbidden notes and obligations. If one of them be for a larger 'sum than one dollar,' it is not within the prohibition, and is not affected by the law. It is a fair, if not a necessary, inference, that the standard of measurement named was intended to be applied only to things ejusdem generis; in other words, to notes for money, and to nothing else.

It is certainly inapplicable to any thing not measurable by the pecuniary standard. It could not be applied where the measurement was to be, ex gratia, by the pound, the gallon, the yard, or any other standard that money. This view is supported by the statutory requirement that the forbidden thing must be 'intended to circulate as money, or to be received or used in lieu of the lawful money of the United States.' One of the lexical definitions of the word 'sum,' and the sense in which it is most commonly used, is 'money.' 'Sum. (2.) A quantity of money or currency; any amount indefinitely, as a sum of money, a small sum, or a large sum.' Webster's Dic. 'For a less sum than one dollar' means exactly the same thing as for a less sum of money than one dollar. In the former case there is an ellipsis. In the latter, it is supplied. The implication where the omission occurs is as clear and effectual as the expression where the latter is added. The grammatical construction and the obvious meaning are the same. The statute makes the offence to consist of two ingredients: 1. The token or obligation must be for a less sum than a dollar. 2. It must be intended to circulate as money, or in lieu of the money of the United States. Here the note is for 'goods,' to be paid at the store of the Furnace Company. It is not payable in money, but in goods, and in goods only. No money could be demanded upon it. It is not solvable in that medium. Watson v. McNairy, 1 Bibb, 356. The sum of 'fifty cents' is named, but merely as the limit of the value in goods demandable and to be paid upon the presentment of the note. Its mention was for no other purpose, and has no other effect. In the view of the law, the note is as if it called for so many pounds, yards, or quarts of a specific article. The limit of value, there being none other, gave the holder a range of choice as to the articles to be received in payment, limited only by the contents of the store.

But it is said the indictment avers that the note was intended to circulate as money, and that the demurrer admits the truth of the averment.

To this there are two answers:--

1. The demurrer admits only what is well pleaded.

2. The offence, as we have shown, consists of two elements: the thing circulated, and the intent of the party circulating it.

The demurrer, at most, admits only the latter. As to the former, the judgment of the court is left unfettered, just as if the question before us had been raised by a motion to quash, instead of a demurrer.

The first question certified must be answered in the negative. The second one it is, therefore, unnecessary to consider.

MR. JUSTICE MILLER dissented.


text: Talk:United States v. Van Auken/Opinion of the Court


text:
Ex Parte Schollenberger

PETITION for a mandamus to the judges of the Circuit Court of the United States for the Eastern District of Pennsylvania.

Schollenberger, a citizen of Pennsylvania, brought sundry suits in said Circuit Court against certain foreign insurance companies, upon policies which they had severally issued upon his property situate in that State and within the jurisdiction of the court.

Each company, before the issue of its policy, had accepted the provisions of the statute of the State, and, in compliance therewith, appointed its agent residing there, on whom process of law against it could be served. So much of the statute as bears on the question here involved is set out in the opinion of this court.

The service of the writs, which were sued out by Schollenberger, and executed, in accordance with the State law, on the agents of the several companies by them respectively specified for the purpose, and residing within the jurisdiction of the court, was quashed by the Circuit Court. On his petition, setting forth the foregoing facts, a rule was awarded upon the judges of that court to show cause why a writ of mandamus should not be issued out of the office of this court, commanding them to hear and determine the suits so brought in the said Circuit Court, and also to strike from the record certain orders dated the thirteenth day of April, 1878, whereby the service of the said writs was quashed, and thereupon to make such disposition of the suits as ought to have been made, had the said orders not been entered.

The judges, in their return, answered, that the facts were truly stated in the petition; that the respondents declined to hear and determine the said suits, because, in their opinion, the said Circuit Court had no competent jurisdiction thereof, the defendants not having appeared therein, or in any wise submitted to the jurisdiction of the court, and not having been at the commencement of the respective suits, or at any time, inhabitants of or found in the said district, within the meaning of the act of Congress of March 3, 1875, re-enacting a like provision of the eleventh section of the act of Sept. 24, 1789; that the question under this enactment being one of jurisdiction, and not of mere procedure, the statute of Pennsylvania, mentioned in the said petition, was, in the opinion of the respondents, inapplicable. The service of the process in the said suits was, therefore, set aside, as unauthorized.

Mr. R. C. McMurtrie and Mr. A. Sydney Biddle for Schollenberger.

1. The jurisdiction of the Circuit Court over the parties is indisputable. Schollenberger was a citizen of Pennsylvania. The corporations were created by other States, and by entering their appearance to the actions would have become subject to that jurisdiction, which would not be the case if the requisite citizenship of the parties to the record did not exist. Jones v. Anderson, 10 Wall. 327.

