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Bank of Kentucky v. Adams Express Company Planters' National Bank of Louisville/Opinion of the Court

The defendants in each of these cases are an express company, engaged in the business of carrying for hire money, goods, and parcels, from one locality to another. In the transaction of their business they employ the railroads, steamboats, and other public conveyances of the country. These conveyances are not owned by them, nor are they subject to their control, any more than they are to the control of other transporters or passengers. The packages intrusted to their care are at all times, while on these public conveyances, in the charge of one of their own messengers or agents. In conducting their business, they are associated with another express company, called the Southern; and the two companies are engaged in carrying by rail through Louisiana and Mississippi, to Humboldt, Tenn., and thence over the Louisville and Nashville Railroad to Louisville, Ky., under a contract by which they divide the compensation for carriage in proportion to the distance the package is transported by them respectively. Between Humboldt and Louisville both companies employ the same messenger, who is exclusively subject to the orders of the Southern Express Company when south of the northern boundary of Tennessee, and to the orders of the defendants when north of that boundary.

Such being the business and occupation of the defendants, they are to be regarded as common carriers, and, in the absence of stipulations to the contrary, subject to all the legal responsibilities of such carriers.

On the twenty-sixth day of July, 1869, the Southern Express Company received from the Louisiana National Bank at New Orleans two packages, one containing $13,528.15, for delivery to the Bank of Kentucky, Louisville, and the other containing $3,000, for delivery to the Planters' National Bank of Louisville, at Louisville. The money belonged to the banks respectively to which the packages were sent. When the packages were thus received, the agent of the Southern Express Company gave a receipt, or domestic bill of lading, for each, of which the following is a copy (the two differing only in the description of the consignees and in the amount of money mentioned):--

SOUTHERN EXPRESS COMPANY, EXPRESS FORWARDERS.

'No. 2. $13,528.15.

July 26, 1869.

'Received from Lou. Nat. Bank one package, sealed, and said to contain thirteen thousand five hundred and twenty-eight 15/100 dollars.

'Addressed Bank of Kentucky, Louisville, Ky. Freight coll.

'Upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and then to deliver the same to other parties to complete the transportation, such delivery to terminate all liability of this company for such package; and also that this company are not to be liable in any manner or to any extent for any loss, danger, or detention of such package or its contents, or of any portion thereof, occasioned by the acts of God, or by any person or persons acting or claiming to act in any military or other capacity in hostility to the government of the United States, or occasioned by civil or military authority, or by the acts of any armed or other mob or riotous assemblage, piracy, or the dangers incident to a time of war, nor when occasioned by the dangers of railroad transportation, or ocean or river navigation, or by fire or steam. The shipper and owner hereby severally agree that all the stipulations and conditions in this receipt shall extend to and inure to the benefit of each and every company or person to whom the Southern Express Company may intrust or deliver the above-described property for transportation, and shall define and limit the liability therefor of such other companies or person. In no event is this company to be liable for a greater sum than that above mentioned, nor shall it be liable for any such loss, unless the claim therefor shall be made in writing, at this office, within thirty days from this date, in a statement to which this receipt shall be annexed.

'Freight coll.

'For the company,

SHACKLEFORD.' Across the left-hand end of said receipt was the following printed matter:--

'Insured by Southern Express Company for _____ to _____ only except against loss occasioned by the public enemy.

'For the company—

'Insurance, $_____'

The bills of lading were sent to the consignees at Louisville.

Having thus received the packages, the Southern Express Company transported them by railroad as far as Humboldt, Tenn., and there delivered them to the messenger of the defendants (who was also their messenger) to complete the transportation to Louisville, and to make delivery thereof to the plaintiffs. For that purpose the messenger took charge of them, placing them in an iron safe, and depositing the safe in an apartment of a car set apart for the use of express companies, for transportation to Louisville. Subsequently, while the train to which the car containing the packages was attached was passing over a trestle on the line of the Louisville and Nashville Railroad, and while the packages were in charge of the messenger, the trestle gave way during the night, the train with the express car was thrown from the track, and the car with others caught fire from the locomotive and was burned, together with the money in the safe. The messenger was rendered insensible by the fall, and he continued so until after the destruction was complete. There was some evidence that some of the timber of the trestle seemed decayed.

Upon this state of facts the learned judge of the Circuit Court instructed the jury, that, 'If they believed the package was destroyed by fire, as above indicated, without any fault or neglect whatever on behalf of the messenger or defendants, the defendants have brought themselves within the terms of the exceptions in the bill of lading, and are not liable.' And again, the court charged: 'It is not material to inquire whether the accident resulted from the want of care, or from the negligence of the Louisville and Nashville Railroad Company, and its agents, or not.' And again: 'But when he (the common carrier) has limited his liability, so as to make himself responsible for ordinary care only, and the shipper to recover against him is obliged to aver and prove negligence, it must be his negligence, or the negligence of his agents, and not the negligence of persons over whom he has no control. If in his employment he uses the vehicles of others, over which he has no control, and uses reasonable care,-that is, such care as ordinarily prudent persons engaged in like business use in selecting the vehicles,-and if the loss arises from a cause against which he has stipulated with the shipper, he shall not be liable for the same, unless it arises from his want of care, or the want of care of his employes.' At the same time, the learned judge instructed the jury as follows: 'Without, therefore, deciding whether or not the evidence adduced in the case tends to establish any want of reasonable or ordinary care on the part of the Louisville and Nashville Railroad Company, I instruct you, that such evidence is irrelevant and incompetent, and that you should disregard it; that is, give no more effect to it than if it had not been adduced.'

