text:
Freeborn v. Smith/Opinion of the Court

It is said that no mandate can go to the Territorial court of Nevada announcing a reversal here because no such court exists. Granted; but is such a process indispensable to the existence of power here, or to the efficacy of this court's judgment in all courts and places? Surely not.

No further proceeding can be had in the Territorial courts by either plaintiffs or defendants; but the plaintiffs may bring a new action in the State courts. To such action the judgment, heretofore rendered in the now extinct courts of Nevada, would, indeed, be prim a facie a bar. But such bar would be at once raised, and every impediment to legal justice removed, if the plaintiffs should produce a record of this court showing that the judgment of the Territorial court was here reversed. It could not be said that the decision of this court was nugatory because it had failed to announce its reversal to the extinct tribunal whose judgment it reversed. 'This reversal was not to depend on any act to be performed, or opinion to be given by the court below; but stood absolute by the judgment of this court.'

There is no repeal of the Territorial act. It remains a law, valid and operative for the purpose of giving efficiency and force to all things done under its authority. The assertion that it is superseded is only partly true. The Territorial government, with its departments, is, indeed, gone; but the power of vacating errors committed in those departments which, in a lawful and constitutional way, was vested in any still existing officers of the United States, is not necessarily superseded.

We do not perceive any difficulty even in removing a judgment to this court after the admission of the State. The record remains a valid paper in the hands of an officer whose duties, except as custodian of the records, have ceased. And it is settled that the writ of error to remove a record may go to the place where the record is lawfully deposited, and to the court or officer having lawful custody of it. There is no necessity that it should go to the tribunal which pronounced the judgment sought to be reversed.

We think it is not correct to say that the act creating Nevada Territory is repealed or abrogated. Nothing can be done under it which is inconsistent with the subsequent governmental action of the United States in admitting the State of Nevada; but this is the whole extent to which it has become inoperative. The jurisdiction of this court to reverse the judgments of the Territorial Supreme Court remains.

2. How does the case stand under the act of 27th February, 1865?

This act is in substantial conformity with former legislation of Congress, which has been passed upon and approved by this court. After the State of Florida was admitted into the Union on February 22d, 1847, an act was passed directing 'that in all cases in which judgment or decrees have been rendered in the' late Territorial courts of Florida, 'and from which writs of error have been sued out or appeals have been taken to the Supreme Court of the United States, the said Supreme Court shall be and is hereby authorized to hear and determine the same.' Under that act, this court exercised appellate jurisdiction in Benner v. Porter. By a supplemental act, passed February 22d, 1848, it was enacted that the provisions of said act of 1847, 'so far as may be, shall be, and they hereby are, made applicable to all cases which may be pending in the Supreme or other superior court of and for any Territory of the United States, which may hereafter be admitted as a State into the Union, at the time of its admission, and to all cases in which judgments or decrees shall have been rendered in such Supreme or superior court at the time of such admission, and not previously removed by writ of error or appeal.' The first section of this same act of 1848 applied in terms the remedy thus contemplated to the like cases in the Territorial courts of Iowa. Under this first section of the act of 1848, this court took cognizance of a writ of error in an ordinary land case, not of peculiar Federal cognizance, issued after Iowa had been admitted as a State, and thereupon reversed the judgment of the Territorial court of Iowa in Webster v. Reid.

As a palliative of the consequences plainly resulting from the doctrines of the defendant, it is intimated that Congress might have done all that was necessary in the enabling act under which Nevada came in as a State; but having let slip that opportunity, no remedy can now be applied. But

1. This assumes the much debated and very disputable position that Congress, when admitting a State into the Union, may impose special conditions upon that favor, and place her in a position inferior to that of her elder sisters.

2. It also assumes that, in retaining or exercising authority to cause a review of judgments pronounced by its own judges in its own courts, the Federal Government would exercise a jurisdiction over matters and questions properly of State cognizance. Such is not the fact. It only reverses, if erroneous, and approves, if right, the acts of its own officers.

The authorities to the contrary of the doctrine thus set up are numerous. It is neither an exercise of judicial power nor an invasion of vested rights. It is merely a legislative regulation of judicial practice. There is no such thing as a vested right in a wrong-doer to evade the exercise of judicial power. Bull v. Calder is an early leading case. The United States v. Sampeyrac, is a later one. It was held in this last case that Congress might confer jurisdiction, and at the same time might ratify and legitimate an action already commenced in a court which, until the act in question, had no jurisdiction of the matter. The doctrine of vested rights never restrains a legislature from advancing justice or remedying wrongs. It is intended to prevent oppression and injustice, not to afford them an impunity.

II. As to merits.

1. Is it shown upon the record that Freeborn and Shelden were partners with Shaw? Our objection is on this point, that there was absolutely no evidence tending to show that such a partnership existed. The court ought not to have submitted to the jury the question of fact whether such partnership existed. It follows that if the court can correct the error below upon the record, the judgment must be reversed. Because it is familiar law that where there has been judgment against two (jointly), and there is error as to one, the judgment must be reversed.

2. The remaining point arises upon the rejection of certain evidence offered by the defendants, to wit, letters and telegraphic messages from Shaw (the real debtor) to the parties charged as partners in this suit, and now plaintiffs in error. These letters contained admissions against interest, and should have been received.

Reply: Two cases in this court are cited as militating against the general principles we assert: Calder v. Bull and the United States v. Sampeyrac. But neither really does so.

Calder v. Bull arose on statute of Connecticut allowing an appeal from a judgment rendered by a probate court of that State, the time for appealing under the law as it stood previously having expired. The statute was passed prior to the adoption of a State constitution, and it was shown to have been the custom of the legislature from a very early period to enact laws of this nature, and exercise a general control over the judiciary in respect to new trials and appeals. The grounds urged against the statute were that it was a judicial and not a legislative act, and that it contravened the clause of the Federal Constitution prohibiting the passage of ex post facto laws. The decision of the court was in favor of its validity, but the judges wrote separate opinions, and assigned different reasons for their conclusion. As to the first ground, some of them held that it was immaterial, there being no provison in the Constitution preventing the legislature of a State from exercising judicial powers. Others held that whether the statute be regarded as judicial or legislative, it was justified by the ancient and uniform practice of the legislature, and should be maintained. It was unanimously agreed that the prohibition referred to only applied to criminal enactments, and that a State statute affecting civil rights merely was not within it. This was the whole case, and the decision certainly has no effect upon the principle contended for here.

The case of the United States v. Sampeyrac brought in question the validity of an act of Congress extending the provisions of a previous act, so as to enable the Territorial courts of Arkansas to entertain bills of review on the part of the United States in cases of forgery and fraud. No interference with vested rights was contemplated by the act, the effect of which was simply to invest certain tribunals with equitable powers not possessed by them before, to be exercised in a class of cases over which the ordinary jurisdiction of courts of equity has always extended. It is a part of the general jurisdiction of these courts to investigate matters of fraud, and grant relief to the parties injured by them; and it was, of course, competent for Congress to confer this jurisdiction on the courts of Arkansas. It did this, and nothing more, leaving those courts to proceed in accordance with the settled principles governing courts of equity in such cases. It was on this ground mainly that the court sustained the act, holding in respect to the merits of the case that the judgment in question was fraudulent, and that no rights had vested under it. The decision, therefore, is not in point.

It may be that, in Benner v. Porter, this court assumed jurisdiction of an appeal given by an act of this nature; but it seems to have done so without argument, and without any consideration of the question of the power of Congress to pass the act. Under such circumstances, the case should not be regarded as conclusive; and the question should be treated as an open one, and determined upon its merits.

Mr. Justice GRIER delivered the opinion of the court.

The most important question of this case is that of jurisdiction.

It is objected to the act of 27th February, just passed, that it is ineffectual for the purpose intended by it; that it is a retrospective act interfering directly with vested rights that the result of maintaining it would be to disturb and impair judgments which, at the time of its passage, were final and absolute; that the powers of Congress are strictly legislative, and this is an exercise of judicial power, which Congress is not competent to exercise. But we are of opinion that these objections are not well founded.

The extinction of the Territorial government, and conversion of the Territory into a State under our peculiar institutions, necessarily produce some anomalous results and questions which cannot be solved by precedents from without.

It cannot be disputed that Congress has the exclusive power of legislation in and over the Territories, and, consequently, that the Supreme Court has appellate jurisdiction over the courts established therein, 'under such regulations as Congress may make.' In the case of Benner v. Porter, it is said: 'The Territorial courts were the courts of the General Government, and the records in the custody of their clerks were the records of that Government, and it would seem to follow necessarily from the premises that no one could legally take possession or custody of the same without the assent, express or implied, of Congress.' The act of 22d of February, 1848, chapter 12, which provides for cases pending in the Supreme or superior court of any Territory thereafter admitted as a State, made no provision for cases pending in this court on writ of error or appeal from a Territorial court. In the case just mentioned, we have decided that it required the concurrent legislation of Congress and the State legislature, in cases of appeallate State jurisdiction, to transfer such cases from the old to the new government.

