text:
Railroad Company v. Maine/Opinion of the Court

The principal question for our determination is whether the conditional and limited taxation, to which the two original companies first consolidated were subjected, is extended to the present corporation defendant after its second consolidation. As the act of 1856, authorizing the first consolidation, conferred upon the new corporation 'all the powers, privileges, and immunities' possessed by each of the consolidating companies, and the act of 1873, by reference, adopts the same provisions, it is contended that the new company is exempt from any other taxation than that to which they were subjected, at least, that so much of the road of the company as originally belonged to those consolidating companies is thus exempt.

It is not questioned by counsel on either side that the charter of a private corporation is a contract between the State and its corporators, and protected under the Constitution of the United States, like any other contract, from legislation impairing its obligation. This has been so often decided, that its statement is only the repetition of an admitted legal principle. The only question for serious inquiry, where legislation affecting the charter is the subject of complaint, is whether it does in fact impair the obligation of the contract; for there may be legislation touching the powers of the corporation which will not have that result. Nor is it questioned by counsel that the taxation, both in its made and extent, may be so prescribed in the charter as to preclude any subsequent interference by the State with either. Repeated decisions of this court have so adjudged; though the right of one legislature to bind its successors in the exercise of its power of taxation, which is an essential attribute of sovereignty, has met with frequent earnest dissent from a minority of the court.

The provision in the charters of the two original companies was a clear conditional limitation upon the power of the State to tax them. Language could not be made more direct and positive. Only upon the annual net income received from the roads of the companies bove the ten per cent paid to the stockholders could a tax be imposed by the State, and then only a portion of such net income could be exacted. 'No other tax,' said the charter, should ever be levied or assessed on the corporations, or any of their privileges or franchises. So long as these companies were distinct corporations, only the tax thus prescribed could be imposed upon them. But, when they were merged in the new corporation, their distinct corporate existence ceased, except so far as their existence might be necessary for the protection of their creditors or mortgagees, or those of the new corporation. The conditions upon which the limitation of taxation was prescribed could be performed only while the companies were distinct corporations operating separate lines. Those companies only were required to keep an account of their disbursements, expenditures, and receipts, for the inspection of the governor and council, and committees of the legislature. Their treasurers only were bound to render to the legislature, at the expiration of every year, exhibits under oath of the net profits of their roads. Their directors only were called upon to make a special report to the legislature, whenever their annual income amounted to ten per cent upon the cost and expenses of their roads. It was only upon such report that the legislature was to determine the portion of the income which should be received in lieu of other taxes. The new company was subject to no such duty of keeping an account of the expenditures and receipts of the original lines; its directors were not called upon to make any report as to the income of such lines; nor was its treasurer required to make any annual exhibit of the net profits derived from them. The assets of all the companies were intermingled; and continuous trains were run over the whole length of the several roads. It would have been impossible to show what would have been the profits of each road without the consolidation. Only an approximation to them would have been attainable; and that would have been based upon estimates more less speculative in their character.

The consolidation of the original companies was a voluntary proceeding on their part. The law made it dependent upon their agreement; and that law was presumably passed upon their request, as they are named in it, and they acted under it. Having thus disabled themselves from a compliance with the conditions, upon the performance of which the amount to be paid as a tax to the State could be ascertained, they must be considered as having waived the exemption dependent upon such performance. Their exemption was qualified by their duties, and dependent upon them. They incapacitated themselves from the performance of those duties by a proceeding which they supposed would give them greater advantages than they possessed in their separate condition, and they thus lost their exemption. The new company was not charged with the duties which they were to perform to the State, and by which the State was to be governed in its taxation, nor was the State under any obligation to accept a substituted performance from other parties.

The provision in the act authorizing the consolidation, that the new company should have all the powers, privileges, and immunities of the original companies, must, therefore, be taken with the qualification that it should have them so far as they could be exercised or enjoyed by it, with its different officers and distinct constitution. Where their exercise or enjoyment required other officers or a different constitution, the grant was to that extent necessarily inoperative.

The Maine Central Railroad Company was, upon the consolidation of the original companies, a new corporation, as distinct from them as though it had been created before their existence. The fact that the powers, privileges, and immunities which they had possessed were conferred upon the new company, so far as they could be exercised or enjoyed by it, in no respect affected its character as a distinct body. A new corporation may be as readily created by the union of two or more corporations as by the union of individuals; and its powers and privileges may as well be designated by reference to the charters of other companies as by special enumeration.

It follows that the limitation of the taxing power of the State to a portion of their net income prescribed in the charters of the old companies ceased upon their consolidation into the Maine Central. When this new company came into existence, it became subject to the provisions of the general law of 1831, which declared that any act of incorporation subsequently passed should at all times thereafter 'be liable to be amended, altered, or repealed, at the pleasure of the legislature, in the same manner as if an express provision to that effect were therein contained, unless there shall have been inserted in such act of incorporation an express limitation or provision to the contrary.' Although this provision could not bind any succeeding legislature which might choose to disregard it, so long as it remained unrepealed, subsequent legislation not repugnant to it was controlled by it, and must be construed and enforced in connection with it. There was no limitation in the act authorizing the consolidation, which was the act of incorporation of the new company, upon the legislative power of amendment and alteration, and, of course, there was none upon the extent or mode of taxation which might be subsequently adopted. By the reservation in the law of 1831, which is to be considered as if embodied in that act, the State retained the power to alter it in all particulars constituting the grant to the new company, formed under it, of corporate rights, privileges, and immunities. The existence of the corporation, and its franchises and immunities, derived directly from the State, were thus kept under its control. Rights and interests acquired by the company, not constituting a part of the contract of incorporation, stand upon a different footing. But no such rights or interests are here involved. New Jersey v. Yard, 95 U.S. 104; Tomlinson v. Jessup, 15 Wall. 454.

The several cases cited by counsel from the decisions of this court, upon the effect of consolidating several companies where some of them possess an immunity from taxation, do not militate against the views here expressed. They are The Delaware Railroad Tax, 18 Wall. 206; Central Railroad & Banking Co. v. Georgia, 92 U.S. 665; and Chesapeake & Ohio Railroad Co. v. Virginia, 94 U.S. 718. In the Delaware Railroad Tax Case, it appeared that three companies-one of which owned a railroad in Pennsylvania, one a railroad in Maryland, and one a railroad in Delaware-were consolidated into one company under the legislation of those States. The act of the legislature of Delaware declared that the respective companies should constitute one company, and be entitled to all the rights, privileges, and immunities which each and all of them possessed and enjoyed under their respective charters; and one of those charters, which was granted by Maryland, had exempted the shares of the capital stock of its company from taxation. It was held that the provision in the Delaware act in no respect affected its power of taxation upon the property of the new company in that State; that the new company stood in each State as the original company had previously stood in that State, invested with the same rights and subject to the same liabilities; and that it was not the intention of either State to enforce within its limits the legislation of the other. This decision has no bearing upon the questions involved in the present case.

In Central Railroad & Banking Co. v. Georgia, it was held that the consolidation of two railroad companies did not necessarily work a dissolution of both and the creation of a new corporation; that whether such would be its effect depended upon the legislative intent manifested in the statute under which the consolidation took place; that, in the case under consideration, the two companies there mentioned were not dissolved by their consolidation; that the consolidated company continued to possess all the rights and immunities which were conferred upon each company by its original charter; and, inasmuch as one of the companies was exempted from liability to any greater tax than one-half of one per cent of its net annual income, the exemption continued after the consolidation. The State, in that case, claimed that a new company was the result of the consolidation, and that its charter was then subject to repeal or modification, at the will of the legislature. The court replied, that if the charter of the company having the exemption had been surrendered, and a new corporation created by the consolidation, the consequences claimed by the State 'might and probably would follow.' There is nothing in this decision which touches the case at bar.

In Chesapeake & Ohio Railroad Co. v. Virginia, it was held that a railroad corporation, formed under an act of the legislature by the consolidation of existing companies, and 'vested with all the rights, privileges, franchise, and property which may have been vested in either company prior to the act of consolidation,' acquired no greater immunity from taxation than had been severally enjoyed by the original companies as to the portions of the road belonging to them, and that whatever property had been subject to taxation previous to the consolidation remained so afterwards. This decision has no application to the questions involved in the case before us. In none of these cases were duties required of the original companies and their directors and officers, which could not have been equally discharged by the new companies, nor was the extent or mode of taxation made dependent upon information to be imparted by officers who, upon the consolidation of the companies, had ceased to exist.