These extracts from the charge, to all of which exception was duly taken, exhibit the most important question in these cases, which is, whether the stipulations of the carriers' receipt or bill of lading relieved them from responsibility for the negligence of the railroad company employed by them to complete the carriage. The Circuit Court was of opinion, as we have seen, that they did; and practically instructed the jury, that, under the modified contract of bailment, the defendants were liable for loss by fire only to the extent to which mere bailees for hire, not common carriers, are liable; that is, that they were responsible only for the want of ordinary care exercised by themselves or those who were under their control. With this we cannot concur, though we are not unmindful of the ability with which the learned judge has defended his opinion.

We have already remarked, the defendants were common carriers. They were not the less such because they had stipulated for a more restricted liability than would have been theirs had their receipt contained only a contract to carry and deliver. What they were is to be determined by the nature of their business, not by the contract they made respecting the liabilities which should attend it. Having taken up the occupation, its fixed legal character could not be thrown off by any declaration or stipulation that they should not be considered such carriers.

The duty of a common carrier is to transport and deliver safely. He is made, by law, an insurer against all failure to perform this duty, except such failure as may be caused by the public enemy, or by what it denominated the act of God. By special contract with his employers, he may, it is true, to some extent, be excused, if the limitations to his responsibility stipulated for are, in the judgment of the law, reasonable, and not inconsistent with sound public policy. It is agreed, however, that he cannot, by any contract with his customers, relieve himself from responsibility for his own negligence or that of his servants; and this because such a contract is unreasonable and contrary to legal policy. So much has been finally determined in Railroad Company v. Lockwood, 17 Wall. 357. But can he, by a contract made with those who intrust property to him for carriage and delivery,-a contract made at the time he receives the property,-secure to himself exemption from responsibility for consequences of the negligence of a railroad company or its agents not owned or controlled by him, but which he employs in the transportation? This question is not answered in the Lockwood case. It is raised here, or rather the question is presented, whether a common carrier does relieve himself from the consequences of such negligence by a stipulation that the shall not be liable for losses by fire.

The exception or restriction to the common-law liability introduced into the bills of lading given by the defendants, so far as it is necessary to consider it, is, 'that the express company are not to be liable in any manner or to any extent for any loss or damage, or detention of such package or its contents, or of any portion thereof, occasioned by fire.' The language is very broad; but it must be construed reasonably, and, if possible, consistently with the law. It is not to be presumed the parties intended to make a contract which the law does not allow. If construed literally, the exception extends to all loss by fire, no matter how occasioned, whether occurring accidentally, or caused by the culpable negligence of the carriers or their servants, and even to all losses by fire caused by wilful acts of the carriers themselves. That it can be operative to such an extent is not claimed. Nor is it insisted that the stipulation, though assented to by the shippers, can protect the defendants against responsibility for failure to deliver the packages according to their engagement, when such failure has been caused by their own misconduct, or that of their servants or agents. But the Circuit Court ruled, the exception did extend to negligence beyond the carriers' own, and that of the servants and agents appointed by them and under their control,-that it extended to losses by fire resulting from the carelessness of a railroad company, employed by them in the service which they undertook, to carry the packages; and the reason assigned for the ruling was, that the railroad company and its employes were not under the control of the defendants. With this ruling we are unable to concur. The railroad company, in transporting the messenger of the defendants and the express matter in his charge, was the agent of somebody: either of the express company, or of the shippers or consignees of the property. That it was the agent of the defendants is quite clear. It was employed by them, and paid by them. The service it was called upon to perform was a service for the defendants; a duty incumbent upon them, and not upon the plaintiffs. The latter had nothing to do with the employment. It was neither directed by them, nor had they any control over the railroad company or its employes. It is true, the defendants had also no control over the company or its servants: but they were its employers, presumably they paid for its service; and that service was directly and immediately for them. Control of the conduct of an agency is not in all cases essential to liability for the consequences of that conduct. If any one is to be affected by the acts or omissions of persons employed to do a particular service, surely it must be he who gave the employment. Their acts become his, because done in his service and by his direction. Moreover, a common carrier who undertakes for himself to perform an entire service has no authority to constitute another person or corporation the agent of his consignor or consignee. He may employ a subordinate agency; but it must be subordinate to him, and not to one who neither employs it nor pays it, nor has any right to interfere with it.