The act of Congress admitting the State of Nevada omitted to make such provision, although the Constitution of Nevada had provided for their reception. Now, it has not been and cannot be denied, that if the provisions of the act now under consideration had been inserted in that act, the jurisdiction of this court to decide this case could not have been questioned.

By this omission, cases like the present were left in a very anomalous situation. The State could not, proprio vigore, transfer to its courts the jurisdiction of a case whose record was removed to this court, without the concurrent action of Congress. Until such action was taken, the case was suspended, and the parties left to renew their litigation in the State tribunal. What good reason can be given why Congress should not remove the impediment which suspended the remedy in this case between two tribunals, neither of which could afford relief? What obstacle was in the way of legislation to supply the omission to make provision for such cases in the original act? If it comes within the category of retrospective legislation, as has been argued, we find nothing in the Constitution limiting the power of Congress to amend or correct omissions in previous acts. It is well settled that where there is no direct constitutional prohibition, a State may pass retrospective laws, such as, in their operation, may affect suits pending, and give to a party a remedy which he did not previously possess, or modify an existing remedy, or remove an impediment in the way of legal proceedings. The passage of the act now in question was absolutely necessary to remove an impediment in the way of any legal proceeding in the case.

The omission to provide for this accidental impediment to the action of this court, did not necessarily amount to the affirmance of the judgment, and it is hard to perceive what vested right the defendant in error had in having this case suspended between two tribunals, neither of which could take jurisdiction of it; or the value of such a right, if he was vested with it. If either party could be said to have a vested right, it was plaintiff in error, who had legally brought his case to this court for review, and whose remedy had been suspended by an accident, or circumstance, over which he had no control. If the judgment below was erroneous, the plaintiff in error had a moral right at least to have it set aside, and the defendant is only claiming a vested right in a wrong judgment. 'The truth is,' says Chief Justice Parker, in Foster v. Essex Bank, 'there is no such thing as a vested right to do wrong, and the legislature which, in its acts, not expressly authorized by the Constitution, limits itself to correcting mistakes and to providing remedies for the furtherance of justice, cannot be charged with violating its duty, or exceeding its authority.' Such acts are of a remedial character, and are the peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power.

The constitutional difficulty attempted to be raised on the argument, that Congress cannot authorize this court to issue a mandate to a State court, in a mere matter of State jurisdiction, is factitious and imaginary. It is founded on the assumption, that all the questions which we have heretofore decided are contrary to law, and is but a repetition of the former objections which have been overruled by the court under another form of expression. For if it be true, as we have shown, that Congress alone had the power of disposing of the Territorial records, and providing for the further remedy in the newly organized courts-if it requires the concurrent legislation of both Congress and the State to dispose of the cases in the peculiar predicament in which this case was heard-if Congress had, as we have shown, the power to remove the impediments to its decision, and remit it to a State court authorized by the constitution of the State to take cognizance of it, they must necessarily regulate the conditions of its removal, so that the parties may have their just remedy respectively. If a State tribunal could not take possession of the record of a court removed legally to this court, nor exercise jurisdiction in the case without authority of Congress (as we have decided), without the legislation of Congress, they must necessarily accept and exercise it subject to the conditions imposed by the act which authorizes them to receive the record. This court would have the same right to issue its mandate as in cases where we have jurisdiction over the decisions of the State courts, under the 25th section of the Judiciary Act, and for the same reasons, because we have jurisdiction to hear and decide the case.

II. Having disposed of the question of jurisdiction, the case presents no difficulty.

As to the case made on the motion for a new trial: our decision has always been, that the granting or refusing a new trial is a matter of discretion with the court below, which we cannot review on writ of error.

The single bill of exceptions in the case is to the refusal of the court to receive certain letters in evidence. The defendants were charged to have been partners of one George N. Shaw, or to have held themselves out to the public as such. This was the only issue in the case. To rebut the plaintiffs' proof, the defendants offered a correspondence between themselves, and some letters to them by one Eaton, their agent. It is hard to perceive on what grounds the parties should give their private conversations or correspondence with one another or their agent to establish their own case, or show that they had not held themselves out to the public as partners of the deceased. Let judgment of affirmance be entered in the case, and a statement of this decision be certified to the Supreme Court of Nevada.

AFFIRMANCE AND CERTIFICATE ACCORDINGLY.

title: Freeborn v. Smith/Opinion of the Court


text: Talk:Freeborn v. Smith/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Sheets v. Selden's Lessee

THE State of Indiana, being owner of the Northern Division of the Central Canal, and of certain adjacent lands, authorized its Board of Internal Improvement, to cause any surplus water, of which there was some, along 'with such portions of ground belonging to the State as might be necessary to its use, to be leased.' Under this act leases were made in 1839-40,-one to Yandes & Sheets, another to Sheets; each for the term of thirty years.

The leases reserved certain rents, payable semi-annually on the first of May and November, and they provided that if any rent should 'remain unpaid for one month from the time it shall become due,' 'all the rights and privileges' of the lessees 'shall cease and determine, and any authorized agent of the State, or lessee under the State, shall have power to enter upon and take possession of the premises,' &c. The first lease, that to Yandes & Sheets, in addition to the use of the water-power, in consideration of the rents reserved, leased, also, as necessary, 'for the use of the waterpower hereby leased,' and for the same term and on the same conditions 'the particular portion of ground belonging to the State at said point, included within the following boundaries, to wit, [here a particular piece of ground was described] containing a little more than half an acre.' The second lease, that to Sheets, in consideration of the rent reserved, leased also for the same term, and on the same conditions as the water-power was leased, 'such part of the ground belonging to the State as in the opinion of the engineer having charge may be necessary to the use of the water-power hereby leased,' to wit [here, also, a particular piece of ground, as thus necessary, was described]. The lease to Yandes & Sheets was executed on the part of the State by the President of the Board of Internal Improvement, and by the lessees in this form:

D. H. MAXWELL, [SEAL.] President of the Board of Internal Improvement.

DANIEL YANDES, [SEAL.]

WILLIAM SHEETS. [SEAL.]

The lease to Sheets was executed by N. Noble, Acting Canal Commissioner, and Sheets, in this form:

N. NOBLE, Acting Commissioner for the Northern Division of the Central Canal.

WILLIAM SHEETS.

The 'seals' which appear to the lease to Yandes & Sheets were ink scrawls. No seals of any kind appeared on the second lease, that to Sheets.

Some time subsequently to the making of these leases the State passed two statutes. By the first, entitled 'An act to authorize the Governor of Indiana to compromise with, and to cause suit to be brought against lessees of the water-power of the Northern Division of the Canal,' the Governor was authorize to sell 'all the right, title, and interest of the State of Indiana, in and to the Northern Division of the Central Canal, and all the rents that shall become due after the sale of the said property, and the water-power and appurtenances thereunto belonging.'

By the second, tntitled 'An act to authorize the sale of the Northern Divisior of the Central Canal,' the Governor and Auditor of the State were 'authorized to make sale and dispose of all the right, title, interest, claim, and demand which the State holds in the Northern Division of the Central Canal, situate in the said State of Indiana, with all the water-power and appurtenances thereunto belonging,' and authorizing those officers to convey the same to the purchaser, on behalf of the State, in the name of the State of Indiana.

The Governor accordingly made public sale of certain property, advertised for sale, as 'being all the right, title, interest, claim, and demand which the State may hold or possess in the Northern Division of the Central Canal, and all the rents which may have become, or shall become, due after the sale of said property, and the water-power, and the appurtenances thereunto belonging, including its banks, margins, tow-paths, side-cuts, feeders, basins, right of way, dams, water-power, structures, and all the appurtenances thereunto belonging.' And having reported the sale to the legislature, that body confirmed it, directing him to convey the said portion of the canal, with the rights, privileges, and appurtenances, to the purchaser in fee.

The Governor and Auditor of the State (J. A. Wright and E. W. H. Ellis) afterwards executed to F. A. Conwell, who held under the purchaser, an instrument, which made one of the questions in the case. It purported to be made 'between Joseph A. Wright, Governor of the State of Indiana, and Erastus W. H. Ellis, Auditor of said State, of the first part, and F. A. Conwell of the second part,' and recited the sale, and referred to the several acts under which the instrument professed to have been executed, which are those hereinbefore recited; and acknowledged the payment of the purchase-money.

It then makes known that, by virtue of the power vested in them by the acts and joint resolution therein named, 'We, Joseph A. Wright, Governor of the State of Indiana, and Erastus W. H. Ellis, Auditor of the said State, do hereby convey to the said F. A. Conwell,' &c., in fee, all the estate, &c., herein described; the description being just as the property was sold, and as the same is above described; nothing, however, being described by metes and bounds, or in any form more specific than that above given; and, as the reporter inferred from the argument, neither parcel falling within the specific designation of 'bank, margin, tow-path, sidecut, feeder, basin, right of way, dam, or structure.'

The deed was thus executed and tested:

'In testimony whereof, we have hereunto set our hands and affixed the seal of said State, at the city of Indianapolis, the day and year first above written.

'JOSEPH A. WRIGHT,

'Governor.

'ERASTUS W. H. ELLIS,

'Auditor of State.

'C. H. TEST,

'Secretary of State.'