2. Mandamus is the appropriate remedy.

That writ goes to the archbishop, if exercising judicial functions, Reg. v. Canterbury, 11 Q. B. 483; to a court declining to exercise judicial functions imposed by law, Reg. v. West R. Justices, 1 New Sess. Cas. 247; to compel making a warrant of distress, St. Lukes v. Middlesex, 1 Wils. 133; on a refusal to act because of a statute which did not apply to the case, Reg. v. Bingham, 4 Q. B. 877; on a refusal to hear an appeal for reasons which were not legal ones, Reg. v. Middlesex, 2 B. C. R. 82; on a refusal because of an erroneous opinion as to sufficiency of grounds, Reg. v. Carnarvon, 1 G. & D. 423; or on erroneous point of practice, Reg. v. Kistevan, 3 Q. B. 810; on a refusal of the Circuit Court to take jurisdiction of a cause removed to it from a State court, Railroad Company v. Wiswall, 23 Wall. 567; on a refusal to grant an appeal to which a party is entitled, Ex parte Cutting, 94 U.S. 14; Ex parte Jordan, id. 248.

3. The State had a right to impose the prescribed conditions to the transaction of the business of insurance within her territory by the companies. Doyle v. Insurance Company, 94 U.S. 535; Lafayette Insurance Co. v. French, 18 How. 404; Railroad Company v. Harris, 12 Wall. 65. The latter having accepted them, and subsequently issued the policies which are the subject-matter of the suits in question, were bound to specify, and did specify, agents residing within the State upon whom process could be served. Service in the mode prescribed by the State law, upon such agents actually within the jurisdiction of the court, was, therefore, good under the act of Congress (17 Stat. 197), and had the same effect as if personally made within the eastern district of Pennsylvania upon the respective companies.

4. Each of the companies had, therefore, a habitat for the purposes of jurisdiction within that district, and was found there, within the meaning of the act of Congress of March 3, 1875 (18 Stat. 470). Knott v. Southern Life Insurance Co., 2 Woods, 479; Railroad Company v. Harris, supra.

Mr. Richard P. White, contra.

1. Mandamus is not the proper remedy.

The question raised on the motion below to quash the service of the writs was one of jurisdiction, and the judges in passing upon it were obviously acting in a judicial, and not in a ministerial, capacity. The proceeding may be reviewed on error; but it is not the office of a mandamus to compel an inferior court to reverse a decision made in the exercise of its legitimate jurisdiction. Ex parte Flippin, 94 U.S. 348.

2. The service of the writs was properly quashed. Each of the defendants was a foreign corporation, not having an existence, nor its officers any official character, outside the limits of the State which created it. Bank of Augusta v. Earle, 3 Pet. 519; Ohio & Mississippi Railroad Co. v. Wheeler, 1 Black, 286. It could not, therefore, be found within the district. Although the pretended service was according to the State law, the act of Congress requiring conformity of process and procedure did not make it good, if a court of the United States had no power to issue the writ, or proceed in the cause. That power cannot be derived from State legislation, Toland v. Sprague, 12 Pet. 300; Levy v. Fitzpatrick, 15 id. 167; Insurance Company v. Morse, 20 Wall. 445; and Congress, so far from conferring it, has prohibited a suit in the Circuit Court against a person not an inhabitant of nor found within the district.

The writs, for the service of which the statute of Pennsylvania provides, are, by an express limitation, confined to those sued out in actions brought in the tribunals of that State.

If, however, each company, by its acceptance of that statute, was constituted, pro tanto, a Pennsylvania corporation, then the Circuit Court had no jurisdiction, as both parties were, for the purposes of the suit, citizens of the same State. Where a corporation exists in two States, it cannot be sued in a Federal court by a citizen of either of them. Ohio & Mississippi Railroad Co. v. Wheeler, supra.

The decision of the Circuit Court is sustained by Pomeroy v. New York & New Haven Railroad Co., 4 Blatchf. 120; Day v. Newark India-rubber Manufacturing Co., id. 628; Southern Atlantic Telegraph Co. v. The New Orleans, Mobile, & Texas Railroad Co., 2 Cent. Law Jour. 88; and Stilwell v. The Empire Fire Insurance Co., 4 id. 88.

Railroad Company v. Harris, upon which great reliance is placed on the other side, was a suit brought in the District of Columbia against a foreign corporation doing business there, under an act which provided that service might be made upon the agent. Congress may undoubtedly regulate the mode of serving process in the courts of that District, and prescribe the conditions upon which foreign corporations may there transact business. Its power in that regard is the same as that of the several States within their respective limits, and no one questions that Pennsylvania can determine the manner in which writs issued by her own courts may be executed. That case differs essentially from this. Congress, by an act solely applicable to a specific territory, extended the jurisdiction of its courts to suits against a foreign corporation doing business there, when process should be served in the mode prescribed; while by the act of March 3, 1875, which governs here, it withholds from the Circuit Court jurisdiction over a defendant not an inhabitant of or found within the proper district.