We have in this opinion made no reference to the charters of the three railroad companies which were consolidated with the Maine Central Company in 1874. It is admitted that the charters of two of them contained no limitation upon the taxing power of the State. The third company, incorporated in 1836, obtained, by an act passed in 1845, a conditional exemption from taxation, like that in the charters of the two companies in the first consolidation. A mortgage upon its road and franchise was, in 1862, foreclosed by the mortgagees, who acquired the property and formed a new corporation. This new corporation was, by the statute which authorized it, declared invested with the legal rights and immunities of the original corporation. When it afterwards consolidated with the Maine Central, its rights and immunities passed to that company, only to the extent and subject to the same limitations as those of the original two companies.

It follows that there is no error in the judgment of the Supreme Court of Maine; and it is, therefore,

Affirmed.

MR. JUSTICE STRONG dissented.


text: Talk:Railroad Company v. Maine/Opinion of the Court

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text:
Atherton v. Fowler (96 U.S. 513)

ERROR to the Supreme Court of the State of California.

The facts are stated in the opinion of the court.

Mr. Montgomery Blair for the plaintiff in error.

Mr. S. F. Phillips, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Atherton v. Fowler (96 U.S. 513)


text: Talk:Atherton v. Fowler (96 U.S. 513)

title: Talk:Atherton v. Fowler (96 U.S. 513)


text:
Atherton v. Fowler (96 U.S. 513)/Opinion of the Court

This case originates in an action of replevin brought by Page, who died during the progress of the litigation, and is now represented by Atherton, his executor, the plaintiff in error. The plaintiff below obtained possession of the hay, which was the subject of the writ of replevin; but, on trial before a jury, they found he was not entitled to the possession, and judgment for the value of the hay was rendered against him. This judgment was affirmed on appeal to the Supreme Court of the State, and is now brought before us for review on questions which relate to the rights acquired in the soil from which the hay was cut, or rather which might have been acquired to such soil under acts of Congress.

The hay, which is the subject of controversy, was cut in the summer of 1863, on part of the land embraced within the Vallejo grant of the Soscol ranch.

The history of the title to that ranch is given in the report of Frisbie v. Whitney, 9 Wall. 187. The claim of Vallejo to the confirmation of the grant was finally decided against him in this court, March 22, 1862. By virtue of the thirteenth section of the act of Congress of March 3, 1851 (9 Stat. 633), the land embraced within his claim became public land of the United States whenever it was finally decided to be invalid. No public survey had been extended over these lands at that time, and the whole of the Soscol ranch was held in possession, and had been for years, under the Mexican patent to Vallejo, and by tenants or purchasers under his title.

Novertheless, a large unmber of persons who had previously no interest in or claim to or possession of any part of this land invaded it by force, tore down the fences, dispossessed those who occupied it, and built on and cultivated parts of it, under pretence of establishing a right of pre-emption to the several parts which they so seized. The general character of this movement is well described in Frisbie v. Whitney, supra.

The defendants in this case, though taking no part in the night invasion mentioned in that case, did, during the spring and summer of 1862 and 1863, enter upon the lands in the possession of Page,-land which in every instance was enclosed within fences, and which was in actual cultivation. And this entry was without asking the consent, or having in any way the permission, of those in possession, but by forcibly driving them out. The hay, which is the subject of the controversy, was cut from meadows or grounds set in grass by Page. These facts are stated, or evidence from which the jury had a right to infer them, in a case made by the parties, on which the Supreme Court finally decided it.

But Congress, on the third day of March, 1863, enacted that all settlers on the land claiming under Vallejo might enter the land held by them to the extent of their actual possession at $1.25 per acre, and have a patent for the same as soon as the surveys were extended over the ranch. So that, when the hay in controversy was cut, the defendants knew, or should have known, that they were mere trespassers on the lands of Page, and had no right to the hay.

It is, however, to be considered that there is the doctrine that a person having the legal title to land, but out of possession, cannot maintain the action of replevin for hay or timber cut on the land. This general doctrine has been modified both by statute and by judicial decision in the several States, until it is not easy to say exactly how much of it is left in any one of the States. In the case before us, the court, on the trial, gave the law on the subject very clearly; and, as it is a doctrine not affected by the Constitution or laws of the United States, we must take it to have been correctly expounded to the jury.

The court instructed them, that, if plaintiff was in the actual possession of the land when the defendants entered, there was no disseisin; and the subsequent possession of defendants did not oust that of the plaintiff, unless they found that they had entered in good faith, with intent to pre-empt the land on which the hay was cut, and that they had the actual possession of it at the time the hay was cut. To the last part of this instruction plaintiff excepted. The court also said: 'If you believe from the evidence that the defendants entered in good faith, with intention to pre-empt the land on which the hay was cut, and had actual possession of it at the time the hay was cut, your verdict should be for the defendants.'

The plaintiff asked the court to charge the jury, that, if he was in the actual possession of the land, having cultivated it for several years previously, and the defendants broke through his enclosure against his consent, the entry was unlawful, though the land might be public land, the prior right of pre-emption belonging to him who had the prior and continued possession. This the court refused.

In short, it is obvious that the case was made by the court to turn on the assumption that the land was, in its then condition, liable to be pre-empted by defendants, against the wishes of plaintiff, and that, to effect the entry and cultivation necessary to establish the right of pre-emption, the defendants could, by force and violence and by breaking into an actual enclosure and by turning the plaintiff out, acquire such right of pre-emption, and at the same time a bona fide possession.

Unless the laws of the United States justify this conduct, the instructions of the court were erroneous, and to the prejudice of the plaintiff in a matter involving his rights under the acts of Congress.

At the time this action was tried, Page had obtained title to the land under the act of March 3, 1865. This related back to his possession under the Vallejo grant; and the title in this action was not disputed. It was simply a question before the court in that trial, therefore, whether the intention to pre-empt the land changed what would otherwise have been a mere trespass into a bona fide possession which would defeat the present action.

Undoubtedly, there have been cases, and may be cases again, where two persons making settlement on different parts of the same quarter-section of land may present conflicting claims to the right of pre-emption of the whole quarter-section, and neither of them be a trespasser upon the possession of the other, for the reason that the quarter-section is open, unenclosed, and neither party interferes with the actual possession of the other. In such cases, the settlement of the later of the two may be bona fide, for many reasons. The first party may not have the qualifications necessary to a pre-emptor, or he may have pre-empted other land, or he may have permitted the time for filing his declaration to elapse, in which case the statute expressly declares that another person may become pre-emptor, or it may not be known that the settlements are on the same quarter. Johnson v. Towsley, 13 Wall. 72; sect. 15, act of Sept. 4, 1841, 5 Stat. 455.

But all these cases suppose that the parties began their possession and made their settlements and built their houses on lands not in the actual possession of another. It is not to be presumed that Congress intended, in the remote regions where these settlements are made, to invite forcible invasion of the premises of another, in order to confer the gratultous right of preference of purchase on the invaders. In the parts of the country where these pre-emptions are usually made, the prorection of the law to rights of person and property is generally but imperfect under the best of circumstances. It cannot, therefore, be believed, without the strongest evidence, that Congress has extended a standing invitation to the strong, the daring, and the unscrupulous to dispossess by force the weak and the timid from actual improvements on the public land, in order that the intentional trespasser may secure by these means the preferred right to buy the land of the government when it comes into market.

A careful examination of the laws concerning the survey and sale of our public lands will show that nothing of this kind is sanctioned, and that so many other ways are open to purchasers of these lands that no such proceeding is necessary to enable any one to secure his rights. In the earliest stages of our land system no right or interest could be secured by the individual in any public land until it had been surveyed into legal subdivisions. Nor after this had been done was it subject to sale, until, by a proclamation of the President, it was brought into market. This prociamation always fixed a time and place when the lands within a given district were to be offered for sale at public auction; and until all of them were sold which could be sold in this manner, at prices above the minimum fixed by law, no one could make a private entry of a particular tract, or establish a claim to it. The scenes of violence, fraud, and oppression, and the combinations which attended these sales, and the wrongs perpetrated under them, led to the law of pre-emption. It often occurred that emigration, in advance of the readiness of the public lands for these sales, had caused hundreds and thousands to settle on them; and, when they came to be sold at public auction, their value, enhanced by the houses, fences, and other improvements of the settler, placed them beyond his reach, and they fell into the hands of heartless speculators. To remedy this state of things the pre-emption system was established. This, at first, was only applicable to lands which had been surveyed. But gradually this was changed, until, in 1862, pre-emptions were allowed, under proper restrictions, on unsurveyed lands as well as those surveyed. Act of June 2, 1862, 12 Stat. 418.

It may, therefore, be said that at the time the transactions occurred of which we are speaking there were three modes of securing title to public lands: 1. By purchase at the public land sales ordered by the President. 2. By private entry; that is, by going to the land-officer and paying at the rate of $1.25 or $2.50 per acre for any land subject to private entry or sale at those rates respectively. 3. By pre-emption.