{SEAL OF THE STATE OF INDIANA.}

Selden became owner of the property thus sold by the State; and Sheets, being in possession under the leases which the State had made, and having refused to pay rent, an agent of Selden, authorized by parol, formally demanded, on the first day of May, 1860, and afterwards on the first day of June, a short time before sunset, upon the premises, the rents due on the first of May of the year just named. Payment not being made, Selden, regarding the lease as forfeited, brought ejectment against Sheets (the only tenant in possession). The premises for which the action was brought were the parcels of land described in the two above leases, executed in 1839-40 by the Board of Internal Improvement, as property belonging to the State, and leased in connection with the surplus water, because necessary to the use of such water. The defences in substance were:

I. To the deed of the Governor and Auditor.

1. As not executed in the name of the State.

2. As not embracing the premises in controversy.

II. That the leases not being under seal, Selden, as grantee of the reversionary interest of the State, could not maintain ejectment upon breach of the covenants to pay.

III. That the demand for rent, if authorized at all, should have been made on the 31st May, and having been made on the 1st June, was too late; moreover, that the agent who made the demand was not authorized in writing.

The court below-the Circuit Court of the District of Indiana held none of these defences sufficient; and judgment was given for the plaintiff. The same reasons urged against recovery there were taken for reversal in error here.

Mr. Dumont, for Sheets, plaintiff in error: The deed by the Governor and Auditor is not a deed made on behalf of the State in the name of the State; which the statute declares that it must be. It is by Mr. Wright, the Governor, and Mr. Ellis, the Auditor. These persons do not profess to act even as attorneys of the State; and if they did, the thing would be irregular, for the deed should have been made in the name of the principal; that is to say, of the State by its attorneys; and not in the name of the Governor and Auditor, even if they represented themselves as attorneys of the State, which with such a mode of presentation would not be a grantor at all. 'It was resolved,' says Lord Coke, in Combe's case, 'that when any has authority to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place and to represent his person, and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.' No rule in the law is better settled than this, and none has so uniformly received the sanction and approbation of the various judicial tribunals of the country. In this case, however, as we have said, the attorneys do not even profess to act in the name of the State. They act in their own name; their official titles being added, just as the same titles might well have been added, and probably would have been added,-as descriptions of who the grantors were,-if the same individuals had been conveying lands belonging to themselves personally. Indeed, it would be doubtful whether, in any kind of contract, titles thus appended would be held to be more than descriptive designation, or to relieve from personal liability; for Wright neither conveys nor signs as governor, nor Ellis as State auditor. In regard to a deed, however, the act of acts in the law, the case is stronger than the case of simple contracts, and, as we think, is quite plain. The statutes under which the sale was made have no such inherent force as to operate without regard to general law, as administered between private persons. They may or may not indicate what was meant to be sold; but they do not alter the ancient settled effect of those acts which are done. We concede that, in many cases of Government contracts, the intention to bind the Government and not the agent will prevail; as, for example, where, from the whole instrument, such intention is manifest; but this exception does not apply where the act of the agent, and the manner of its execution, are alike specifically pointed out by legislative direction; and especially does it not apply to a case like the present, where the effect of the act of the agent is to divest the State of title to a valuable freehold estate in lands, and important public franchises besides. Here the legislature has provided how that thing should be done, and by whom.

2. The State, no doubt, was owner of all the lands demised by the leases; but did the State authorize a sale of all those lands? The legislature describes specifically what should be sold. It is the 'water-power' and the 'appurtenances;' nothing else. Now, this ejectment is brought for certain pieces of land, meted and measured out; pieces of land which, confessedly, are not any one of the things either advertised for sale or sold, unless theyare those 'appurtemances' which, we admit, were sold. But 'it seems now settled,' says Tomlins, citing authorities, 'that lands will not pass by the word appurtenances.' To insist that the particular tracts described in the leases are appurtenant to some one or more of the things sold by the State, would be even more absurd than to maintain that land can be appurtenant to land. It would be maintaining that land can be appurtenant to a mere easement, a right of way, a water-power, or a stream of water, natural or artificial. The lands demised cannot be appurtenant to the bed of the canal, nor to its banks, nor its margins, nor its tow-paths, nor its side-cuts, not its feeders, nor its basins, nor the right of way, nor the dams, nor the water-power, nor the structures, specified in the act. What the State meant to convey is not important. The question is, what has she conveyed? and that is to be determined by looking at the words of the statutes and deed, and interpreting them by the rules of law; rules which are of all time, and are the same whether the parties be States or subjects.

2. The leases are not under seal. Now, then a forfeiture is asserted, the party asserting it must prove the forfeiture strictly, for forfeitures are odious. Whence comes this right of re-entry at all? It comes from an English statute; a statute passed in the worst year of, perhaps, the worst of English kings, in the 32d Henry VIII; but which, in common with most statutes of our mother country prior to the fourth year of James I, is confessedly in force by statute adoption of 1818 in Indiana. The language of the English statute is thus:

'The grantees or assignees shall have and enjoy the like advantages against the lessees, &c., by entry for non-payment of rent, &c., and also shall and may have and enjoy all and every such like and the same advantage, benefits, and remedy, by action only, for not performing other conditions, covenants, and agreements, contained and expressed in the indentures of their said leases, demises, or grants, against all and every the said lessees, &c., as the said lessors or grantors themselves, &c., ought, should, or might have enjoyed, at any time or times, in like manner and form as if the reversion of such lands, & c., had not come to the hands of our said sovereign,' &c.

This statute carries with it the construction which it has received in England, as well as with us. Now, in Bickford v. Parson, Judges Wilde, Coltman, Maule, and Cresswell, severally gave opinions, each one of them assuming it to be settled law that the bring a case within this statute of 32 Henry VIII, 34, the lease must be by deed; Maule, J., saying, 'The demise not being by deed, the right to sue is not transferred to the assignee of the reversion by force of the statute.'

Doubtless, it will be said that the necessity for a seal in the true form is dispensed with by our Illinois statute of 1843. But is it? The statute provides that an ink scrawl may be used, 'except where any statute of this State shall require a specific seal.' Is it clear that, adopted by statute of Illinois as the statute of 32 Henry VIII will be conceded by all to have been, a 'specific seal' is not necessary when you attempt to eatablish the forfeiture allowed by the English act; that forfeiture especially which there, as here, is odious, and in favor of which nothing will be intended nor benignantly construed? But even supposing that an ink scrawl, or even no seal, would be sufficient between private persons, yet certainly when the State is the lessor, the private ink scrawl of the State's agent is not sufficient.

3. The demand was too late. This court has fully recognized the obligation of the common law requirements in regard to re-entry on the ground of forfeiture for non-payment of rent. One of these requirements is, that where, as in the present case, the agreement is, that 'if the rent shall be behind and unpaid by the space of thirty or any other number of days after the days of payment, it shall be lawful for the lessor to re-enter; a demand must be made on the thirtieth or other last day.' The right to re-enter for breach here is by the terms of the lease suspended for one month from the time the rent became due. 'The month, by the common law,' says Tomlins, quoting good authorities, 'is but 28 days, and in case of a condition for rent, the month shall be thus computed. So in the case of enrolment of deeds, and generally in all cases where a statute speaks of months.' It is true that, by an Illinois 'act in relation to the construction of statutes and the definition of terms,' it is declared that the word 'month' shall mean a calendar month; but this act relates only to the construction of statutes, and to the meaning of terms as used in them. So, too, the fact that in mercantile contracts, or in other contracts where there was, obviously, such an intention, the calendar month is assumed, is not important; for this business of forfeiture is a very strict proceeding under ancient common law. Admitting, however, that a calendar month was meant, and that the court will so construe the leases, yet then the authority is, that the demand must be on the last day of the month. Here it was on the first of the succeeding.

Mr. Hendricks, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Sheets v. Selden's Lessee


text: Talk:Sheets v. Selden's Lessee

title: Talk:Sheets v. Selden's Lessee


text:
Sheets v. Selden's Lessee/Opinion of the Court

The objections taken by the defendant in the court below against a recovery, and urged in this court for a reversal of the judgment, which require consideration, relate, 1st, to the validity of the deed executed by the Governor and Auditor of Indiana to pass the title of the State to the premises in controversy; 2d, to the claim by the lessors of the plaintiff of a right to maintain ejectment for the premises upon a breach of the covenants to pay rent contained in the leases of the State; and 3d, to the proceedings taken to effect a forfeiture of the leases.

1. The objection to the deed of the Governor and Auditor is, that it is not executed in the name of the State, and does not cover the premises in controversy.

It is true that the form of the deed is not in literal compliance with the language of either of the acts of Indiana; it is not in terms between the State, of the one part and the assignee of the purchasers of the property of the other part; but it shows a completed transaction between the State and the grantee named. It refers to the acts of the legislature authorizing the sale; it sets forth a sale made pursuant to their provisions; it mentions the joint resolution affirming the sale; and it declares that the Governor and Auditor in virtue of the power vested in them by the acts and joint resolution convey the property sold, 'being all the right, title, interest, claim and demand which the State' held or possessed therein.