If, then, the Louisville and Nashville Railroad Company was acting for these defendants, and performing a service for them, when transporting the packages they had undertaken to convey, as we think must be concluded, it would seem it must be considered their agent. And why is not the reason of the rule, that common carriers cannot stipulate for exemption from liability for their own negligence and that of their servants and agents, as applicable to the contract made in these cases as it was to the facts that appeared in the case of Railroad Company v. Lockwood? The foundation of the rule is, that it tends to the greater security of consignors, who always deal with such carriers at a disadvantage. It tends to induce greater care and watchfulness in those to whom an owner intrusts his goods, and by whom alone the needful care can be exercised. Any contract that withdraws a motive for such care, or that makes a failure to bestow upon the duty assumed extreme vigilance and caution more probable, takes away the security of the consignors, and makes common carrage more unreliable. This is equally true, whether the contract be for exemption from liability for the negligence of agencies employed by the carrier to assist him in the discharge of his obligations, though he has no control over them, or whether it be for exemption from liability for a loss occasioned by the carelessness of his immediate servant. Even in the latter case he may have no actual control. Theoretically, he has; but most frequently, when the negligence of his servant occurs, he is not at hand, has no opportunity to give directions, and the negligent act is against his will. He is responsible, because he has put the servant in a place where the wrong could be done. It is quite as important to the consignor and to the public, that the subordinate agency, though not a servant under immediate control, should be held to the strictest care, as it is that the carrier himself and the servants under his orders should be.

For these reasons, we think it is not admissible to construe the exception in the defendants' bills of lading as excusing them from liability for the loss of the packages by fire, if caused by the negligence of the railroad company to which they confided a part of the duty they had assumed.

There are other reasons of weight which deserve consideration Express companies frequently carry over long routes, at great distances from the places of destination of the property carried, and from the residence of its owners. If in the course of transportation a loss occurs through the want of care of managers of public conveyances which they employ, the carriers or their servants are at hand. They are best acquainted with the facts. To them those managers of the public conveyances are responsible, and they can obtain redress much more conveniently than distant owners of the property can. Indeed, in many cases, suits by absent owners would be attended with serious difficulties. Besides, express companies make their own bargains with the companies they employ, while they keep the property in their own charge, usually attended by a messenger. It was so in the present case. The defendants had an arrangement with the railroad company, under which the packages of money, enclosed in an iron safe, were put into an apartment of a car set apart for the use of the express company. Yet the safe containing the packages continued in the custody of the messenger. Therefore, as between the defendants and the railroad company, it may be doubted whether the relation was that of a common carrier to his consignor, because the company had not the packages in charge. The department in the car was the defendants' for the time being; and, if the defendants retained the custody of the packages carried, instead of trusting them to the company, the latter did not insure the carriage. Miles v. Cattle, 6 Bing. 743; Towers v. The Utica & Syracuse R. R. Co., 7 Hill (N. Y.), 47; Redf. on Railw., sect. 74.

Now, can it be a reasonable construction to give to the contract between the defendants and the plaintiffs, that the former, who had agreed to carry and deliver the packages at Louisville, reserved to themselves the right to employ a subordinate carrier, arrange with him that he should be responsible only for ordinary vigilance against fire, and by that arrangement relieve themselves from what without it would have been their clear duty? Granting that the plaintiffs can sue the railroad company for the loss of the packages through its fault, their right comes through their contract between it and the defendants. They must claim through that. 6 How. 381. Had the packages been delivered to the charge of the railroad company, without any stipulation for exemption from the ordinary liability of carriers, it would have been an insurer both to the express company and to the plaintiffs. But, as they were not so delivered, the right of the plaintiffs to the extremest constant vigilance during all stages of the carriage is lost, if the defendants are not answerable for the negligence of the railroad company, notwithstanding the exception in their bills of lading. We cannot close our eyes to the well-known course of business in the country. Over very many of our railroads the contracts for transportation of goods are made, not with the owners of the roads, nor with the railroad companies themselves, but with transportation agencies or companies which have arrangements with the railroad companies for the carriage. In this manner, some of the responsibilities of common carriage are often sought to be evaded; but in vain. Public policy demands that the right of the owners to absolute security against the negligence of the carrier, and of all persons engaged in performing the carrier's duty, shall not be taken away by any reservation in the carrier's receipt, or by any arrangement between him and the performing company.

It has been urged on the part of the defence, that, though the contract does not attempt to exempt, and could not have exempted, the express company from liability for loss occasioned by the neglect of itself or its servants, yet, when it is sought to charge the company with neglect, it must be such as it is responsible for upon the general principles of law; and that, upon those principles, no one is responsible for damage occasioned by neglect, unless it be the neglect of himself, his servants, or agents. The argument mistakes, we think, when it asserts, that, upon general principles of law, no one is responsible for the consequences of any neglect except his own, or that of his agents or servants. Common carriers certainly are, and for very substantial reasons. These defendants, it is agreed, were common carriers; and they remained such after the exception in their receipt. If it be said, the exception reduced their responsibility to such an extent as to make them liable only for such neglect as fastens a liability upon persons who are not common carriers, the answer is, such an averment assumes the very thing to be proved; and, even if the argument were sound, the question would still remain, whether the railroad company employed by the defendants to effect the carriage is not properly to be regarded as their agent, though not under their control. That question we have already considered.