The opinion in that case must, therefore, be understood with reference to the facts. Although not relating to the effect of State legislation upon the service of Federal writs, it evidently misled the learned judge of the fifth circuit in Knott v. Southern Life Insurance Co. It should also be borne in mind that the statute which he had under consideration differs from that of Pennsylvania, in requiring the foreign company doing business in Alabama to consent that service upon its agents there shall be sufficient, without restriction as to the courts out of which the writ may issue.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Ex Parte Schollenberger


text: Talk:Ex Parte Schollenberger

title: Talk:Ex Parte Schollenberger


text:
Ex Parte Schollenberger/Opinion of the Court

This is a petition for a writ of mandamus, requiring the judges of the Circuit Court of the United States for the Eastern District of Pennsylvania to hear and determine certain suits brought in that court in favor of the relators against a number of insurance companies incorporated by the laws of other States, but doing business in that State under a license granted pursuant to a statute regulating that subject. The Circuit Court declines to entertain jurisdiction of the causes, for the reason, as is alleged, that the defendant companies were not 'at the commencement of the respective suits, or at any time, inhabitants of or found in the said district.' This presents the only question in the case, as it is conceded that the citizenship of the parties is such as to give the court jurisdiction, if the several defendants can be sued in the district without their consent.

A statute of Pennsylvania provides that 'no insurance company not of this State, nor its agents, shall do business in this State until he has filed with the insurance commissioner of this State a written stipulation, duly authenticated by the company, agreeing that any legal process affecting the company served on the insurance commissioner, or the party designated by him, or the agent specified by said company to receive service of process for the said company, shall have the same effect as if served personally on the company within this State; and, if such company should cease to maintain such agent in this State, so designated, such process may thereafter be served on the insurance commissioner; but, so long as any liability of the stipulating company to any resident of this State continues, such stipulation cannot be revoked or modified, except that a new one may be substituted, so as to require or dispense with the service at the office of said company within this State, and that such service of process according to this stipulation shall be sufficient personal service on the company. The term 'process' includes any writ of summons, subpoena, or order whereby any action, suit, or proceedings shall be commenced, or which shall be issued in or upon any action, suit, or proceedings brought in any court of this Commonwealth having jurisdiction of the subject-matter.' Laws of Penn., 1873, p. 27, sect. 13.

The return to the rule to show cause admits that all the defendant companies were doing business in the State under this statute, and that their designated agents were duly served with process in each of the suits. For the purposes of this hearing, the fact of due service upon the agents must be considered as established. If in reality it is not so, the court below will not be precluded by any thing in this proceeding from inquiring into the truth, and acting upon the facts as they are found to exist.

The act of 1875, determining the jurisdiction of the circuit courts (18 Stat. 470), and which in this particular is substantially a re-enactment of the act of 1789 (1 Stat. 79, sect. 11), provides that 'no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhab itant, or in which he shall be found at the time of serving such process or commencing such proceedings, except,' &c.

It is unnecessary to inquire whether these several companies were inhabitants of the district. The requirements of the law, for all the purposes of this case, are satisfied if they were found there at the time of the commencement of the suits; and that question, we think, was settled in Railroad Company v. Harris, 12 Wall. 65. In that case, it appears that, when the suit was commenced, the statutes defining the jurisdiction of the courts of the District of Columbia provided that 'no action or suit shall be brought. . . by any original process against any person who shall not be an inhabitant of or found within the District at the time of serving the writ.' 2 Stat. 106, sect. 6. Afterwards, in 1867, the law was changed in respect to foreign corporations doing business in the District, and service allowed upon the agent (14 Stat. 404, sect. 11); but when the suit was begun and the process served the old law was in force. The Baltimore and Ohio Railroad Company, a Maryland corporation, was authorized by Congress to construct and extend its railroad into the District of Columbia. Harris, having been injured while travelling as a passenger upon the railroad outside of the District, sued the company in the Supreme Court of the District, and caused the writ to be served upon the president of the company within the District. The company objected to the jurisdiction of the court, and insisted that it was neither an inhabitant of nor found within the District. In ruling upon this objection, we held that, although the company was a foreign corporation, it was suable in the District, because it had in effect consented to be sued there, in consideration of its being permitted by Congress to exercise therein its corporate powers and privileges. The language of the court, speaking through Mr. Justice Swayne, is: 'It (a corporation) cannot migrate, but may exercise its authority in a foreign territory upon such conditions as may be prescribed by he law of the place. One of these conditions may be that it shall consent to be sued there. If it do business there, it will be presumed to have assented, and will be bound accordingly.' Then, after an examination of the statute granting the right to extend the road, it was said (p. 84): 'We entertain no doubt that it made the company liable to suit where this suit was brought, in all respects as if it had been an independent corporation of the same locality.' This language was cited with approbation, and adopted as a correct exposition of the law by Mr. Justice Field, speaking for the court, in Railway Company v. Whitton, 13 Wall. 270.