In the execution of this instrument the Governor and Auditor acted officially and not personally, and in our judgment the deed was sufficient to pass the title of the State they represented. And it may be stated generally that when a deed is executed, or a contract is made on behalf of a State by a public officer duly authorized, and this fact appears upon the face of the instrument, it is the deed or contract of the State, notwithstanding that the officer may be described as one of the parties, and may have affixed his individual name and seal. In such cases the State alone is bound by the deed or contract, and can alone claim its benefits.

The objection that the deed does not cover the premises in controversy rests upon the fact that it does not convey the parcels of land for which the action is brought, by specific designation and description. Such designation and desciption, though usual, are not always essential. Land will often pass by other terms. Thus a grant of a messuage or a messuage with the appurtenances will carry the dwelling-house and adjoining buildings, and also its orchard, garden, and curtilage. The true rule on the subject is this, that everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing by the conveyance. Thus the devise of a mill and its appurtenances was held by Mr. Justice Story to pass to the devisee not merely the building but all the land under the mill and necessary for its use, and commonly used with it. So a conveyance 'of a certain tenement, being one-half of a corn-mill situated,' on a designated lot 'with all the privileges and appurtenances' was held by the Supreme Court of New Hampshire to pass not only the mill, but the land on which it was situated, together with such portion of the water privilege as was essential to its use. And the exception of a factory from a mortgage deed was held by the Supreme Court of Massachusetts to extend to the land under the factory, and the water privilege appurtenant thereto.

In the deed from the Governor and Auditor the property conveyed is designated as 'all the right, title, interest, claim, and demand, which the State may hold or possess in the Northern Division of the Central Canal, &c., and all the rents which may have become, or shall become due after the sale of said property, and the water-power, and the appurtenances thereunto belonging, including its banks, margins, tow-paths, side-cuts, feeders, basins, right of way, dams, water-power, structures, and all the appurtenances thereunto belonging.'

This language is comprehensive enough to carry the several parcels of land described in the declaration. These parcels are described in almost identical language in the leases executed by the Board of Internal Improvement on behalf of the State. The law providing for leasing the surplus water, authorized at the same time the leasing of 'such portions of ground belonging to the State as might be necessary to its use;' and the leases specify those particular parcels as being necessary to the beneficial use and enjoyment of the water.

2. The objection that the lessors of the plaintiff, as grantees of the reversionary interest of the State, cannot maintain ejectment for the premises upon breach of the covenants to pay rent contained in the leases of the State, rests upon the supposition that the leases are not under seal.

It is conceded that at the common law the grantee of a reversion could not enter or bring ejectment for breach of the covenants of a lease; and that the statute of 32 Henry VIII, giving the right of entry and of action to such grantee, was confined to leases under seal. The statute speaks of conditions, covenants, and agreements, contained in indentures of leases, demises, and grants; language only applicable to sealed instruments. That statute was adopted in Indiana as early as 1818, but a law of the State passed in 1843 alters its rule, and extends its remedies to all leases.

3. The objection taken to the proceedings for the forfeiture of the leases is that the demand for the rent was not made on the proper day, not by properly authorized agents.

The demand was made on the first day of May, and also on the first day of June. The first demand was premature; the question is as to the demand on the latter day. The leases provided that the rents should be paid semi-annually on the first days of May and November; and that if any instalment should remain unpaid for one month from the time it should become due, all the rights and privileges secured to the lessees should cease and determine, and any authorized agent or lessee of the State should have power to enter and take possession of the premises.

By the term 'month' as here used is meant a calendar, and not a lunar month. The legislature of Indiana has attached this meaning to the term when it is used in the statutes of the State, but has not defined its meaning in contracts or deeds, and it is contended by the plaintiff in error that in the absence of any legislative provision on the subject, the term must be construed in these instruments to mean lunar and not calendar months. But this view cannot be sustained. The term is not technical, and when the parties have not themselves given to it a definition, it must be construed in its ordinary and general sense, and there can be no doubt that in this sense calendar months are always understood. The reasons upon which a different rule rests in England with reference to other than mercantile contracts, do not outweigh this consideration.

The rent becoming due on the first day of May, the one month from that time within which the payment was required to be made to prevent a forfeiture, expired on the first day of June following. In the computation of the time, the day upon which the rent became due was to be excluded. The general current of the modern authorities on the interpretation of contracts, and also of statutes, where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, is to exclude the day thus designated, and to include the last day of the specified period. 'When the period allowed for doing an act,' says Mr. Chief Justice Bronson, 'is to be reckoned from the making of a contract, or the happening of any other event, the day on which the event happened may be regarded as an entirety, or a point of time; and so be excluded from the computation.'

The parties who made the demand for rent were duly authorized by the lessors of the plaintiff. Authority in writing was not essential; verbal authority was sufficient for the purpose.

JUDGMENT AFFIRMED.


text: Talk:Sheets v. Selden's Lessee/Opinion of the Court


text:
Chittenden v. Brewster

THIS was an appeal from a decree of the Circuit Court for the Northern District of Illinois.

The suit was a creditor's bill filed against a judgment debtor and his assignees, the defendants in the case, to set aside an assignment made by the debtor to hinder and delay creditors. The assignment was made on the 4th of November, 1857, to Brewster and Clark, two of the defendants, and purported to convey to them all the property, real and personal, of the debtor, in trust, to convert the same into money, either at public or private sale, and pay certain preferred creditors named. The judgment debtor made no defence. The assignees put in a joint answer, and after requiring the complainants to make proof of their judgments and executions as charged in their bill, set forth, among other grounds of defence, that, after the filing of the bill below, a bill in chancery had been filed against them in one of the State courts, in behalf of other creditors of the judgment debtor. praying for the appointment of a receiver to take possession and charge of the property conveyed by the assignment, and that the trusts therein created be carried into effect; and that, upon the filing of the bill in the State court, and after hearing the motion for a receiver, the motion was granted; and that they had afterwards, in pursuance of the order of the State court, transferred and set over to the said receiver, one Mitchell, all the property, real and personal, that had come to their hands.

To this answer a replication was filed, and the parties went to their proofs. There was no evidence that, on the application in the State court for a receiver, which was made on the alleged ground of faithless execution of the trust, the assignees had made opposition. They had done nothing but acknowledge service on themselves of the notice of the intended motion for a receiver; employ a solicitor to enter an appearance for them, and to give their assent to the hearing of the motion at the February Term of the court, then at hand. The State court accordingly granted the prayer of the bill before it, and appointed a receiver, one Mitchell, in the case. But no fraud was proved nor specifically alleged on the part of the assignees in any part of the proceeding.

The bill below was taken, as confessed, by Brewster, the debtor, and dismissed as to two other defendants; and the court, after hearing the case on the pleadings and proofs, declared the assignment fraudulent, and set it aside, and appointed a receiver, one Moulton, and directed the judgment debtor to assign and transfer in writing to him all his property, real and personal; and further, that Brewster and Clark, the assignees, should assign and transfer in writing to him all the property and effects of every description that came into their hands by the assignment of the 4th of November, 1857, except such property and effects so assigned to them, which have, since the service of process in this suit, been transferred to Mitchell, the receiver, under the proceedings had in the State court, and which was set forth in the answer filed by them. From this decree the complainants appealed to this court, the ground being essentially that the proceeding in the State court should have been treated as an interference with the Federal jurisdiction previously acquired.

In order to understand this question of priority, it is necessary here to say that the bill in the Circuit Court was filed on the 4th of January, 1858; the subpoena served on the defendants on the next day; and their appearance entered on the 1st of February following. The bill in the State court was filed on the 1st of February, 1858, and the subpoena served on the 20th of the same month. The receiver was appointed afterwards on notice. The evidence did not show that the defendants conveyed the effects of the judgment debtor in their hands to the receiver, but the fact was apparently assumed both by the counsel and the court below, and no point upon it was made by the court here.

Mr. E. S. Smith for Chittenden et al., appellants: The law is settled, that courts of different but of co-ordinate jurisdiction, cannot interfere with each other, either in process, person, or property, to prevent the first jurisdiction, which attaches or takes cognizance of the subject-matter in dispute, from determining the case conclusively. Now the law of lis pendens we assume to be equally settled. We assume that filing a bill in a court of equity and service of process is notice to the world of all the rights claimed by the complainant as set up in his bill. It was thus decided so long ago as in decisions reported by Vernon, and it has been confirmed by many since.