Again: it is urged, that, though the defendants remained common carriers, notwithstanding their contract, their responsibility was limited by their receipt to that of an ordinary bailee for hire; and, as such a bailee is not held liable for the neglect of persons over whom he has no control, it is argued that these defendants are not liable for the negligence of the railroad company. This also assumes what cannot be admitted. Although we are told all the authorities agree, that, when a common carrier has by special contract limited his liability, he becomes, with reference to that particular transaction, an ordinary bailee,-a private carrier for hire,-or reduces his responsibilities to those of an ordinary bailee for hire, yet we do not find that the authorities assert that doctrine, if by the phrase 'that particular transaction' is meant the undertaking to carry. Certainly, those to which we have been referred do not. We do not deny that a contract may be made which will put a common carrier on the same level with a private carrier for hire, as respects his liability for loss caused by the acts or omissions of others. The consignor may, by contract, restrain him; may direct how and by what agencies he shall carry. Under such an arrangement he may become a mere forwarder, and cease to be a carrier. But what we have to decide in these cases is, whether the contract proved has that operation. We have already said, we think it has not. The exception in the bills of lading has sufficient to operate upon, without being a cover for negligence on the part of any persons engaged in the service undertaken by the carriers. It exempts the defendants from responsibility for loss by fire, caused by the acts of omissions of all persons who are not agents or agencies for the transportation.

That is a large restriction; and beyond that, in our judgment, the exception in the present case does not extend.

To the opinion we have thus expressed we find direct support in the case of Hooper v. Wells, Fargo, & Co., 27 Cal. 11. There an express company had undertaken to transport gold-dust and bullion from Los Angeles to San Francisco, and deliver to address. The receipt for the property contained the following stipulation: 'In no event to be liable beyond our route, as herein receipted. It is further agreed, and is part of the consideration of this contract, that Wells, Fargo, & Co. are not to be responsible except as forwarders, nor for any loss or damage arising from the dangers of railroad, ocean, or river navigation, fire, &c., unless specially insured by them, and so specified in this receipt.' In the course of the transportation, the messenger of the carriers who had the property in charge took it on board a steam-tug, for the purpose of placing it on a steamer bound to San Francisco. On the way to the steamer, the boiler of the steam-tug exploded, in consequence of carelessness of its officers, and the gold-dust and bullion were thereby lost. The steam-tug did not belong to the express company, nor was it or its officers under their control. Yet the court adjudged that the managers and employes of the steam-tug were in legal contemplation the managers and employes of the carrier, and that the restrictive clause in the receipt did not exempt the carriers from liability for loss occasioned by the carelessness of those employes. To the same effect is the case of Christensen et al. v. The American Ex. Co., 15 Minn. 270, and the case of Machu v. The London & South-western Railway Company, 2 Exch. 415, though arising under the carrier acts of 11 Geo. IV. and 1 Wm. IV., is very analogous. The statute declared that the carrier should be liable to answer for the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his employ. The court considered that all parties actually employed in doing the work which the carrier undertook to do, either by himself or his servants, were to be regarded as his servants, within the meaning of the act. Baron Rolfe said, the right as against the carriers arises not from the relation of master and servant, but by virtue of the contract into which they have entered to deliver the goods. This was said in answer to an argument like the one relied upon in this case, that the relation of master and servant could not exist between the carriers and the servants of a sub-contractor.

The other objections urged against the charge given by the court below to the jury require but brief notice.

We find no error in what the circuit judge said upon the question whether the bills of lading, with the exceptions, constituted the contract between the parties. The charge in this particular is justified by very numerous authoritative decisions. York Company v. Central Railroad Company, 3 Wall. 107; Grace v. Adams, 100 Mass. 505; Wells v. ''The Steam Nav. Co.'', 2 Comst. 204; Dorr v. ''New Jersey Steam Nav. Co.'', 1 Kern. 485; 6 How. 344; 3 Wall. 107; 6 Blatchf. 64; Kirkland v. Dinsmore, 62 N. Y. 161.

Nor was there error in the instruction given respecting the iron safe. Taken as a whole, it was correct.

The charge covered the whole case, and, except in those particulars in which we have indicated our opinion that it was erroneous, we find no just reason to complain of it.

But for the errors we have pointed out new trials must be awarded.

Judgment in each case reversed, and the record remitted with directions to award a venire de novo.


text: Talk:Bank of Kentucky v. Adams Express Company Planters' National Bank of Louisville/Opinion of the Court

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United States v. Forty-Three Gallons of Whiskey

ERROR to the Circuit Court of the United States for the District of Minnesota.

This is a libel of information by the United States against forty-three gallons of whiskey, sundry peltries, and other goods and merchandise, seized as forfeited by virtue of the twentieth section of the act of Congress approved June 30, 1834, as amended by the act approved March 15, 1864.