Both the former modes contemplated the immediate payment of the money, and the right of the party to the land was fixed when this was done. He had then a vested interest, which became a perfect legal title when he received his patent. This was usually after such delay as was necessary to ascertain if there were any conflicting claims or rights to the land.

But the pre-emption of land did not require or admit of payment at the time the right of pre-emption was exercised. The land might not have been surveyed, and then it could not be identified or described so as to cause a patent to issue on it. The law also intended to give the settler time to build a house, break up the ground, and make a settlement first and payment afterwards.

During this preliminary period he had no vested right to the land; but, as we have elsewhere decided, he did thus acquire the right of preference in the purchase. That is to say, if he made the necessary settlement and improvement, and the necessary declaration in writing, no other person could buy the land until the period elapsed which the law gave him to pay the purchase-money. Frisbie v. Whitney, 9 Wall. 187; Hutchings, v. Low, 15 id. 77.

Among the things which the law required of a pre-emptor, and the principal things required of him to secure his right, were: 1. To make a settlement on the land in person. 2. To inhabit and improve the same. 3. To erect a dwelling-house thereon. Sect. 2259, Rev. Stat.

At the moment the land on which the hay in this case was cut became liable to pre-emption, the whole of it was, by the various persons claiming under Vallejo, 1, settled on by them in person; 2, inhabited and improved by them; and, 3, it had dwellings erected on it by them.

Unless some reason is shown, not found in this record, these were the persons entitled to make pre-emption, and no one else. But suppose they were not. Does the policy of the pre-emption law authorize a stranger to thrust these men out of their houses, seize their improvements, and settle exactly where they were settled, and by these acts acquire the initiatory right of pre-emption? The generosity by which Congress gave the settler the right of pre-emption was not intended to give him the benefit of another man's labor, and authorize him to turn that man and his family out of their home. It did not propose to give its bounty to settlements obtained by violence at the expense of others. The right to make a settlement was to be exercised on unsettled land; to make improvements on unimproved land. To erect a dwelling-house did not mean to seize some other man's dwelling. It had reference to vacant land, to unimproved land; and it would have shocked the moral sense of the men who passed these laws, if they had supposed that they had extended an invitation to the pioneer population to acquire inchoate rights to the public lands by trespass, by violence, by robbery, by acts leading to homicides, and other crimes of less moral turpitude.

We have not been able to find any decision of the courts directly in point on this question. But in the case of the United States v. Stanley (6 McLean, 409), Mr. Justice McLean gave expression to the opinion, that, where a man was engaged in erecting a house in order to make a pre-emption claim to lands purchased of the Miami Indians, another person, who by force turned him out of the house, and having finished it took up his residence there, could not by that proceeding acquire a valid settlement, unless the other party voluntarily withdrew all claim to the property. The case in regard to the trespass is very like the one before us, and though the validity of the entry of the trespasser was only remotely in question, the remark of the learned justice, who was familiar with the laws regulating the sales of public lands, is entitled to respect.

So, also, in the case of Frisbie v. Whitney, before mentioned, this court said, that while it was not necessary to decide it, there were serious difficulties in regard to complainant's right to make a valid pre-emption by a forcible intrusion upon land cultivated, enclosed, and peaceably occupied by another man.

In the present case, we are met with that question directly in our way, and we are of opinion that it cannot be done.

It follows that the defendants could not have made any lawful eatry on the lands where the hay was cut in this case; that no law existed which gave them any right to make such an entry; that they were mere naked trespassers, making an unwarranted intrusion upon the enclosure of another,-an enclosure and occupation of years, on which time and labor and money had been expended,-and that in such a wrongful attempt to seize the fruits of other men's labor there could be no bona fide claim of right whatever. The instruction of the court that this could be done, founded on an erroneous view of the pre-emption law, was itself erroneous, and the judgment founded on it must be reversed.

The judgment of the Supreme Court of California will, therefore, be reversed, and the case remanded with instruction to order a new trial, and for further proceedings in conformity with this opinion; and it is

So ordered.


text: Talk:Atherton v. Fowler (96 U.S. 513)/Opinion of the Court


text:
Railroad Company v. Richmond (96 U.S. 521)

ERROR to the Supreme Court of Appeals of the State of Virginia.

The Richmond, Fredericksburg, and Potomac Railroad Company was incorporated Feb. 25, 1834, by the legislature of the State of Virginia, 'for the purpose of making a railroad from some point within the corporation of Richmond, to be approved by the common council, to some point within the corporation of Fredericksburg' (charter, sect. 1), and was authorized (sect. 24) 'to place on the railroad constructed. . . all machines, wagons, vehicles, carriages, and teams of any description whatsoever,. . . necessary or proper for the purposes of transportation.' It was required at all times to transport persons and property from one point to another along the line of its road, when completed, upon payment or tender of the tolls allowed by the charter. Sect. 26.

At the time of the incorporation of the company, locomotive engines were in use within the State of Virginia, upon a railroad extending from the Roanoke to Petersburg; and the city of Richmond was a municipal corporation, having power 'to make and establish such by-laws, rules, and ordinances, not contrary to the Constitution or laws of the Commonwealth, as shall. . . be thought necessary for the good ordering and government of such persons as shall from time to time reside within the limits of said city or corporation, or shall be concerned in interest therein.' 1 Hening Stat. 46, sect. 2.

On the 22d of December, 1834, the president and directors of the railroad company passed the following preamble and resolution: -'Whereas, by the act incorporating this company, it is requisite that the point at which the railroad terminates within the corporation of Richmond should be approved by the common council, and it appears to the board most expedient to conduct the same from the Richmond turnpike along H [Broad] Street to a point at or near the intersection of the said street and Eighth Street, and for the present to terminate the same by suitable connection with the contemplated warehouses and workshops of the company on lots Nos. 477 and 478, purchased by them from John Heth: Therefore, be it

'Resolved, that the approbation of the common council be requested to the above plan.'

On the 23d of the same month, the common council of the city passed the following:--

'Whereas, by a resolution of the president and directors of the Richmond, Fredericksburg, and Potomac Railroad Company, submitted to the common council, it appears it is deemed most expedient by the said president and directors to conduct the said railroad from the Richmond turnpike along H [Broad] Street to a point at or near the intersection of the said street and Eighth Street, and for the present to terminate the same by suitable connections with the contemplated warehouses and workshops of the company on lots Nos. 477 and 478, purchased by them from John Heth.

'Resolved, that the common council do approve the proposed location of the said railroad and the present termination of the same, as described in the foregoing resolution, and authorize the prosecution of the said work within the limits of the city on the above location: Provided, that in locating the said railroad no injury shall be done to the water-pipes now laid in and along said street: Provided, that the corporation of Richmond shall not be considered as hereby parting with any power or chartered privilege not necessary to the railroad company for constructing the said railroad, and connecting the same with the depot of said company within the limits of the city.'

The railroad company then proceeded with the construction of its road, which was completed and ready for use within the city on the 15th of February, 1836. Shortly before the day, a meeting was held by some of the residents of Shockhoe Hill, at which resolutions were passed, declaring that in the opinion of the meeting the company should not be permitted to use locomotive power for propelling cars within the city, and that it 'should be required to construct and keep in good order a free access and passing at all points from the one side of H [Broad] Street to the other.' These resolutions were presented to the council, and referred to the street commissioners with instructions to ascertain and report what injury had been done to the street by laying down the railroad in it, and also what were the future plans of the company, so far as they related to the used of the road, and the probable result to the citizens resident and owning property on the street, by the execution of the plans and operations of the company.

This action of the council was communicated to the company on the day it commenced the business of transportation over the road; and, in reply, the president and directors made a statement, of which the following is part:--

'The railroad having been made along H [Broad] Street from a point approved by the common council, the president and directors, under power given by the act of incorporation, have purchased and placed on the railroad a locomotive engine and other machines proper for the purposes of transportation. Their plan, so far as the same relates to travel on said road on H [Broad] Street, is to have the cars drawn by a locomotive. It has occurred to them that it might not be prudent for the locomotive to go so fast within the corporation as it will after leaving the city, and accordingly they have adopted a resolution directing their engineer not to suffer the locomotive, while in the city, to proceed at a rate exceeding three miles per hour.'

Then follows a statement of the plan they had adopted for facilitating the crossing of the track in the street, and the reasons for it.