Consider the action of the parties to the proceeding in the State court. Soon after the service of process in this case, the parties appear in the State court, on the first day of February, 1858, and a bill is filed by somebody, charging the assignees with neglect of duty. The assignees receive service, submit to the charge, and in fact, though not in form, confess a decree. They deliver without resistance to Mitchell the property and effects, to be taken to himself, under the assignment. When the assignees did this, they knew the fact of the proceedings by the appellants in the Federal court, to set aside the assignment, and subject the property to the payment of other judgments. If property, situated as the estate in this case was, can, by a proceeding in another jurisdiction, after right and lien had attached, be taken absolutely from the court, then proceedings by judgment creditors in the Federal court, after exhausting their remedy at law, are valueless. It will be impossible for a man to suggest a case, where the debtor, with the aid of a friendly creditor, could not concoct a proceeding to defeat every action by judgment creditors in courts of equity. Before a receiver could be appointed and take possession of the effects, such a proceeding, as the record in this case shows, could defeat the justice of the court. Notice for an injunction can be postponed; time will elapse before a receiver can be appointed. Assignees refuse or neglect to deliver over, and before that is done, an order comes from another jurisdiction, requiring the assignees to deliver the effects to another, who is appointed ostensibly to carry out the trusts. This order the assignees comply with, and thereby arrest the proceedings, because the property could not be reached; leaving the creditor powerless and his debt lost. Such proceedings cannot be tolerated by courts of justice. The rights of parties should not be subjected to schemes which might defeat the ends of justice, nor should parties, who use a court of justice in such a manner as these defendants stand under suspicion of having used one of those of the State of Illinois, go unpunished.

Mr. Washburne, contra, for the assignees: There is no evidence in the record showing that appellants acquired a prior lien. It does not appear they ever sued out executions upon their judgments or placed such executions in the hands of the marshal, or had any return made thereon. The obtaining of a judgment, suing out of execution, and a return of nulla bona are indispensable prerequisites to the establishment of a prior equitable lien.

If the appellants acquired a prior equitable lien by the filing of their bill of complaint, they lost the same by the superior diligence of the complainants in the State court. The lien obtained by the filing of a creditor's bill is an inchoate one, which may be perfected by the appointment of a receiver, and may be displaced by the superior diligence of other creditors in perfecting similar liens. It is urged that the court below should have treated the proceedings of the State court as fraudulent and void; but it will be noticed that there was neither allegation nor proof of fraud in the case.

If the appellants had a superior lien upon the property in the hands of the receiver appointed by the State court, the proper mode of enforcing that lien was for the receiver of the court below to intervene in the State court by petition, pro interesse suo, where the lien, when established, would have been recognized and duly enforced. Upon establishing the right of the receiver of the court below to the property in the hands of the receiver of the State court, in the mode indicated, the State court would have ordered its officer to deliver the property over to the officer of the United States court. The court below declared the assignment void, appointed a receiver, and compelled the defendant, Brewster, to assign all his interest in the property. This was all the court could do; it could not order the assignees to deliver over property not in their hands, and which they had already delivered to the officer of the State court under its order.

Mr. Justice NELSON delivered the opinion of the court.

title: Chittenden v. Brewster


text: Talk:Chittenden v. Brewster

title: Talk:Chittenden v. Brewster


text:
Chittenden v. Brewster/Opinion of the Court

It does not appear from the proofs in the case, that executions had been issued, and returned unsatisfied, as averred in the bill, and for the proof of which the answer of defendants called; and it is objected by the counsel for the appellees that this defect is fatal to the right of the complainants to maintain their bill. This would be so, if the appellees, against whom the decree was rendered, had appealed from the same, as in the case of Jones v. Green. See also, Day et al. v. Washburn et al. But here the complainants only have appealed, and the rule is settled in the appellate court, that a party not appealing cannot take advantage of an error in the decree committed against himself, and also, that the party appealing cannot allege error in the decree against the party not appealing. If the appellees desired to avail themselves of this error in the decree, they should have brought a cross appeal. By omitting to do so, they admit the correctness of the decree as to them. The case stands before the appellate tribunal the same as if the error had been waived at the hearing.

This brings the case down to the question as to the effect to be given to the suit in the State court; and to the order of that court appointing a receiver, and directing the defendants to assign and set over to him all the effects of the judgment debtor in their hands, under his assignment of the 4th of November, 1857.

The bill in the Circuit Court of the United States, to set aside the assignment to these defendants as fraudulent against creditors, was first filed, and consequently operated as the first lien upon the effects of Brewster, the judgment debtor.

We agree that the defendants, as bailees and trustees of the property intrusted to their care and management for the benefit of the creditors of Brewster, were responsible only for common or ordinary diligence, such as prudent men exercise in respect to their own private affairs. But this degree of diligence the law exacts, and the courts of justice are bound to enforce. When, therefore, the bill was filed against them by the judgment creditors in the Circuit Court of the United States, to set aside the assignment as fraudulent, it was their duty, arising out of their acceptance of the trust, to appear and defend the suit, as they have done, and protect their title to the fund in controversy, so far as the nature of the transaction and the facts and circumstances of the case would admit or warrant. Their whole duty appears to have been discharged in this respect, and we perceive no ground of complaint against them. But, this duty was equally incumbent upon them in respect to the suit in the State court. They should have appeared and defended that suit; and, in addition to the defence on the merits, that is of their faithful execution of the trust, which was impeached by the bill, they should have set up the pending proceedings against them in the Federal court, which tribunal had first acquired jurisdiction over them, and over the fund in dispute, and were entitled to deal with it, and with all questions growing out of the relations existing of debtor and creditor of the parties concerned. Instead, however, of pursuing this course, no defence, as appears, was set up by the defendants to the suit; no answer filed, nor even opposition made to the motion for the appointment of a receiver. The only part they seem to have taken in the proceedings is, besides acknowledging service of the notice of the motion for a receiver, the solicitors entered their appearance in the cause, and gave consent that the motion might be made at the then February Term of the court. It was at once made, and the receiver appointed and gave the requisite security.

Now, we think, here was a clear omission of duty on the part of the defendants, as trustees and bailees of the property in question, and for which they should have been held personally responsible. They should have appeared and defended the suit in the State court, and set up the pending proceedings in the Federal court, which was a complete answer to the jurisdiction of the former; and if this defence had been overruled, a remedy existed by a writ of error to this court, under the 25th section of the Judiciary Act.

The court below, therefore, erred in excepting from the transfer of the effects of the judgment creditors in the hands of the defendants to Moulton, the receiver, the property and effects transferred to Mitchell, under the order of the State court. For this error, the decree of the court below must be reversed, and the cause remanded to the court below, with directions to proceed on the same in conformity with this opinion; but liberty is given to the defendants to require proof before the court of the issuing of executions and return unsatisfied, as averred in the bill of complaint.

DECREE, ETC., ACCORDINGLY.


text: Talk:Chittenden v. Brewster/Opinion of the Court


text: Campbell v. Read

title: Campbell v. Read


text: Talk:Campbell v. Read

title: Talk:Campbell v. Read


text:
Campbell v. Read/Opinion of the Court

THE act of Congress of April 2d, 1816, regulating appeals and writs of error from the Circuit Court of the District of Columbia to this court, limits them to cases in which the matter in dispute is of the value of $1000 or upwards. It provides, however, that if 'any questions of law of such extensive interest and operation as to render the final decision of them by the Supreme Court desirable' are involved in the alleged errors of the Circuit Court, the case may be heard here, even though the matter in dispute is of less value than $1000; and any judge of the court, if he is of opinion that the questions are of such a character, may allow the writ or appeal accordingly.

With this statute in force, Campbell, by will, left legacies to his widow and several illegitimate children; but, after paying them all, a fund of $141 remained in the hands of the executor undisposed of; there being no residuary legatee named in the will, and no parents, &c., legitimate children,

3 Stat. at Large, 261. or collateral relations, who had the right to claim it as next of kin in preference to the widow.

The widow accordingly claimed it under statute. Her claim was opposed by the executor in virtue of an act regulating such matters in the District, and which declares that 'every bequest of personal estate to the wife of a testator shall be construed to be intended in bar of her share of the per sonal estate, unless it be otherwise expressed in the will.' Her right depended, therefore, upon a construction of this statute, and the point before this court was, whether this question was a question of law of such extensive interest and operation as to render the final decision of it, in a case like the present one, by this court, desirable. Under the impression that it might be, or under some misunderstanding, an allocatur had been allowed in vacation by one of the justices of this court. The printed copy of the record showed no certificate that the papers it contained were a transcript of the record, though counsel put nothing on that ground, which was supposed to be an accident only.

Mr. Eames, for the appellant, argued that the question was of such a character as the act of Congress contemplated. It concerned the whole subject of testaments and intestacies in a large and important territory, constantly increasing in population and wealth, the seat of the Federal Government itself. The amount here, indeed, was not large, but the principle, and therefore the 'question of law,' was the same as if the amount was millions.

Mr. Stone, contra.