There are two special counts in the libel. The first, in substance, sets forth, that on Feb. 12, 1872, Bernard Lariviere, a white person, of the village of Crookston, in the county of Polk, and State of Minnesota, did unlawfully carry and introduce into said village, which is located upon the territory ceded to the United States by treaty with the Red Lake and Pembina bands of Chippewa Indians, made and concluded Oct. 3, 1863, and proclaimed May 5, 1864, the spirituous liquors particularly described, contrary to the treaty and the act of Congress above cited; that an Indian agent, duly appointed, having reason to suspect, and being informed, that spirituous liquors had been introduced by said Lariviere into said county of Polk in violation of the act of Congress, searched and caused to be searched the goods, merchandise, peltries, &c., which he had in his possession at Crookston, in the ceded territory aforesaid: upon which search the whiskey was found stored, packed, and mingled with and in the packages, goods, and peltries, and in the places of deposit of said Laraviere, and was so carried and introduced into the ceded territory, contrary to the form of statute of the United States in such case made and provided, and was seized and taken by the Indian agent as forfeited, together with all the goods and peltries, &c., so found.

The second count sets forth that the whiskey was introduced with the intent to sell, dispose of, and distribute the same to and among the bands and tribes of Chippewa Indians who frequented the village of Crookston, and lived under the charge of an Indian agent upon a reservation near that place.

The information prays that the said goods, merchandise, peltries, &c., may be decreed and declared forfeited, and the forfeiture properly enforced.

Lariviere, a claimant, who first appeared in response to the monition, demurred and excepted to the libel, upon the ground that it appeared, from its recitals, that the court had no jurisdiction; that the property never was introduced, nor was it intended to be introduced, into any Indian country; but that it was affirmatively shown by the libel that it was searched and seized at Crookston, in the county of Polk, and State of Minnesota, the same being an organized county, and said Crookston not being in or adjoined to or near any Indian country: hence, that the seizure was without any authority of law, &c. Grant, another claimant, also excepted and demurred, because it appeared in the libel that the goods were seized within the jurisdiction of the State of Minnesota, and not on any lands within any Indian country, or in any country exclusively within the jurisdiction of the United States.

The court below sustained the demurrer and exceptions, and dismissed the libel.

The United States thereupon sued out this writ of error.

The act of March 15, 1864 (13 Stat. 29), is as follows:--

'Be it enacted, &c., That the twentieth section of the 'Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers,' approved June 30, 1834, be, and the same is hereby, amended, so as to read as follows, to wit:--

"SECT. 20. And be it further enacted, That if any person shall sell, exchange, give, barter, or dispose of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States, or shall introduce or attempt to introduce any spirituous liquor or wine into the Indian country, such person, on conviction thereof before the proper district or circuit court of the United States, shall be imprisoned for a period not exceeding two years, and shall be fined not more than $300: Provided, however, That it shall be a sufficient defence to any charge of introducing or attempting to introduce liquor into the Indian country, if it be proved to be done by order of the War Department, or any officer duly authorized thereunto by the War Department. And if any superintendent of Indian affairs, Indian agent, or sub-agent, or commanding officer of a military post, has reason to suspect, or is informed, that any white person or Indian is about to introduce or has introduced any spirituous liquor or wine into the Indian country, in violation of the provisions of this section, it shall be lawful for such superintendent, agent, sub-agent, or commanding officer, to cause the boats, stores, packages, wagons, sleds, and other places of deposit of such person, to be searched; and, if any such liquor is found therein, the same, together with the boats, teams, wagons, and sleds used in conveying the same, and also the goods, packages, and peltries of such person, shall be seized and delivered to the proper officer, and shall be proceeded against by libel in the proper court, and forfeited, one half to the informer and the other half to the use of the United States; and if such person be a trader, his license shall be revoked and his bonds put in suit. And it shall, moreover, be the duty for any person in the service of the United States, or for any Indian, to take and destroy any ardent spirits or wine found in the Indian country, except such as may be introduced therein by the War Department. And in all cases arising under this act, Indians shall be competent witnesses."

Art. 7 of the treaty between the United States, concluded Oct. 3, 1863, and the Red Lake and Pembina band of Chippewa Indians, proclaimed May 5, 1864 (13 Stat. 668), is as follows:--

'The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States.'

Submitted on printed arguments by Mr. Assistant Attorney-General Smith for the plaintiff in error.

Trade with Indian tribes is, in all its forms, subject exclusively to the regulations of Congress. Duer's Const. Jur. 281; Rawle on the Const., c. 9, 84; 2 Story on Const., sects. 1097-1101.

The mere erection of the Territory of Minnesota into a State did not ipso facto cause it to cease to be 'Indian country.' United States v. Bailey, 1 McLean, 235; United States v. Cisna, id. 254; United States v. Ward, 1 Woolw. C. C. 19, 21.

The act of 1834, as amended by that of 1864, is a 'regulation of commerce,' and therefore within the constitutional powers of Congress. United States v. Holliday, 3 Wall. 417.

Congress, having the power to define the 'Indian country,' and prohibit the unlicensed introduction and sale of liquors within it, can either enlarge or diminish the boundaries of such country, as it deems best for the interests of intercourse or commerce.