Upon the receipt of this communication from the company, the council adopted resolutions instructing the commissioners of streets to inquire into the expediency of paying H [Broad] Street, and to ascertain from the company whether they would pay part of the expense attending it. After a correspondence between the commissioners of streets and the committee of the company, showing the views of each side, the city surveyor was instructed by the commissioners of streets 'to prepare and submit a plan, the most judicious to be adopted, for paving H [Broad] Street,. . . having a regard as well to the just rights and interests of the city as to those of the railroad company in the use of said street.' The city surveyor accordingly submitted a report, in which, after setting forth the inconveniences which would result to the railroad company by 'a uniform pavement on a level with the top of the plates of the railroad,' submitted a plan 'as a compromise of interests.' This plan was finally adopted by both parties and the work done, the railroad company, by arrangement, paying one-third the expense. That ended all action upon the resolutions adopted at the meeting of residents on Shockhoe Hill. The amount paid by the railroad company towards the paving was near $7,000.

At different times after this, applications were made to the council to prohibit the use of locomotives in the street; but the council, while asserting its right to do so, declined to take action in the matter, upon the ground that it was not expedient. Ordinances were, however, passed regulating the speed of trains and providing against standing cars in the street.

On the 24th of May, 1870, an amendment was made to the charter of the city, and the council empowered 'to determine and designate the route and grade of any railroad to be laid in said city, and to restrain and regulate the rate of speed of locomotives, engines, and cars upon the railroad within the said city, and. . . exclude the said engines and cars, if they pleased, provided no contract be thereby violated.' Acts of 1869-70, p. 125.

On the 8th of September, 1873, after the main line of the railroad had been changed to another route, and negotiations for the sale of the depot property by the company to the city had failed, the council passed an ordinance, as follows:--

'SECT. 3. That on and after the first day of January, 1874, no car, engine, carriage, or other vehicle of any kind belonging to or used by the Richmond, Fredericksburg, and Potomac Railroad Company, shall be drawn or propelled by steam upon that part of their railroad or railway track on Broad Street east of Belvidere Street in said city. The penalty for failing to comply with this section shall be a fine of not less than $100 nor more than $500 for each and every offence, to be recovered before the police justice of the city of Richmond.'On the 2d of January, 1874, this action was commenced to recover the penalty incurred under the ordinance for running a locomotive propelled by steam in the street. There was no dispute as to the facts; but the defence relied upon was, that the ordinance was unconstitutional and void, because,-1, It impaired the obligations of the contract contained in the charter of the company, which, as was claimed, granted to the company the right to propel its cars by steam, as well within the city as without; 2, it deprived the company of its property without due process of law; and, 3, it denied the company the equal protection of the laws.

This defence having been overruled, and judgment given against the company by the police justice, the case was taken by writ of error, first, to the Circuit Court of the city, and, second, to the Supreme Court of Appeals of the State, in both of which courts the judgment below was affirmed. The judgment of the Court of Appeals is now here for review, under sect. 709 of the Revised Statutes, and the errors assigned present the same questions that were relied upon in defence below.

Mr. Conway Robinson and Mr. Leigh Robinson for the plaintiff in error.

1. The ordinance of the city council of Richmond, prohibiting the use of locomotive engines on the railroad of the plaintiff in error on Broad Street impairs the obligation of the contract contained in the charter of the company granted by the legislature of the State of Virginia. Cooley, Const. Lim. 87, 88, 274, 279; People v. Draper, 15 N. Y. 532; Trustees of Dartmouth College v. Woodward, 4 Wheat. 519; Planters' Bank v. Sharp, 6 How. 301; Fletcher v. Peck, 6 Cranch, 87; Terrett v. Taylor, 9 id. 43; New Jersey v. Wilson, 7 id. 164; Gordon & Chester v. Appeal Tax Court, 3 How. 133; State Bank of Ohio v. Knoop, 16 id. 369; City of Richmond v. Richmond & Danville Railroad Co., 21 Gratt. (Va.) 604; State v. Noyes, 47 Me. 189; O'Connor v. Pittsburgh, 18 Pa. St. 187; James River & Kanawha Canal Co. v. Anderson et al., 12 Leigh (Va.), 278; McLauchlin v. Railroad Co., 5 Rich. (S.C..) 596; Hammersmith & City Railway Co. v. Brand, 4 Law Rep. H. L. 738; Enfield Tollbridge Co. v. Hartford & New Haven Railroad Co., 17 Conn. 454; Black v. Philadelphia & Reading Railroad Co., 58 Pa. St. 249; Vaughan v. Taff Vale Railway Co., 5 H. & N. 678; Mercer v. Pittsburg, Fort Wayne, & Chicago Railroad Co., and Commonwealth v. Same, 36 Pa. St. 99; New Jersey Railroad & Transportation Co. v. Jersey City, 29 N. J. L. 170.

To justify the exercise, even by the State, of any such police power, so as to impair the franchise conferred by her legislative contract, there must be not only compensation made to the company, but also unquestionable proof that its exercise is necessary for the protection of the lives and property of its citizens from certain and imminent danger. Black v. Philadelphia & Reading Railroad Co., 58 Pa. St. 249; Drake v. Hudson River Railroad Co., 7 Barb. (N. Y.) 508; Commonwealth v. Erie & North-East Railroad Co., 27 Pa. St. 339; Mifflin v. Railroad Company, 16 Pa. St. 182; Philadelphia & Trenton Railroad Co., 6 Whart. (Pa.) 25; Bell v. Ohio & Pennsylvania Railroad Co., 25 Pa. St. 161; Lexington & Ohio Railroad Co. v. Applegate, 8 Dana (Ky.), 289; State v. Noyes, 47 Me. 189; Hentz v. Long Island Railroad Co., 13 Barb. (N. Y.) 646; Bailey v. ''Philadelphia, &c. Railroad Co.'', 4 Harr. (Del.) 389; Pingry v. Washburn, 1 Aik. (Vt.) 264; Miller v. New York & Erie Railroad Co., 21 Barb. (N. Y.) 513; People v. Jackson & Michigan Plank Road Co., 9 Mich. 285; Benson v. The Mayor, &c., 10 Barb. (N. Y.) 223.

2. That ordinance also impairs the obligation of the contract between the city and the company. Mercer v. Pittsburg, Fort Wayne, & Chicago Railroad Co., 36 Pa. St. 99; State v. Noyes, 47 Me. 189.

3. The ordinance is unconstitutional and void, because, assuming to act under authority of the State, the council thereby 'denies' to the plaintiff in error that 'equal protection of the laws' guaranteed to it in the Fourteenth Amendment of the Constitution of the United States. Fletcher v. Peck, 6 Cranch, 87; Calder v. Bull, 3 Dall. 386; Booth v. Woodbury, 32 Conn. 118; Lin Sing v. Washburn, 20 Cal. 534; Holden v. James, 11 Mass. 396; Davison v. Johonnot, 7 Metc. (Mass.) 393; Bull v. Conroe, 13 Wis. 233; Walley's Heirs v. Kennedy, 2 Yerg. (Tenn.) 554; The King v. Pease, 1 Nev. & M. 690; 4 Barn. & Adol. 30; Vaughan v. Taff Vale Railway Co., 5 H. & N. 678; Cleveland & Pittsburg Railroad Co. v. Speer, 56 Pa. St. 325; Clark v. ''Mayor, &c. of Syracuse'', 13 Barb. (N. Y.) 32.

Mr. A. M. Keiley, contra.

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


text: Talk:Railroad Company v. Richmond (96 U.S. 521)


text:
Railroad Company v. Richmond (96 U.S. 521)/Opinion of the Court

The questions for determination in this case are:--

1. Does the municipal legislation complained of impair the vested rights of the company under its charter?

In answering this question, it becomes necessary to determine at the outset what the rights of the company, secured by its charter and affected by the ordinance in dispute, actually are. The right is granted the company to construct a railroad 'from some point within the corporation of Richmond, to be approved by the common council.' No definite point is fixed by the charter. That is left to the discretion of the company, subject only to the approval of the city. The power to approve certainly implies the power to reject one location and accept another; and this necessarily carries with it the further power to reserve such governmental control over the company in respect to the road, when built within the city to the point approved, as may seem to be necessary. The absolute grant of the charter is satisfied if the road is built within the city for any distance, by any route, or to any point. The company, however, desired to pass through Broad Street, and, for the present, to terminate the road upon the lots purchased for shops and werehouses, and requested the city to approve that location. This the city was willing to do, upon condition that it should not be considered as thereby parting with any power or chartered privilege not necessary to the company for constructing its road or connecting it with the depot. These terms were proposed to the company, and accepted. At that time the city was invested with all the powers 'necessary for the good ordering and government' of persons and property within its jurisdiction. By the conditions imposed, these powers were all reserved, except to the extent of permitting the company to construct its road upon the route designated, and connect it with the depot. All the usual and ordinary powers of city governments over the road when constructed, and over the company in respect to its use, were expressly retained. The company, therefore, occupied Broad Street upon the same terms and conditions it would if the charter had located the route of the road within the city, but, in terms, subjected the company to the government of the city in respect to the use of the road when constructed.