At a subsequent day, the CHIEF JUSTICE announced briefly the court's opinion, that independently of the record's not showing a proper certificate,-this itself being a sufficient ground for dismissal,-the amount in controversy was insignificant, and that the court was satisfied, on an inspection of the papers, that the allocatur was inadvertently sanctioned. There was, he said, no principle involved of such extensive application as to bring the case within the act of Congress giving jurisdiction on a judge's allocatur when the amount in controversy is less than $1000. Notwithstanding the allocatur, therefore, the case was

DISMISSED.

title: Campbell v. Read/Opinion of the Court


text: Talk:Campbell v. Read/Opinion of the Court


text:
Bank Tax Case

A STATUTE of the State of New York, passed in 1857, making some modifications of previous acts of 1823, 1825, and 1830, enacted that the capital stock of the banks of the State should be 'assessed at its actual value, and taxed in the same manner as other personal and real estate of the country.' After the passage of this act, several of the banks became owners of large amounts of the bonds of the United States, in regard to which Congress enacts that 'whether held by individuals or corporations, they shall be exempt from taxation by or under State authority.' On a question between several banks of New York, formed under the general banking law of 1838 in that State, and the tax commissioners of New York, this court decided, in March, 1863 (Bank of Commerce v. New York City, reported in 2 Black, 620), that the tax referred to was a tax upon the stock; and that being so, it was by the settled law of this court illegally imposed. In April, 1863, just after this decision, the legislature of New York passed another statute, which enacted that 'all banks, banking associations, &c., shall be liable to taxation on a valuation equal to the amount of their capital stock paid in or secured to be paid in, and their surplus earnings, &c., in the manner now provided by law,' &c. On a tax laid, under this act, by the commissioners, upon the different banks of New York City, some of which had invested their whole capital in the securities of the Federal Government, and others of which had largely done so, the question was whether this second act did or did not also impose a tax upon these stocks. The Court of Appeals of New York decided that it did not; and from this decision the case came here. It is proper to say that by the general banking law of New York, under which all these banks were created, it is enacted that the legislature may at any time alter or repeal the act. Between twenty and thirty banks being now here as plaintiffs in error, and the question being one of magnitude both in amount and in principle, as many of the corporations as wished to be heard were heard, though the principle involved was much the same in the case of each.

Messrs. Devlin, Brady, and Kernan, for the tax commissioners: These corporations are created by the State, and endowed by it with valuable franchises. That the corporations should pay the State for these is obvious. To make them pay is the purpose of the act. The tax is imposed upon corporations directly and specifically. It is not imposed upon their property. The thing is the same in substance as though the State required the corporation to pay annually into the State treasury a specified sum for the privileges and franchises granted. It is to be paid irrespective of the character of the securities held by the bank. Instead, for example, of requiring a specified sum to be paid annually, the law requires the corporation to pay to the State annually an amount equal to the tax which would be levied, for State purposes, 'on a valuation equal to the amount' of the nominal capital stock of the bank. This is more just than to exact a fixed sum annually. The reference in the statute to 'a valuation equal to the amount of their capital stock, paid in or secured to be paid in, and their surplus earnings,' is only for the purpose of fixing the amount which the corporations are annually to pay for their franchises. It has no regard to the actual capital owned by the bank, or to the securities, or the value of the securities held by it.

Concede, for the sake of argument, that the burden imposed by the act of 1863 upon the banks indirectly affects the United States securities by diminishing the inducements to the banks to invest in them, how does this render the act invalid? The State was under no obligation to create these corporations to aid directly or indirectly the Federal Government in exercising its powers. Without violating the Constitution of the United States, the State might, by the original act creating them, have required these banks to make State stocks or mortgages the basis of and security for the redemption of the notes they were authorized to issue, and to invest all their capital and funds in these securities, to the exclusion of United States stocks. The State is not bound to continue the existence of the banks because they aid the Federal Government. They are created by power of the State, and by the express provisions of their charter exist only during its pleasure. They were created for the benefit of the people of the State, and whenever, in the judgment of the legislature, the good of the State requires it, they may be abolished, notwithstanding they were beneficial to the Federal Government in the exercise of its power to borrow money. Hence, while the State cannot tax the bonds issued by the United States held be these institutions, it can compel them to contribute to State burdens, as the price of their existence, the same amount as though they did not hold such bonds. The fact, if it be so, that this action of the State will tend to prevent these institutions from investing in United States bonds, does not render the same unconstitutional any more than their non-creation would be a failure by the State to perform its constitutional duty, or the repeal of their charters would be a violation of the constitution. Being the creatures of State power, the State may legitimately so create and burden them that they shall subserve the interest of the State, rather than the interest of the Federal Government. It is to be observed that in this action the State does not, in any just sense, obstruct the exercise of its legitimate power by the Federal Government. It simply fails to give it incidental aid. It so legislates that the State, rather than the Federal Government, derives advantages from an institution created and continued by legitimate State authority. What is there unpatriotic or unconstitutional in this? The sovereignty of a State extends to everything which exists by its own authority, or is intro duced by its permission.

Messrs. Daniel Lord, A. W. Bradford, B. D. Silliman, Marshall Spring Bidwell, Benedict, Bonney, Van Winkle, and others, contra, for different Banks: It is of no consequence whether a tax be levied on a person natural or artificial in respect to property, or on the property itself. Under any system where property is the criterion of taxation, and affords the basis of a rate or assessment, the tax may be said to be a tax upon the property, or a tax upon the person or institution, owning it, in respect to such property. It is only a different mode of announcing the same proposition. 'In New York, all taxation is upon property. It is the same thing in substance, to say that it is upon the owner in respect to property.' There may be a difference in the mode of assessing and valuing the property of a person and the property of a corporation; but supposing the mode the same in each case, viz., that of actual valuation, then as to exemptions under the Constitution of the United States, the position of a bank 'is the same as that of an individual tax-payer. It is, as a general rule, assessed and taxed for all its property of every kind; but there is an exception as to such part of its property, as the Constitution and laws of the Union, and of the States, have upon special reasons of policy, declared shall be exempted. Whether such exempt property is found in the hands of an individual, or in the possession of a corporation taxed upon the actual value of its capital, the rule is the same, the exempt property is to be deducted from the aggregate valuation, and the tax is to be imposed on the residue.' The privilege of exemption from taxation on so much property as may have been lent to the Government of the United States, cannot be made to depend on the mode of valuation, either of the property of an individual, or of a corporation. If so dependent, it is obvious that the immunity of the Government from taxation upon its means of borrowing money amounts to nothing. Such a method of taxing is equivalent to saying, property shall be taxed without reference to its mode of investment. Thus, exemption would be avoided by simply refusing to consider what constitutes the basis of exemption. And this can be done as well with reference to individuals as corporations. Individuals may be taxed on a valuation equal to the cost-price of their property, 'paid, or secured to be paid.' This would be just as definite and invariable as the assessment of corporations on a 'valuation' equivalent to the amount of capital stock paid in, or secured to be paid in, and so exemption from taxing Government stock be avoided altogether.

The immunity from taxation arises from the fact of having lent money to the Government, and taken evidences of debt in lieu thereof. Exemption, in other words, arises from having parted with capital, and being the present owner of Government securities.

The State cannot tax the security in any way; but instead of taxing what the bank has now, it taxes what the bank had, i. e., what it had when it commenced business; or else it taxes what it has now, at a valuation of what it had when it commenced business. It is quite clear, therefore, that one who has lent his money to the Government, though he is not taxable on United States securities, is really taxed on the sum which he has lent to the Government. It is manifestly the same thing to tax the security and to tax the money which produced the security. In either case alike, the power of the Government to borrow money is taxed by the State. But this power cannot be taxed. By the Constitution of the United States, Congress has power 'to borrow money on the credit of the United States.' This is one of the constitutional means which the Government of the United States is authorixed to employ for its national purposes. As such, it is entirely, beyond the interference, legislation, and dominion of the States. This is not a concurrent power with taxation, but a concurrent power with the right to borrow. Powers to be concurrent must be in pari materi a. The principle of the exemption is based upon the National Sovereignty and the supremacy of the Constitution, and all acts of the Government lawfully performed under it. The National Sovereignty being conceded, 'it is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in the subordinate governments, as to exempt its own operations from their influence.'

These principles have been determined by this court, and must be conceded. Hence, it is sought to argue that the State does not tax the power to borrow money, nor the credit of the Gevernment, nor the evidence of debt in the hands of the lender; but only taxes the lender upon a fixed valuation, without regard to the manner in which his property has been invested; in other words, that the mode of investment is indifferent. The answer to this suggestion is, that the tax necessarily falls on the Government, in whatever way it is effected. The tax affects the value of the stock. The Government which borrows money, subject to taxation, will receive as much less per centum from the lender as would nearly equal a capital sufficient to raise an interest equivalent to the rate of taxation. Stock which at par would pay six per cent. interest without taxation, would only be worth sixty-six, if the lender be obliged to pay a tax of two per cent. The tax is evidently a direct and immediate impediment to the power of borrowing money. If it reached six per cent., it would exclude the Government from the market, and annihilate a constitutional power essential to the existence of the Government. 'To tax the contract when made must operate upon the power to borrow, before it is exercised, and have a sensible influence on the contract.' All taxes upon the transfer of property from lender to borrower fall finally, as well as immediately, upon the party to whom the property is transferred or lent. The lender looks to his net income.

It being obvious that the burden of the tax, in whatever mode levied, falls upon the National Government, the converse is equally true, that the privilege of exemption inures to the benefit of the Government. It is not individuals-not the lenders who are benefited, but the United States. If the lender is exempted, the Government has the advantage. And this privilege is one which appertains to all the functions of the Government, arising as it does from the supremacy of the Government.

It follows, that any method of State taxation which bears upon the power of the United States to borrow money is invalid.