Where the United States recognizes and declares the tribal condition of Indian bands, the courts will follow. Cherokees v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 id. 515.

The United States has, by treaty with the Indians, extended its laws to the territory in which this liquor was seized.

A treaty, as the law of the land, is superior to any State legislation, and is valid even as a municipal regulation, until superseded by some act of Congress. Ware v. Hylton, 3 Dall. 236; Taylor v. Morton, 2 Curtis, C. C. 454; 1 Story on Const., sect. 1838; Worcester v. Georgia, supra.

By the treaties of 1855 (10 Stat. 1165) and 1863 (13 Stat. 667), the territory upon which the goods in question were seized was transferred to the United States, and ceased to be Indian country. Within its limits the trade and intercourse laws became inoperative, for want of a subject-matter on which they could act.

The extension of those laws to an organized county in Minnesota, by force of a treaty to which the assent of that State was not obtained, is an unauthorized infringement of her jurisdiction. By the act of May 11, 1858, she was admitted into the Union, upon an equal footing with the original States. Treaties made before that date, so far as they provide that the act of 1834 shall extend to territory ceded while Minnesota was a Territory, became ineffectual after her admission into the Union. Subsequent treaties, so far as they exclude her jurisdiction over the ceded territory, interfere with her internal commerce and abridge the rights of her citizens, are an invasion of her sovereignty. A treaty which provides regulations which the Federal government cannot constitutionally impose, is to that extent without validity or binding force.

Mr. M. Lamprey, contra.

MR. JUSTICE DAVIS delivered the opinion of the court.


text: Talk:United States v. Forty-Three Gallons of Whiskey


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United States v. Forty-Three Gallons of Whiskey/Opinion of the Court

It may be that the policy of the government on the subject of Indian affairs has, in some particulars, justly provoked criticism: but it cannot be said, that there has not been proper effort, by legislation and treaty, to secure Indian communities against the debasing influence of spirituous liquors. The evils from this source were felt at an early day; and, in order to promote the welfare of the Indians, as well as our political interests, laws were passed and treaties framed, restricting the introduction of liquor among them. That these laws and treaties have not always secured the desired result, is owing more to the force of circumstances which the government could not control, than to any unwillingness to execute them.

Traffic with Indians is so profitable, that white men are constantly encroaching on Indian territory to engage in it. The difficulty of preventing this intrusion, and of procuring convictions for offences committed on the confines of civilization, are the obstacles in the way of carrying into effect the intercourse laws. It is doubtless true, that they are as well executed as could be expected under the circumstnaces. In this case, the United States, in its endeavors to enforce them, is met with the objection, that they do not apply to the country in which the liquor was seized.

The Red Lake and Pembina band of Chippewa Indians ceded to the United States, by treaty, concluded Oct. 2, 1863, a portion of the lands occupied by them, reserving enough for their own use. The seventh article is in these words: 'The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States.' The ceded country is now part of an organized county of the State of Minnesota; and the question is, whether the incorporation of this article in the treaty was a rightful exercise of power. If it was, then the proceedings to seize and libel the property introduced for sale in contravention of the treaty were proper, and must be sustained.

Few of the recorded decisions of this court are of greater interest and importance than those pronounced in The Cherokee Nation v. The State of Georgia, 5 Pet. 1; and Worcester v. The State of Georgia, 6 Pet. 515. Chief Justice Marshall, in these cases, with a force of reasoning and an extent of learning rarely equalled, stated and explained the condition of the Indians in their relation to the United States and to the States within whose boundaries they lived; and his exposition was based on the power to make treaties and regulate commerce with the Indian tribes. Under the articles of confederation, the United States had the power of regulating the trade and managing all affairs with the Indians not members of any of the States; provided that the legislative right of a State within its own limits be not infringed or violated. Of necessity, these limitations rendered the power of no practical value. This was seen by the convention which framed the Constitution; and Congress now has the exclusive and absolute power to regulate commerce with the Indian tribes,-a power as broad and as free from restrictions as that to regulate commerce with foreign nations. The only efficient way of dealing with the Indian tribes was to place them under the protection of the general government. Their peculiar habits and character required this; and the history of the country shows the necessity of keeping them 'separate, subordinate, and dependent.' Accordingly, treaties have been made and laws passed separating Indian territory from that of the States, and providing that intercourse and trade with the Indians should be carried on solely under the authority of the United States. Congress very early passed laws relating to the subject of Indian commerce, which were from time to time modified by the lessons of experience.

The act of June 30, 1834 (4 Stat. 732), as amended by the act of March 15, 1864 (13 Stat. 29), is the one now in force on this subject. It defines what shall be deemed Indian country, directs the manner in which trade and intercourse with the Indians shall be carried on, and forbids any one, under certain penalties, to give or sell liquor to an Indian in charge of an agent, or to introduce it into the Indian country.