Nothing has been done since to change the rights of the parties. It is true that an attempt was made by the residents on Shockhoe Hill to induce the council to prohibit the use of locomotives within the city, and to require the company to so construct the road within Broad Street as to facilitate the crossing of the track; but all parties seemed to be satisfied then with the proposition of the company to run its engines slowly and with care in the city, and its liberal contribution towards the expense of paving the street. There is nowhere in the proceedings an indication of a relinquishment by the city of its governmental control over the company or its property. The 'compromise of interests' proposed related alone to the plan of the pavement.

It remains only to consider whether the ordinance complained of is a legitimate exercise of the power of a city government. It certainly comes within the express authority conferred by the amendment to the city charter adopted in 1870; and that, in our opinion, is no more than existed by implication before. The power to govern implies the power to ordain and establish suitable police regulations; and that, it has often been decided, authorizes municipal corporations to prohibit the use of locomotives in the public streets, when such action does not interfere with vested rights. Donnaher v. The State, 8 Smed. & M. (Miss.) 649; Whitson v. The City of Franklin, 34 Ind. 392.

Such prohibitions clearly rest upon the maxim sic utere tuo ut alienum non laedas, which lies at the foundation of the police power; and it was not seriously contended upon the argument that they did not come within the legitimate scope of municipal government, in the absence of legislative restriction upon the powers of the municipality to that effect. It is not for us to determine in this case whether the power has been judiciously exercised. Our duty is at an end if we find that it exists. The judgment of the court below is final as to the reasonableness of the action of the council.

We conclude, therefore, that the ordinance does not impair any vested right conferred upon the company by its charter.

2. Does it deprive the company of its property without due process of law?

This question is substantially disposed of by what has already been said, as the claim of the company is based entirely upon the assumption of a vested right, under its charter, to operate its road by steam, both within and without the city, which we have endeavored to show is not true. All property within the city is subject to the legitimate control of the government, unless protected by 'contract rights,' which is not the case here. Appropriate regulation of the use of property is not 'taking' property, within the meaning of the constitutional prohibition.

3. Does it deny the company the equal protection of the laws?

The claim is, that, as this company is alone named in the ordinance, the operation of the ordinance is special only, and, therefore, invalid. No other person or corporation has the right to run locomotives in Broad Street. Consequently, no other person or corporation is or can be in like situation, except with the consent of the city. On this account, the ordinance, while apparently limited in its operation, is in effect general, as it applies to all who can do what is prohibited. Other railroad companies may occupy other streets and use locomotives there; but other streets may not be situated like Broad Street, neither may there be the same reasons why steam transportation should be excluded from them. All laws should be general in their operation, but all places within the same city do not necessarily require the same local regulation. While locomotives may with very great propriety be excluded from one street, or even from one part of a street, it would be sometimes unreasonable to exclude them from all. It is the special duty of the city authorities to make the necessary discriminations in this particular.

On the whole, we see no error in the record, and the judgment is

Affirmed.

MR. JUSTICE STRONG dissented.


text: Talk:Railroad Company v. Richmond (96 U.S. 521)/Opinion of the Court


text:
Moore v. Robbins (96 U.S. 530)

ERROR to the Supreme Court of the State of Illinois.

The facts are stated in the opinion of the court.

Mr. Philip Phillips for the plaintiff in error.

Mr. R. E. Williams, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Moore v. Robbins (96 U.S. 530)


text: Talk:Moore v. Robbins (96 U.S. 530)

title: Talk:Moore v. Robbins (96 U.S. 530)


text:
Moore v. Robbins (96 U.S. 530)/Opinion of the Court

This case is brought before us by a writ of error to the Supreme Court of the State of Illinois.

In its inception, it was a bill in the Circuit Court for De Witt County, to foreclose a mortgage given by Thomas I. Bunn to his brother Lewis Bunn, on the south half of the south-east quarter and the south half of the south-west quarter of section 27, township 19, range 3 east, in said county. In the progress of the case, the bill was amended so as to allege that C. H. Moore and David Davis set up some claim to the land; and they were made defendants, and answered.

Moore said that he was the rightful owner of forty acres of the land mentioned in the bill and mortgage, to wit, the south-west quarter of the south-west quarter of said section, and had the patent of the United States giving him the title to it.

Davis answered that he was the rightful owner of the south-east quarter of said south-west quarter of section 27. He alleges that John P. Mitchell bought the land at the public sale of lands ordered by the President for that district, and paid for it, and had the receipt of the register and receiver, and that it was afterwards sold under a valid judgment and execution against Mitchell, and the title of said Mitchell came by due course of conveyance to him, said Davis.

It will thus be seen, that, while Moore and Davis each assert title to a different forty acres of the land covered by Bunn's mortgage to his brother, neither of them claim under or in privity with Bunn's title, but adversely to it.

But as both parties assert a right to the land under purchases from the United States, and since their rights depend upon the laws of the United States concerning the sale of its public lands, there is a question of which this court must take cognizance.

As regards Moore's branch of the case, it seems to us free from difficulty.

The evidence shows that the forty acres which he claims was struck off to him at a cent or two over $2.50 per acre, at a public land sale, by the officers of the land district at Danville, Ill., Nov. 15, 1855; that his right to it was contested before the register and receiver by Bunn, who set up a prior pre-emption right. Those officers decided in favor of Bunn; whereupon Moore appealed to the Commissioner of the General Land-Office, who reversed the decision of the register and receiver, and on this decision a patent for the land was issued to Moore, who has it now in his possession.

Some time after this patent was delivered to Moore, Bunn appealed from the decision of the commissioner to the Secretary of the Interior, who reversed the commissioner's decision and confirmed that of the register and receiver, and directed the patent to Moore to be recalled, and one to issue to Bunn. But Moore refused to return his patent, and the Land Department did not venture to issue another for the same land; and so there is no question but that Moore is vested now with the legal title to the land, and was long before this suit was commenced. Nor is there, in looking at the testimony taken before the register and receiver and that taken in the present suit, any just foundation for Bunn's pre-emption claim. We will consider this point more fully when we come to the Davis branch of the case.

Taking this for granted, it follows that Moore, who has the legal title, is in a suit in chancery decreed to give it up in favor of one who has neither a legal nor an equitable title to the land.

The Supreme Court of Illinois, before whom it was not pretended that Bunn had proved his right to a pre-emption, in their opinion in this case place the decree by which they held Bunn's title paramount to that of Moore on the ground that to the officers of the Land Department, including the Secretary of the Interior, the acts of Congress had confided the determination of this class of cases; and the decision of the secretary in favor of Bunn, being the latest and the final authoritative decision of the tribunal having jurisdiction of the contest, the courts are bound by it, and must give effect to it. Robbins v. Bunn, 54 Ill. 48.

Without now inquiring into the nature and extent of the doctrine referred to by the Illinois court, it is very clear to us that it has no application to Moore's case. While conceding for the present, to the fullest extent, that when there is a question of contested right between private parties to receive from the United States a patent for any part of the public land, it belongs to the head of the Land Department to decide that question, it is equally clear that when the patent has been awarded to one of the contestants, and has been issued, delivered, and accepted, all right to control the title or to decide on the right to the title has passed from the land-office. Not only has it passed from the land-office, but it has passed from the Executive Department of the government. A moment's consideration will show that this must, in the nature of things, be so. We are speaking now of a case in which the officers of the department have acted within the scope of their authority The offices of register and receiver and commissioner are created mainly for the purpose of supervising the sales of the public lands; and it is a part of their daily business to decide when a party has by purchase, by pre-emption, or by any other recognized mode, established a right to receive from the government a title to any part of the public domain. This decision is subject to an appeal to the secretary, if taken in time. But if no such appeal be taken, and the patent issued under the seal of the United States, and signed by the President, is delivered to and accepted by the party, the title of the government passes with this delivery. With the title passes away all authority or control of the Executive Department over the land, and over the title which it has conveyed. It would be as reasonable to hold that any private owner of land who has conveyed it to another can, of his own volition, recall, cancel, or annul the instrument which he has made and delivered. If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and if the government is the party injured, this is the proper course.

'A patent,' says the court in United States v. Stone (2 Wall. 525), 'is the highest evidence of title, and is conclusive against the government and all claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. In England, this was originally done by scire facias; but a bill in chancery is found a more convenient remedy.' See also Hughes v. United States, 4 Wall. 232; S.C.. 11 How. 552.

If an individual setting up claim to the land has been injured, he may, under circumstances presently to be considered, have his remedy against the party who has wrongfully obtained the title which should have gone to him.