Mr. Justice NELSON delivered the opinion of the court.

title: Bank Tax Case


text: Talk:Bank Tax Case

title: Talk:Bank Tax Case


text:
Bank Tax Case/Opinion of the Court

The question involved is, whether or not the stock of the United States, in which the capital of the Bank of the Commonwealth is invested, is liable to taxation by the State of New York, under an act passed by its legislature 29th of April, 1863, or, to state the question more directly, whether or not that act omposes a tax upon these stocks thus invested in the capital of the bank?

It will be remembered that the previous act, the act of 1857, directed that the capital stock of the banks should be assessed and taxed at its actual value. By the present act, as is seen, the tax is imposed on a valuation equal to the amount of their capital paid in or secured to be paid in, &c.

Looking at the two acts, and endeavoring to ascertain the alteration or change in the law from the language used, the intent of the law-makers would seem to be quite plain, namely, a change simply in the mode of ascertaining or fixing the amount of the capital of the banks, which is made the basis of taxation. By the former, the actual value of the capital, as assessed by the commissioners, is prescribed. By the latter, the capital paid in or secured to be paid in, in the aggregate, is the valuation prescribed. By the former, the commissioners were bound to look into the financial condition of the banks, into the investments of their capital, losses, and gains, and ascertain the best way they can the sum of present value as the basis of taxation. By the latter, they need only look into the condition of the banks in order to ascertain the amount of the capital stock paid in, or secured to be paid in; and this sum, in the aggregate, will constitute the basis. The rule of the present law is certainly more simple and fixed than that of the former, and much less burdensome to the commissioners or assessors, and in its practical operation is, perhaps, as just. The former mode involved an inquiry into the whole of the financial operations of the bank, its several liabilities, and its available resources; often a complicated and difficult undertaking, and, at best, of uncertain results.

In order more fully to comprehend the meaning of the language used in the act of 1863, it may be well to refer, for a moment, to the system of the general banking law of 1838, and the amendments of the same, under which these institutions have been organized.

Any number of persons may associate to establish a bank under this law, but the aggregate amount of capital stock shall not be less than $100,000. The instrument of association must specify, among other things, the amount of the capital stock of the association, and the number of shares into which the same shall be divided. It may also provide for an increase of their capital and of the number of the associates, from time to time, as may be thought proper. The association is required to deposit with the superintendent of the bank department stocks of the State of New York or of the United States, or bonds and mortgages upon real estate, at a prescribed valuation, before any bills or notes shall be issued to it for circulation as currency. Nor can it commence the business of banking until these securities have been deposited to the amount of $100,000. The public debt and bonds and mortgages are to be held by the superintendent exclusively for the redemption of the bills and notes put in circulation as money until the same are paid. And it is made the duty of the superintendent not to countersign any bills or notes for an association to an amount, in the aggregate, exceeding the public debt, or public debt and bonds and mortgages so pledged. It is true, the associations are not obliged to invest more of their capital paid in in stocks, or stocks and bonds and mortgages, than is required as security, with the superintendent, for the bills and notes delivered for circulation as currency. The investment, however, cannot be for a less amount than $100,000. It may exceed that limit. But this reference to the system shows that however large the amount of the capital of the association, fixed by its articles and paid in, the whole or any part of it may be lawfully invested in these stocks. The whole need not be used as a pledge for the redemption of the bills or notes as currency, as the issuing of these for circulation is only one branch of the business of banking. The banks, therefore, were but obeying the injunction of the law in investing the capital paid in in these stocks.

Now, when the capital of the banks is required or authorized by the law to be invested in stocks, and, among others, in United States stock, under their charters or articles of association, and this capital thus invested is made the basis of taxation of the institutions, there is great difficulty in saying that it is not the stock thus constituting the corpus or body of the capital that is taxed. It is not easy to separate the property in which the capital is invested from the capital itself. It requires some refinement to separate the two thus intimately blended together. The capital is not an ideal, fictitious, arbitrary sum of meney set down in the articles of association, but, in the theory and practical operation of the system, is composed of substantial property, and which gives value and solidity to the stock of the institution. It is the foundation of its credit in the business community. The legislature well knew the peculiar system under which these institutions were incorporated, and the working of it; and, when providing for a tax on their capital at a valuation, they could not but have intended a tax upon the property in which the capital had been invested. We have seen that such is the practical effect of the tax, and we think it would be doing injustice to the intelligence of the legislature to hold that such was not their intent in the enactment of the law.

We will add, that we have looked with some care through the statutes of New York relating to the taxation of moneyed corporations, including the act of 1823, in which the first material change was made in the system, the act of 1825, the revision of 1830, the acts of 1857 and of 1863; and it will be seen in all of them that the tax is imposed on the property of the institutions, as contradistinguished from a tax upon their privileges or franchises. Since the act of 1825, the capital has been adopted as the basis of taxation, as furnishing the best criterion of the value of the property of which these institutions were possessed. Under their charters or articles of association, this amount was paid in, or secured to be paid in, by the stockholders or associates to the corporate body, or ideal person, constituting the capital stock, to be managed and disposed of by directors or trustees in furtherance of the objects and purposes for which the institutions were created. It constituted the fund raised by the corporators, with which the institutions began and carried on the particular business in which they were engaged. The injunction of the charters, which required this capital to be paid in, made it necessarily substantial property. The amount might fluctuate according to the good or ill fortune of the enterprise. It might become enhanced by gains in business, or diminished by losses but, whether the one or the other, the tax in contemplation of the legislature and of the charters was imposed on the property of the institution consisting of its capital. In case of a permanent loss, a remedy against grievous taxation was always at hand by a reduction of the capital.

Having come to the conclusion that the tax on the capital of the Bank of the Commonwealth is a tax on the property of the institution, and which consists of the stocks of the United States, we do not perceive how the case can be distinguished from that of the Bank of Commerce v. New York City, 2 Black, 620, heretofore before this court.

JUDGMENT REVERSED, and the cause remitted, with directions to enter judgment in conformity with this opinion.

title: Bank Tax Case/Opinion of the Court


text: Talk:Bank Tax Case/Opinion of the Court

title: Talk:Bank Tax Case/Opinion of the Court


text:
Florentine v. Barton

A GENERAL statute of Illinois, passed at an early day, enacted that, when any administrator whose intestate had died leaving real estate, should discover that the personal estate was insufficient to pay his debts, such administrator should make and deliver to the Circuit Court of the county, an account of the debts and personal estate of such his intestate, with a petition requesting aid of said court by its order of sale of a part of the real property.

The act was full, minute, and stringent in its requirements of notice to the heirs of the interestate, with 'a copy of the account and petition.' It directed 'due examination' by the court of all objections made by any one, and that sale of so much of the realty as would pay the debts should, from time to time, be ordered, or the whole, if requisite, only in case the court should find that the personalty was insufficient to do so. But the act directed that no sale not a public one, made in open hours of day, and upon full public notice, and with a description, to 'common certainty,' of the land, should be made at all.

With this general statute in existence and force, the legislature of Illinois passed, in 1821, a private act, reciting that Beck and O'Harra, administrators of Aron Crane, had, by petition to it, set forth that the said Crane, late of Missouri, had died intestate, not leaving sufficient personal estate to pay his debts, but leaving real estate; and enacting that the said Beck and O'Harra should have power to sell such part of his real estate as they might at any time be ordered to do by the proper court, for the payment of his debts; and that such sales 'may be made at private sale instead of public sale,' notwithstanding the above recited general act. It was provided, however, that before any sale was completed, it should be reported to one of the judges of the court allowing it, and be approved by him.

The administrators accordingly made a petition to the State Circuit Court. Neither the petition, however, nor any other proceeding except the record of court, now appeared. This record recited a petition setting forth that the personal estate was not sufficient to pay debts, and praying an order to sell certain parts of the real estate, for the purpose of paying them, agreeably to the private act of legislature already referred to, and concluding with an order that the administrators should sell an item described. But there was no mention whatever in the record, that any notice had been given to heirs or to anybody, or that the estate was in any way indebted.

Ten days after order made, the administrators sold the property, and their sale was reported by them to one of the judges of the court, which allowed it, and by him was approved. This was in A. D. 1823.

Ejectment for the land thus sold was now brought, A. D. 1857, in the Federal court for the Northern Circuit of Illinois, by Florentine, who had purchased, in 1856, from the heirs of Crane, against Barton, claiming under the vendee of the administrators. Judgment was given for the defendant, which was the error assigned.

Grimshaw, for the plaintiff in error: Men can be deprived of their property only by law. Law is a rule of civil conduct. A rule is general and universal. The act under consideration is not a rule, but an edict or decree limited to an individual case; hence it is not a law, and not within the legislative power. It is not intended to deny altogether the power of the legislature to pass private or special acts. There are many transactions of agency or negotiation which may be done by special act. But the legislature has no power to pass a special act, or, which is the same thing, make an edict, by which an individual is to be deprived of his property, in violation of the general laws of the State. This is undeniably true in principle, and the only obstacle in the way of its universal recognition is legislative usage. It is admitted that Colonial and State legislatures have frequently passed acts in violation of this principle, and that such acts have, in a few instances, been sanctioned by judicial decisions; but since the adoption of our American constitutions, their validity has always been questioned, and the weight of legislative, as well as judicial authority, is against their validity. When they have been sanctioned, it has been under the pressure of expediency, at the sacrifice of principle.