In United States v. Holliday, 3 Wall, 409, the power of Congress to pass the act of 1864 was the main point in controversy. Holliday was indicted for selling liquor in Gratiot County, Mich., to an Indian in charge of an agent. The county was not Indian country, nor did it even have an Indian reservation in it. It was contended, among other things, that the sale of liquor to an Indian, or any other person within the county, was a matter of State regulation, with which Congress had nothing to do. But this court held that the power to regulate commerce with the Indian tribes was, in its nature, general, and not confined to any locality; that its existence necessarily implied the right to exercise it, whenever there was a subject to act upon, although within the limits of a State, and that it extended to the regulation of commerce with the individual members of such tribes. It was also contended that the intercourse act was not a regulation of commerce within the meaning of the Constitution; but the court held otherwise, and said, 'It (the act) relates to buying and selling and exchanging commodities, which is the essence of all commerce, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce, and a very important one.'

The power is in no wise affected by the magnitude of the traffic or the extent of the intercourse. As long as these Indians remain a distinct people, with an existing tribal organization, recognized by the political department of the government, Congress has the power to say with whom, and on what terms, they shall deal, and what articles shall be contraband. If liquor is injurious to them inside of a reservation, it is equally so outside of it; and why cannot Congress forbid its introduction into a place near by, which they would be likely to frequent? It is easy to see that the love of liquor would tempt them to stray beyond their borders to obtain it; and that bad white men, knowing this, would carry on the traffic in adjoining localities, rather than venture upon forbidden ground. If Congress has the power, as the case we have last cited decides, to punish the sale of liquor anywhere to an individual member of an Indian tribe, why cannot it also subject to forfeiture liquor introduced for an unlawful purpose into territory in proximity to that where the Indians live? There is no reason for the distinction; and, as there can be no divided authority on the subject, our duty to them, our regard for their material and moral well-being, would require us to impose further legislative restrictions, should country adjacent to their reservations be used to carry on the liquor traffic with them.

The Indian country, as defined by the act of 1834, was at that date so remote from settlements, that there was no occasion to extend the prohibition beyond its limits. It has since then been so narrowed by successive treaties, that the white population is now all around it, and regarding it with a wistful eye. In view of this changed condition, it would be strange, indeed, if the commercial power, lodged solely with Congress and unrestricted as it is by State lines, did not extend to the exclusion of spirituous liquors intended to corrupt the Indians, not only from existing Indian country, but from that which has ceased to be so, by reason of its cession to the United States. The power to define originally the 'Indian country,' within which the unlicensed introduction and sale of liquors were prohibited, necessarily includes that of enlarging the prohibited boundaries, whenever, in the opinion of Congress, the interests of Indian intercourse and trade will be best subserved.

It is true, Congress has not done this: but the Constitution declares a treaty to be the supreme law of the land; and Chief Justice Marshall, in Foster and Elam v. Neilson, 2 Pet. 314, has said, 'That a treaty is to be regarded, in courts of justice, as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.' No legislation is required to put the seventh article in force; and it must become a rule of action, if the contracting parties had power to incorporate it in the treaty of 1863. About this there would seem to be no doubt. From the commencement of its existence, the United States has negotiated with the Indians in their tribal condition as nations, dependent, it is true, but still capable of making treaties. This was only following the practice of Great Britain before the Revolution. In Worcester v. The State of Georgia, supra, the court say, 'The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well-understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same sense.'

In consequence of this interpretation, a country which, if left to the Indians, would have remained a wilderness, is now occupied by farms, towns, and cities. The only legitimate way to accomplish this beneficent result was by extinguishing the Indian title; and the subject-matter of this treaty is the cession of a large tract of land in the State of Minnesota and the Territory of Dakota. Indeed, the acquisition of territory has been the moving cause of all Indian treaties, and will continue to be so, until Indian reservations are confined to very narrow limits. It is admitted that these had the same right as other tribes to occupy their lands as long as they pleased, and that this right could only be extinguished by voluntary cession to the government. If so, why not annex to the cession a condition deemed valuable to them, and beneficial to the United States, as tending to keep the peace on the frontiers?

The chiefs doubtless saw, from the curtailment of their reservation, and the consequent restriction of the limits of the 'Indian country,' that the ceded lands would be used to store liquors for sale to the young men of the tribe; and they well knew, that, if there was no cession, they were already sufficiently protected by the extent of their reservation.

Under such circumstances, it was natural that they should be unwilling to sell, until assured that the commercial regulation respecting the introduction of spirituous liquors should remain in force in the ceded country, until otherwise directed by Congress or the President. This stipulation was not only reasonable in itself, but was justly due from a strong government to a weak people it had engaged to protect. It is not easy to see how it infringes upon the position of equality which Minnesota holds with the other States. The principle that Federal jurisdiction must be everywhere the same, under the same circumstances, has not been departed from. The prohibition rests on grounds which, so far from making a distinction between the States, apply to them all alike. The fact that the ceded territory is within the limits of Minnesota is a mere incident; for the act of Congress imported into the treaty applies alike to all Indian tribes occupying a particular country, whether within or without State lines. Based as it is exclusively on the Federal authority over the subject-matter, there is no disturbance of the principle of State equality.