But in all this there is no place for the further control of the Executive Department over the title. The functions of that department necessarily cease when the title has passed from the government. And the title does so pass in every instance where, under the decisions of the officers having authority in the matter, a conveyance, generally called a patent, has been signed by the President, and sealed, and delivered to and accepted by the grantee. It is a matter of course that, after this is done, neither the secretary nor any other executive officer can entertain an appeal. He is absolutely without authority. If this were not so, the titles derived from the United States, instead of being the safe and assured evidence of ownership which they are generally supposed to be, would be always subject to the fluctuating, and in many cases unreliable, action of the land-office. No man could buy of the grantee with safety, because he could only convey subject to the right of the officers of the government to annul his title.

If such a power exists, when does it cease? There is no statute of limitations against the government; and if this right to reconsider and annul a patent after it has once become perfect exists in the Executive Department, it can be exercised at any time, however remote. It is needless to pursue the subject further. The existence of any such power in the Land Department is utterly inconsistent with the universal principle on which the right of private property is founded.

The order of the Secretary of the Interior, therefore, in Moore's case, was made without authority, and is utterly void, and he has a title perfect both at law and in equity.

The question presented by the forty acres claimed by Davis is a very different one. Here, although the government has twice sold the land to different persons and received the money, it has issued no patent to either, and the legal title remains in the United States. It is not denied, however, that to one or the other of the parties now before the court this title equitably belongs; and it is the purpose of the present suit to decide that question.

The evidence shows that on the same day that Moore bought at the public land sale the forty acres we have just been considering, Mitchell bought in like manner the forty acres now claimed by Davis; to wit, Nov. 15, 1855. He paid the sum at which it was struck off to him at public outcry, and received the usual certificate of purchase from the register and receiver. On the twentieth day of February, 1856, more than three months after Mitchell's purchase, Thomas I. Bunn appeared before the same register and receiver, and asserted a right, by reason of a pre-emption commenced on the eighth day of November, 1855, to pay for the south half of the south-west quarter and the south half of the south-east quarter of section 27, which includes both the land of Moore and Davis in controversy in this suit, and to receive their certificates of purchase. They accepted his money and granted his certificate. A contest between Bunn on the one side, and Moore and Mitchell on the other, as to whether Bunn had made the necessary settlement, was decided by those officers in favor of Bunn; and on appeal, as we have already shown, to the commissioner, this was reversed, and finally the Secretary of the Interior, reversing the commissioner, decided in favor of Bunn. But no patent was issued to Mitchell after the commissioner's decision, as there was to Moore; and the secretary, therefore, had the authority, undoubtedly, to decide finally for the Land Department who was entitled to the patent. And, though no patent has been issued, that decision remains the authoritative judgment of the department as to who has the equitable right to the land.

The Supreme Court of Illinois, in their opinion in this case, come to the conclusion that this final decision of the secretary is not only conclusive on the department, but that it also excludes all inquiry by courts of justice into the right of the matter between the parties.

The whole question, however, has been since that time very fully reviewed and considered by this court in Johnson v. Towsley, 13 Wall. 72. The doctrine announced in that case, and repeated in several cases since, is this:--

That the decision of the officers of the Land Department, made within the scope of their authority on questions of this kind, is in general conclusive everywhere, except when reconsidered by way of appeal within that department; and that as to the facts on which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in courts of justice, when the title afterwards comes in question. But that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and in cases where it is clear that those officers have, by a mistake of the law, given to one man the land which on the undisputed facts belonged to another, to give appropriate relief.

In the recent case of Shepley et al. v. Cowan et al. (91 U.S. 340), the doctrine is thus aptly stated by Mr. Justice Field: 'The officers of the Land Department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands, with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practised upon them, or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions; but, for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department.'

Applying to the case before us these principles, which are so well established and so well understood in this court as to need no further argument, we are of opinion, if we take as proved the sufficiency of the occupation and improvement of Bunn as of the date which he alleged, his claim is fatally defective in another respect in which the officers of the Land Department were mistaken as to the law which governed the rights of the parties, or entirely overlooked it.

In the recent case of Atherton v. Fowler (supra, p. 513), we had occasion to review the general policy and course of the government in disposing of the public lands, and we stated that it had formerly been, if it is not now, a rule of primary importance to secure to the government the highest price which the land would bring by offering it publicly at competitive sales, before a right to any part of it could be established by private sale or by pre-emption. In the enforcement of this policy, the act of Sept. 14, 1841, which for the first time established the general principle of pre-emption, and which has remained the basis of that right to this day, while it allowed persons to make settlements on the public lands as soon as the surveys were completed and filed in the local offices, affixed to such a settlement two conditions as affecting the right to a pre-emption. One of these was that the settler should give notice to the land-office of the district, within thirty days after settlement, of his intention to exercise the right of pre-emption, and the other we will give in the language of the fourteenth section of that act:--

'This act shall not delay the sale of any of the public lands of the United States beyond the time which has been or may be appointed by the proclamation of the President, nor shall any of the provisions of this act be available to any person who shall fail to make the proof of payment and file the affidavit required, before the commencement of the sale aforesaid.' 5 Stat. 457.

There can be no misconstruction of this provision, nor any doubt that it was the intention of Congress that none of the liberal provisions of that act should stand in the way of a sale at auction of any of the public lands of a given district where the purchase had not been completed by the payment of the price before the commencement of the sales ordered by the President's proclamation. We do not decide, because we have not found it necessary to do so, whether this provision is applicable under all the pre-emption laws passed since the act of 1841, though part of it is found in the Revised Statutes, sect. 2282, as part of the existing law. But we have so far examined all those laws enacted prior to November, 1855, the date of Mitchell's purchase, as to feel sure it was in full operation at that time. The act of March 3, 1853, extending the right of pre-emption to the alternate sections, which the government policy reserved in its numerous grants to railroads and other works of internal improvement, required the pre-emptor to pay for them at $2.50 per acre, before they should be offered for sale at public auction. 10 Stat. 244. This was only two years and a half before these lands were sold to Mitchell, and they were parts of an alternate section reserved in a railroad grant. That statute, in its terms, was limited to persons who had already settled on such alternate sections, and it may be doubted whether any right of pre-emption by a settlement made afterwards existed under the law. But it is unnecessary to decide that point, as it is beyond dispute that it required in any event that the money should be paid before the land was offered for sale at public auction.

The record of this case shows that, while Bunn's pre-emption claim comes directly within the provision of both statutes, they were utterly disregarded in the decision of the Secretary of the Interior, on which alone his case has any foundation.

We have no evidence in this record at what time the President's proclamation was issued, or when the sales under it began at which Mitchell purchased. These proclamations are not published in the statutes as public laws, and this one is not mentioned in the record. But we know that the public lands are never offered at public auction until after a proclamation fixing the day when and the place where the sales begin. The record shows that both Moore and Mitchell bought and paid for the respective forty-acre pieces now in contest, at public auction. That they were struck off to them a few cents in price above the minimum of $2.50, below which these alternate sections could not be sold, and that this was on the fifteenth day of November, 1855. These public sales were going on then on that day, and how much longer is not known, but it might have been a week, or two weeks, as these sales often continue open longer than that.

Bunn states in his application, made three months after this, that his settlement began on the 8th of November, 1855. It is not apparent from this record that he ever gave the notice of his intention to pre-empt the land, by filing what is called a declaration of that intention in the record accompanying the copy of such a declaration in the record accompanying the affidavit of settlement, cultivation, and qualification required of a pre-emptor, which last paper was made and sworn to Feb. 20, 1856, when he proved up his claim, and paid for and received his certificate. There is nothing to show when the declaration of intention was filed in the office.

Waiving this, however, which is a little obscure in the record, it is very clear that Bunn 'failed to make proof of payment, and failed to file the affidavit of settlement required, before the commencement of the sale' at which Mitchell bought. The statute declares that none of the provisions of the act shall be available to any person who fails to do this. The affidavit and payment of Bunn were made three months after the land sales had commenced, and after these lands had been sold.

The section also declares that the act shall not delay the sale of any public land beyond the time which has been or may be appointed by the proclamation of the President. To refuse Mitchell's bid on account of any supposed settlement, even if it had been brought to the attention of the officers, would have been to delay the sale beyond the time appointed, and would, therefore, have been in violation of the very statute under which Bunn asserts his right.

Whatever Bunn may have done on the 8th of November, and up to the 15th of that month, in the way of occupation, settlement, improvement, and even notice, could not withdraw the land from sale at public auction, unless he had also paid or offered to pay the price before the sale commenced.

It seems quite probable that such attempt at settlement as he did make was made while the land sales were going on, or a few days before they began, with the purpose of preventing the sale, in ignorance of the provision of the statute which made such attempt ineffectual.

At all events, we are entirely satisfied that the lands in controversy were subject to sale at public auction at the time Moore and Mitchell bid for and bought them; that the sale so made was by law a valid one, vesting in them the equitable title, with right to receive the patents, and that the subsequent proceedings of Bunn to enter the land as a pre-emptor were unlawful and void.