Applying these principles to the present case, there cannot be any doubt, as it seems to us, of the jurisdiction of the Circuit Court over these defendant companies. They have in express terms, in consideration of a grant of the privilege of doing business within the State, agreed that they may be sued there; that is to say, that they may be found there for the purposes of the service of process issued 'by any court of the Commonwealth having jurisdiction of the subject-matter.' This was a condition imposed by the State upon the privilege granted, and it was not unreasonable. Lafayette Insurance Co. v. French, 18 How. 404. It was insisted in argument that the statute confines the right of suit to the courts of the State; but we cannot so construe it. There is nothing to manifest such an intention; and, as the object of the legislature evidently was to relieve the citizens of Pennsylvania from the necessity of going outside of the State to seek judicial redress upon their contracts made with foreign insurance companies, it is but reasonable to suppose that they were entirely at liberty to select the court in the State having jurisdiction of the subject-matter, which, in their judgment, was the most convenient and desirable. As the company, if sued in a State court, could remove the cause to the Circuit Court, and thus compel a citizen of the State to submit to that jurisdiction, we see no reason why the citizen may not, if he desires it, bring the company into the same jurisdiction at the outset. While the Circuit Court may not be technically a court of the Commonwealth, it is a court within it; and that, as we think, is all the legislature intended to provide for.

States cannot by their legislation confer jurisdiction upon the courts of the United States, neither can consent of parties give jurisdiction when the facts do not; but both State legislation and consent of parties may bring about a state of facts which will authorize the courts of the United States to take cognizance of a case. Ex parte McNeil, 13 Wall. 236. Thus, if the parties to a suit, both plaintiff and defendant, are in fact citizens of the same State, an agreement upon the record that they are citizens of different States will not give jurisdiction. But if the two agree that one shall move into and become a citizen of another State, in order that jurisdiction may be given, and he actually does so in good faith, the court cannot refuse to entertain the suit. So, as in this case, if the legislature of a State requires a foreign corporation to consent to be 'found' within its territory, for the purpose of the service of process in a suit, as a condition to doing business in the State, and the corporation does so consent, the fact that it is found gives the jurisdiction, notwithstanding the finding was procured by consent. The essential fact is the finding, beyond which the court will not ordinarily look.

A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located by or under the authority of its charter; but it may by its agents transact business anywhere, unless prohibited by its charter or excluded by local laws. Under such circumstances, it seems clear that it may, for the purpose of securing business, consent to be 'found' away from home, for the purposes of suit as to matters growing out of its transactions. The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented. Here, the defendant companies have provided that they can be found in a district other than that in which they reside, if a particular mode of proceeding is adopted, and they have been so found. In our opinion, therefore, the Circuit Court has jurisdiction of the causes, and should proceed to hear and decide them.

We are aware that the practice in the circuit courts generally has been to decline jurisdiction in this class of suits. Upon an examination of the reported cases in which this question has been decided, we find that in almost every instance the ruling was made upon the authority of the late Mr. Justice Nelson, in Day v. The Newark India-rubber Manufacturing Co., 1 Blatchf. 628, and Pomeroy v. The New York & New Haven Railroad Co., 4 id. 120. These cases were decided by that learned justice, the one in 1850 and the other in 1857, long before our decision in Railroad Company v. Harris (supra), which was not until 1870, and are, as we think, in conflict with the rule we there established. It may also be remarked, that Mr. Justice Nelson, as a member of this court, concurred in that decision.

Judge Woods, of the fifth circuit, has already decided in favor of the jurisdiction in Knott v. The Southern Life Insurance Co. (2 Woods, 479), and Judge Dillon, of the eighth circuit, declined to take it, only because he felt himself foreclosed by the rulings of other judges, and especially of Mr. Justice Nelson. Stillwell v. The Empire Fire Insurance Co., 4 Cent. Law Jour. 463.

Writ of mandamus granted.


text: Talk:Ex Parte Schollenberger/Opinion of the Court


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Wisconsin v. Duluth

ORIGINAL.

The facts are stated in the opinion of the court.

Mr. I. C. Sloan and Mr. James B. Beck for the complainant.

Mr. C. K. Davis, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Wisconsin v. Duluth


text: Talk:Wisconsin v. Duluth

title: Talk:Wisconsin v. Duluth