In a Kentucky case, Judge Underwood, after deciding an act of the Kentucky legislature, which forfeited lands to the commonwealth, and then gave them to the occupant, unless the owner, in a given time after the passage of the act, should make certain improvements on them, to be unconstitutional, says: 'I do not admit that there is any sovereign power, in the literal meaning of the terms, to be found anywhere in our system of government. The people possess, as it regards their governments, a revolutionary sovereign power: but so long as the governments remain, which they have instituted to establish justice, and to secure the enjoyment of the right of life, liberty, and property, and of pursuing happiness, sovereign power, or, which I take to be the same thing, power without limitation, is nowhere to be found in any branch or department of the Government, either State or National; nor, indeed, in all of them put together.'

In Massachusetts, the court held, in one case, that a resolve of the State legislature, authorizing an individual, whose claim was barred by the statute of limitations, to bring a suit for its recovery, was void. They say it is 'clear that the court in which the action may be pending, must determine it according to law. If any other rule should be adopted in deciding the case, one party or the other would be deprived of that protection which is guaranteed by our constitution to every citizen, in the enjoyment of his life, liberty, and property, according to standing laws.'

In another case, the same court refers to and approves this decision, and upon the same general reasoning, with additional illustrations, decides that a resolve of the legislature, directing a judge of probate to take an administration bond in a particular case, in a mode different from that prescribed by the general laws of the State, was void.

In Maine, the case just cited is referred to and approved, and, upon the same general reasoning, the court decided that an act granting an appeal in a certain case, was void. The general doctrine is asserted, that the legislature has no authority, under the constitution, to pass any act or resolve, granting an appeal or a new trial in any case, between private citizens, or dispensing with any general law in favor of a particular case.

In Ex parte Bedford, Hickey, J., touching upon our exact cases, says: 'The legislature have not the power, as is supposed, to pass a law for the sale of a man's property, because he is indebted. They have the power to subject the lands of a debtor to sale for the satisfaction of the judgments and decrees of the judicial tribunal; but they have not the power to direct by statute, that the land, or any estate of any man, shall be sold for the satisfaction of any debt, which they may be informed or believe he owes. The creditor must appeal to the proper judicial tribunal, and there establish his claim; and, after he has a judgment or decree, the law then prescribes what estate is liable for the satisfaction of such judgment or decree.'

In New Hampshire it has been declared by their Supreme Court that the legislature of that State could not, by a special act or resolve, authorize the guardian of minors to make a valid conveyance of the real estate of his wards.

Other States, except Pennsylvania, where, from want of a court of chancery, their legislature, from early days, exercised anomalous powers, would furnish similar precedents.

But, supposing the statute to have been legal, there is no evidence that its requisitions were complied with. All ex parte proceedings being liable to abuse, must be strictly confined to the ground covered by the law.

This principle is nowhere more exactly declared than in Illinois. In Smith v. Hileman, their court say: 'A special power, granted by statute, affecting rights of individuals, and which divests the title to real estate, ought to be strictly pursued, and should appear to be so on the face of the proceedings.' In the same book, though in another case, it says: 'As the proceedings under the statute are summary, it should be strictly complied with.' In both cases the court did but declare what Lord Mansfield says in Rex v. Coke: 'This is a special authority, delegated by act of Parliament to particular persons, to take away a man's property and estate against his will; therefore it must be strictly pursued, and must appear to be so upon the face of the order.'

Now, the power conferred by the private act of the Illinois legislature was a power to sell for the payment of debts. The existence of debts was, therefore, a condition upon which the power depended, and which the defendant was bound to prove. And this could only be proved by the record of the Probate Court.

The mere order of sale made by the State Circuit Court does not prove the existence of debts. It might, indeed, prove it inferentially, if the order had been made by the State Circuit Court in the exercise of its general jurisdiction, after it had a acquired jurisdiction of the persons of the heirs of Crane, by notice served on them or by publication. But as the Circuit Court made that order in the exercise of a special jurisdiction conferred by a private act without any notice whatever, the order can have no such effect. There can be no presumptions of facts not directly asserted by the order, particularly not of facts which, by law, must be established by another court, and which could only be proved in the Circuit Court by the record of that other court.

Mr. Justice GRIER delivered the opinion of the court.

title: Florentine v. Barton


text: Talk:Florentine v. Barton

title: Talk:Florentine v. Barton


text:
Florentine v. Barton/Opinion of the Court

The land in dispute, in this case, was sold by order of a court some forty years ago, to pay the debts of its deceased owner. The heirs seem to have acquiesced in the regularity and justice of this proceeding till the plaintiff in error, a few years ago, obtained from them a release of their title, doubtless for the purpose of this litigation.

By the law of Illinois, the lands of one deceased are liable for the payment of his debts. The Circuit Court of the county in which the administration is granted has jurisdiction to order their sale for that purpose. The petition of the administrator, setting forth that the personal property of the deceased is insufficient to pay such debts, and praying the court for an order of sale, brought the case fully within the jurisdiction of the court. It became a case of judicial cognizance, and the proceedings are judicial. The court has power over the subject-matter and the parties. It is true, in such proceedings, there are no adversary parties, because the proceeding is in the nature of a proceeding in rem, in which the estate is represented by the administrators, and, as in a proceeding in rem in admiralty, all the world are parties. In making the order of sale, the court are presumed to have adjudged every question necessary to justify such order or decree, viz., the death of the owner; that the petitioners were his administrators; that the personal estate was insufficient to pay the debts of the deceased; that the private act of Assembly, as to the manner of sale, was within the constitutional power of the legislature; and that all the provisions of the law, as to notices which are directory to the administrators, have been complied with. 'The court having a right to decide every question which occurs in a cause, whether its decision be correct or otherwise, its judgment, until reversed, is binding on every other court.' The purchaser, under such a sale, is not bound to look rurther back than the order of the court, or to inquire as to its mistakes. The court is not bound to enter on record the evidence on which any fact was decided. The proceedings on which the action of the court is grounded, are usually kept on separate papers, which are often mislaid or lost. A different doctrine would (especially after a lapse of over thirty years) render titles under a judicial sale worthless, and a 'mere trap for the unwary.' These propositions will be found discussed at length and fully decided by us in Grignon's Lessee v. Astor. Any further argument in vindication of them would be superfluous.

The question raised as to the constitutional power of the legislature of Illinois to pass the private acts modifying the general course of proceedings in similar cases, was necessarily decided by the Circuit Court of the State, under whose order and supervision this sale was made. The State court is the proper tribunal to construe and determine the validity of the enactments of their own legislature.

But assuming the question to be open for our decision, we see no reason to doubt the authority of the legislature to pass such acts as are now complained of, without infringing the Constitution of the State or of the United States. Such legislation is remedial, not judicial. It infringes no contract; it is not ex post facto, nor even retrospective; it is not the usurpation of judicial powers; it authorizes the administrators to sell at private sale, and not at public auction, as by the general law, but not till ordered by the proper court. Every question of a judicial nature was left to the judgment of the court. It must order the sale, and approve it when made. There may have been many reasons why it would be for the benefit of the estate and the creditors that the land should be sold at private and not at public sale. The legislature, by this private act, direct only the manner of sale; the courts are to judge of its necessity. Statutes are to be found in almost every State in the Union giving authority to guardians to sell the real estate of their wards, and usually requiring the supervision and approbation of a court. The power of the legislature to grant such special authority to guardians has been generally admitted. In a case in Illnois, it is said by their Supreme Court that, 'to deny this power to the legislature in this view of its action, would almost annihilate its powers.' Yet there was an assumption of power in that case far exceeding anything to be found in the present.


text: Talk:Florentine v. Barton/Opinion of the Court


text: Cooke v. United States (69 U.S. 218)

title: Cooke v. United States (69 U.S. 218)


text: Talk:Cooke v. United States (69 U.S. 218)


text:
Cooke v. United States (69 U.S. 218)/Opinion of the Court

In this case the United States had obtained a judgment for $3796.80 against Cooke, who to the same took a writ of error.

The Attorney-General now moved the court to dismiss the cause for want of jurisdiction, and assigned for reason that since the issuing and serving of the writ of error, an act of Congress had reduced the amount in controversy below the sum of $2000.

On referring to the act, it appeared to authorize a remission of $2500 from the $3796.80, for which judgment had been obtained; but the remission was offered on condition of payment of the remaining $1296.80: and nothing was put before the court to show that Cooke had availed himself of the offer made.

It does not appear that the proposition has been accepted; and if not, the amount in controversy remains unaffected. But had the alleged reduction been made by an actual payment, the jurisdiction of the court would not be taken away. The jurisdictional facts existed at the time of issuing and serving the writ of error. By its issue and service the court obtained jurisdiction over the cause, and this jurisdiction once acquired, cannot be taken away by any change in the value of the subject of controversy.


text: Talk:Cooke v. United States (69 U.S. 218)/Opinion of the Court