It was the duty of the court in Illinois, sitting as a court of equity, to have declared that the mortgage made by Bunn, so far as these lands are concerned, created no lien on them, because he had no right, legal or equitable, to them.

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

So ordered.


text: Talk:Moore v. Robbins (96 U.S. 530)/Opinion of the Court


text:
National Bank v. Warren

APPEAL from the Circuit Court of the United States for the Southern District of New York.

The Tenth National Bank of New York, having an undisputed debt against the firm of Sanger & Co., of about $10,000, endeavored to obtain its money by persuasion, but received only fair words in return. After pursuing this policy for several months, it brought suit against the debtors, Nov. 3, 1870. They received delay and indulgence in its prosecution, and judgment was rendered against them on the 12th of January, 1871. Execution was issued on that day, and a levy made upon their property. Yielding again to their solicitations, the bank did not press an immediate sale under the execution, and on the 24th of February, 1871, bankruptcy proceedings were commenced by their other creditors. The sale upon the execution was stayed by an injunction in the present suit, which was instituted by Warren & Rowe, assignees in bankruptcy of Sanger & Co., to set aside the judgment and execution as fraudulent and void.

This injunction was afterwards modified by allowing a sale, and directing the sheriff to hold the proceeds subject to the order of the court.

The District Court ultimately dismissed the bill with costs. That decree having, on appeal, been reversed by the Circuit Court, the bank brought the case here.

Mr. A. J. Vanderpoel for the appellant.

This case is, in substance, identical with Wilson v. City Bank, 17 Wall. 473.

There is no evidence whatever of any intent to give the bank a preference. Partridge v. Dearborn, 2 Low. 286; Hoover v. Greenbaum, 61 N. Y. 305; Sleek v. Turner, 76 Pa. St. 142; Henkelman v. Smith, 42 Md. 164.

Mr. Austen G. Fox, contra.

This case comes within the class of cases represented by Buchanan v. Smith (16 Wall. 277), and not that represented by Wilson v. City Bank (17 id. 473).

The liens obtained by the bank were a preference, and there fore void as against the assignees in bankruptcy.

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

title: National Bank v. Warren


text: Talk:National Bank v. Warren

title: Talk:National Bank v. Warren


text:
National Bank v. Warren/Opinion of the Court

This action goes upon the theory that the mere non-resistance of a debtor to judicial proceedings against him, when the debt is due and there is no valid defence to it, is the suffering and giving a preference under the Bankrupt Act. This theory is expressly repudiated in the case of Wilson v. City Bank, 17 Wall. 473. It is also held in that case that the facts that the debtor does not himself file the petition in bankruptcy under such circumstance, and that the creditor was aware of the insolvency of the debtor, do not avoid the judgment and execution. In the present case, there is not proven a single fact or circumstance tending to show a concurrence or aid on the part of the debtors in obtaining the judgment or securing the payment of the debt. Their only effort was to obtain delay, apparently in the hope of relief from the embarrassments which finally overwhelmed them.

The decree of the Circuit Court must be reversed, and that of the District Court, dismissing the bill with costs, affirmed; and it is

So ordered.


text: Talk:National Bank v. Warren/Opinion of the Court


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Wolf v. Stix (96 U.S. 541)

MOTION to dismiss a writ of error to the Supreme Court of the State of Tennessee.

Mr. Josiah Patterson, for the defendant in error, in support of the motion.

Mr. William M. Randolph, contra.

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

title: Wolf v. Stix (96 U.S. 541)


text: Talk:Wolf v. Stix (96 U.S. 541)

title: Talk:Wolf v. Stix (96 U.S. 541)


text:
Wolf v. Stix (96 U.S. 541)/Opinion of the Court

This was a bill in chancery, filed by Louis Stix & Co. in the Chancery Court of Shelby County, Tennessee, in accordance with the laws and practice of that State, against Marks, Pump, & Co. and M. Wolf, to recover a debt due them from Marks, Pump, & Co., and to set aside a sale of goods by the latter firm to Wolf, because, as alleged, it was made to defraud creditors. A writ of attachment was sued out upon this bill, and the goods were attached in the possession of Wolf.

By the Code of Tennessee (sect. 3509), the defendants to an attachment suit may replevy the property attached by giving bond, with good security, payable to the plaintiff, in double the amount of the plaintiff's demand, or, at the defendant's option, in double the value of the property attached, conditioned to pay the debt, interest, and cost, or the value of the property attached, with interest, as the case may be, in the event he shall be cast in the suit; and in such case (sect. 3514), the court may enter judgment or decree upon the bond, in the event of a recovery by the plaintiff, against the defendant and his sureties, for the penalty of the bond, to be satisfied by the delivery of the property or its value, or payment of the recovery.

Wolf replevied the property attached in this case, claiming to be the owner, and gave a replevin bond with Lowenstein and Helman as his sureties, in which the goods were valued at $10,000. In December, 1872, the Chancery Court decided that there was no fraud in the sale to Wolf; and Marks, Pump, & Co. having been discharged in bankruptcy from their debt, the bill was dismissed. From this decree Stix & Co. appealed, March 21, 1873, to the Supreme Court. March 28, 1874, Wolf obtained a discharge in bankruptcy from his debts. April 28, 1877, the Supreme Court reversed the decree of the Chancery Court in the suit of Stix & Co., and entered a decree against Wolf, and Lowenstein and Helman as his sureties in the replevin bond, for $16,200, the value of the goods and interest, and awarded execution thereon. May 3, 1877, Wolf and his sureties petitioned the court to set aside this decree, and permit them to come in and plead in that court the discharge of Wolf, or, if that could not be done, to remand the cause, after reversing the decree below, so that the defence might be made in the Chancery Court; but the Supreme Court being of the opinion that no new defence could be made in that court, and that it was not allowable to set up the defence in bankruptcy by any proceeding there for that purpose, refused the petition, and permitted the decree to stand as already entered.

From this statement of the case it is apparent that no Federal question was actually decided by the court below and that none was involved in the decision as made. The discharge in bankruptcy was granted more than three years before the action of the Supreme Court which is complained of, and no attempt was made to bring it to the attention of that court until after a decree had been entered in the cause. Upon the face of the record proper, therefore, no Federal question could have been decided, because none was raised.

But upon the case as made by the subsequent petition to set aside the decree the parties occupy no better position, because the court did not decide that the discharge was inoperative as a release of the obligation involved in the suit, but only that the defence of a discharge in bankruptcy after the decree below could not be set up in the Supreme Court, as no new defence could be made there. Such a defence may be made in Tennessee by bill in chancery after the decree in the Supreme Court, but not by the suggestion of the fact in that court. It was so decided in Anderson v. Reaves at the January Term, 1877, of the Supreme Court of that State, as is shown by a copy of the opinion printed with the brief filed on behalf of the defendant in error in support of this motion. Thus it appears that even upon this motion no Federal question was actually decided, and that, according to the law of Tennessee, none was involved. We see no reason why, according to the practice in that State, the plaintiffs in error are not still at liberty to enforce the discharge in bankruptcy against the decree of the Supreme Court by bill in chancery.

Writ dismissed.


text: Talk:Wolf v. Stix (96 U.S. 541)/Opinion of the Court


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Insurance Company v. Mowry

ERROR to the Circuit Court of the United States for the District of Rhode Island.

This was an action by Daniel A. Mowry, upon a policy of insurance for the sum of $10,000, issued to him, for his sole benefit, by the Union Mutual Life Insurance Company,-a corporation created by the laws of Maine,-upon the life of Nelson H. Mowry.

The facts of the case and the instructions to the jury are stated in the opinion of the court.

The concluding clause of the policy is as follows: 'But the same [the policy] shall not be binding until countersigned and delivered by John Shepley, agent at Providence, R. I., nor until the advance premium is paid.'

There was a verdict for the plaintiff; and, judgment having been rendered thereon, the defendant sued out this writ of error.

Mr. Benjamin F. Thurston and Mr. Charles H. Parkhurst for the plaintiff in error.

The representations of Shepley, relating to the rights and liabilities of the parties to a contract to be executed in futuro, are not matter of estoppel; but, if they were, there must be proof that the company authorized him to make them, or subsequently ratified them. There was no such proof. The only ratification is contained in the last clause of the policy, and his authority is there expressly limited to countersigning and delivering that instrument and receiving the premium. His promise that the company would give timely notice to the plaintiff when the premiums were due did not bind the company, nor waive the forfeiture incurred by the non-payment of them.

The policy determines the rights of the parties; and its provisions cannot, in the absence of fraud, be defeated by the verbal agreements, or the conduct of the parties or their agents, which preceded its execution and delivery.

The instructions of the learned judge below were evidently erroneous.

Mr. J. J. Storrow, contra.

The failure of the plaintiff to pay the second premium ad diem was owing to the conduct of Shepley. He was the agent of the company to negotiate the contract of insurance and give validity to it by his signature, as well as to receive the premium. As no limitation of his authority was proved, the jury were warranted in inferring that none existed, and that his representations and promises which misled the plaintiff were those of the company. The latter was therefore estopped from setting up the clause of forfeiture. Insurance Company v. Wilkinson, 13 Wall. 222; Same v. Mahone, 21 id. 152; Rockford Insurance Co. v. Nelson, 75 Ill. 548; Boos v. World Mutual Life Insurance Co., Thomp. & C. (N. Y.) 364; Mayer v. The Mutual Life Insurance Co. of Chicago, 38 Iowa, 304.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Insurance Company v. Mowry


text: Talk:Insurance Company v. Mowry

title: Talk:Insurance Company v. Mowry


text:
Insurance Company v. Mowry/Opinion of the Court

This was an action on a policy of insurance, issued by the Union Mutual Life Insurance Company, a corporation created under the laws of Maine, upon the life of Nelson H. Mowry, for the sum of $10,000. The insurance was effected by a nephew of the insured, for his sole benefit. The nephew was at the time a creditor of the insured to the extent of $6,000, and had agreed to embark with him in an enterprise requiring the expenditure of considerable capital, and depending for its success upon the knowledge and skill of the insured in business. These circumstances gave the nephew such an interest in the life of the insured as to prevent the policy from being a wager one. The insurance effected was from the 9th of March, 1867, and the policy recited the payment of the first annual premium on that day, and stipulated for the payment of the subsequent premiums on the same day of that month each year. The payment of the insurance money, after notice and proof of the death of the insured, was made dependent upon the punctual payment, each year, of the premium. The policy, in terms, declared that it was made and accepted by the insured and the nephew, upon the express condition that if the amount of any annual premium was not fully paid on the day and in the manner provided, the policy should be 'null and void, and wholly forfeited.' And it declared that no agent of the company, except the president and secretary, could waive such forfeiture, or alter that or any other condition of the policy.

The second premium, due on the 9th of March, 1868, was not paid, and the insured died on the 8th of April following. Forty-five days after it was due, and fifteen days after the death of the insured, this premium was tendered to the company, and was refused. The question for determination is, whether a tender of the premium at that time was sufficient to hold the company to the payment of the insurance money.

By the express condition of the policy, the liability of the company was released upon the failure of the insured to pay the premium when it matured; and the plaintiff could not recover, unless the force of this condition could in some way be overcome. He sought to overcome it, by showing that the agent, who induced him to apply for the policy, represented to him, in answer to suggestions that he might not be informed when to pay the premiums, that the company would notify him in season to pay them, and that he need not give himself any uneasiness on that subject; that no such notification was given to him before the maturity of the second premium, and for that reason he did not pay it at the time required. This representation before the policy was issued, it was contended in the court below, and in this court, constituted an estoppel upon the company against insisting upon the forfeiture of the policy.

But to this position there is an obvious and complete answer. All previous verbal arrangements were merged in the written agreement. The understanding of the parties as to the amount of the insurance, the conditions upon which it should be payable, and the premium to be paid, was there expressed, for the very purpose of avoiding any controversy or question respecting them. The entire engagement of the parties, with all the conditions upon which its fulfilment could be claimed, must be conclusively presumed to be there stated. If, by inadvertence or mistake, provisions other than those intended were inserted, or stipulated provisions were omitted, the parties could have had recourse for a correction of the agreement to a court of equity, which is competent to give all needful relief in such cases. But, until thus corrected, the policy must be taken as expressing the final understanding of the assured and of the insurance company.

The previous representation of the agent could in no respect operate as an estoppel against the company. Apart from the circumstance that the policy subsequently issued alone expressed its contract, an estoppel from the representations of a party can seldom arise, except where the representation relates to a matter of fact,-to a present or past state of things. If the representation relate to something to be afterwards brought into existence, it will amount only to a declaration of intention or of opinion, liable to modification or abandonment upon a charge of circumstances of which neither party can have any certain knowledge. The only case in which a representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have been induced to act. An estoppel cannot arise from a promise as to future action with respect to a right to be acquired upon an agreement not yet made.

The doctrine of estoppel is applied with respect to representations of a party, to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect, if a party who, by his statements as to matters of fact, or as to his intended abandonment of existing rights, had designedly induced another to change his conduct or alter his condition in reliance upon them, could be permitted to deny the truth of his statements, or enforce his rights against his declared intention of abandonment. But the doctrine has no place for application when the statement relates to rights depending upon contracts yet to be made, to which the person complaining is to be a party. He has it in his power in such cases to guard in advance against any consequences of a subsequent change of intention and conduct by the person with whom he is dealing. For compliance with arrangements respecting future transactions, parties must provide by stipulations in their agreements when reduced to writing. The doctrine carried to the extent for which the assured contends in this case would subvert the salutary rule, that the written contract must prevail over previous verbal arrangements, and open the door to all the evils which that rule was intended to prevent. White v. Ashton, 51 N. Y. 280; Bigelow, Estoppel, 437-441; White v. Walker, 31 Ill. 422; Faxton v. Faxon, 28 Mich. 159.

The learned judge who tried this case in the Circuit Court instructed the jury, in substance, that if they could find from the language of the agent that there was an agreement between him and the assured, made before the policy was executed, that the latter should have notice before he should be required to pay the annual premium, then that the company, not having given such notice, was estopped from setting up the forfeiture stipulated by the policy for non-payment of the premium when due. For the reasons we have stated, we think the court erred in this instruction.

There is nothing in the record which shows that the agent was invested with authority to make an insurance for the company. In representing himself as an agent, he only solicited an application by the assured to the company for a policy. That instrument was to be drawn and issued by the company, and it shows on its face that the authority to the agent was limited to countersigning it before delivery and to receiving the premiums. But even if the agent had possessed authority to make an insurance for the company, and he made the agreement pretended, still the assured was bound by the terms of the policy subsequently executed and accepted by him.

The judgment must be reversed, and the cause remanded for a new trial; and it is

So ordered.


text: Talk:Insurance Company v. Mowry/Opinion of the Court


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Schumacher v. Cornell

1. Letters-patent No. 133,536, granted Dec. 3, 1872, to William Johnson, for an improvement in wrenches, do not infringe reissued letters-patent No. 5026, granted Aug. 6, 1872, to John Lacey and George B. Cornell, for an improvement in wrenches for extracting bung-bushes.

2. The doctrine of mechanical equivalents has no application to this case.

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

This is a suit by George B. Cornell, against Eilert Schumacher and William Johnson, for an injunction, and for damages claimed for the alleged infringement by them of reissued letters-patent No. 5026, granted Aug. 6, 1872, to John Lacey and George B. Cornell, for an improvement in wrenches for extracting bung-bushes; said letters being a reissue of original letters No. 118,617, dated Aug. 29, 1872.

The defendants justified under letters-patent No. 133,536, issued to Johnson Dec. 3, 1872, for an improvement in wrenches.

The specification and claim of both patents are fully stated in the opinion of the court.

The drawing therein referred to are as follows:--

The court below decreed in favor of the complainant, and awarded him an injunction, whereupon the defendants appealed to this court.

There was no infringement. Curtis, Patents, sect. 249; Prouty v. Ruggles, 1 Story, 568; s. c. 16 Pet. 336; Winans v. Schenectady & Troy Railroad Co., 2 Blatchf. 279; Bell v. Daniels, 1 Fish. Pat. Cas. 372; Fuller v. Yentzer, 94 U.S. 288; Gill v. Wells, 22 Wall. 1; Gould v. Rees, 15 id. 187; Vance v. Campbell, 1 Black, 427.

There is no room in this case to invoke the doctrine of mechanical equivalents. Seymour v. Osborne, 11 Wall. 516; Gould v. Rees, supra; Gill v. Wells, supra.

Mr. L. L. Bond, contra, cited Curtis, Patents, sect. 332, 453-458; Blanchard v. Biers, 2 Blatchf. 418; Sewall v. Jones, 91 U.S. 171; Root v. Ball, 4 McLean, 177; Alden v. Dewey, 1 Story, 336; Haworth v. Hardcastle, Web. Pat. Cas. 484; Ransom v. Mayor, &c., 1 Fish. Pat. Cas. 252; Whipple v. Middlesex Co., 4 id. 41; Winans v. Denmead, 15 How. 330.

Mr. William P. Lynde for the appellants.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Schumacher v. Cornell


text: Talk:Schumacher v. Cornell

title: Talk:Schumacher v. Cornell