Besides, the power to make treaties with the Indian tribes is, as we have seen, coextensive with that to make treaties with foreign nations. In regard to the latter, it is, beyond doubt, ample to cover all the usual subjects of diplomacy. One of them relates to the disability of the citizens or subjects of either contracting nation to take, by descent or devise, real property situate in the territory of the other. If a treaty to which the United States is a party removed such disability, and secured to them the right so to take and hold such property, as if they were natives of this country, it might contravene the statutes of a State; but, in that event, the courts would disregard them, and give to the alien the full protection conferred by its provisions. If this result can be thus obtained, surely the Federal government may, in the exercise of its acknowledged power to treat with Indians, make the provision in question, coming, as it fairly does, within the clause relating to the regulation of commerce.

Minnesota, instead of being injured, is benefited. An immense tract of valuable country formerly withheld from her civil jurisdiction is subjected to it, and her wealth and power greatly increased. Traversed by railroads that were built, in part, at least, with lands which this treaty enabled Congress to grant, the country is open to sale and pre-emption and homestead settlement, and will soon be occupied by a hardy and industrious people. The general government asks in return for this, that the ceded territory shall retain its original status, so far as the introduction within it of spirituous liquors and the sale of them to the Pembina Indians are concerned.

It would seem, apart from the question of power, that the price paid by the State bears no proportion to the substantial and enduring benefits conferred upon her; and we are happy to say, that her officers are not engaged in making this defence.

Judgment reversed, and record remanded with directions to overrule the demurrer and try the case.


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Page:A short history of social life in England.djvu/297

Rh for a solution of this vexed problem to-day. To get money without working for it was the fashion. The passion for gambling reached its climax in this age. A desire to build up a rapid fortune and contempt for the slower results of patient industry seized all classes of society. Company after company was formed, "scheme after scheme of the most fantastic description rose and glittered and burst." There was a company "for making salt water fresh," another for "importing jackasses from Spain." One projector invited subscriptions of two guineas for an undertaking which should in time be revealed: in one day he received two hundred guineas, with which he decamped! Born of this gambling spirit was the famous South Sea Bubble, the bursting of which reduced thousands of families to absolute beggary.

The women of this period were notorious for gambling. Whole estates, jewels and valuable possessions were staked, lost, and won, night after night, through the Georgian period. We hear of certain ladies sitting down daily to the card-table, where the lowest stake was two hundred guineas. It was not regarded as a vice; it was a resource for getting money without working for it. The game of whist, hitherto chiefly played by the clergy, was


text: Talk:United States v. Forty-Three Gallons of Whiskey/Opinion of the Court


text:
Ober v. Gallagher

 * 1) In a suit brought by a citizen of Louisiana, in the Circuit Court of the United States for the Eastern District of Arkansas, to enforce a lien on lands situate within that district, one of the defendants, a citizen of Tennessee, was served with process in Arkansas. Held, that, under the act of Feb. 28, 1839 (5 Stat. 321), such service brought him within the jurisdiction of the court.
 * 2) A court which has acquired rightful jurisdiction of the parties and subject-matter will retain it for all purposes within the general scope of the equities to be enforced.
 * 3) The holder of a note which is secured by mortgage may proceed at law and in equity at the same time, until he obtains actual satisfaction of the debt.

from the Circuit Court of the United States for the Eastern District of Arkansas.

Thompson purchased from Fleming, Jan. 15, 1867, a plantation situated partly in Prairie County and partly in Pulaski County, Ark., at the price of $60,000, to be paid in ten equal instalments, the first March 1, 1867, and the remainder annually thereafter. Notes, negotiable in form, and expressing on their face that their consideration was the purchase of this plantation, were executed by Thompson to Fleming for the several instalments, payable at the times agreed upon. On the same day, the date of the purchase, Fleming and his wife conveyed the property to Thompson by a deed in which, after a recital of the notes for the purchase-money, was the following: "But it is expressly agreed by the parties of the first and second part, that the said parties of the first part shall, and do hereby, retain a lien upon all of said lands for the payment of said ten promissory notes given for the purchase-money, and, when the same are fully paid off, said lien is to stand released and discharged." This deed was recorded in Pulaski County, Feb. 26, 1867. It was also duly recorded in Prairie County.

At the time of the purchase, Thompson was a citizen of Louisiana, and Fleming, of Arkansas. The note falling due March 1, 1867, was paid Jan. 19, 1867; and on March 20, 1867, Fleming transferred all the other notes, by indorsement, to Gallagher, a citizen of Louisiana. Gallagher afterwards sued Thompson in the fifth district court for the parish of Orleans, La., upon the note falling due March 1, 1869, and, June 7, [p200] 1869, recovered judgment thereon for $6,000 and interest from March 4, with costs. This judgment he has been unable to collect by execution or otherwise.

At the time of the purchase there was also a judgment in the Prairie County Circuit Court of Arkansas, against Fleming, in favor of one Embry, for $643.43 debt, and $63 damages, which was a lien upon the part of the plantation in Prairie County. An execution was issued upon this judgment April 29, 1867, levied May 14, 1867, on the lands covered by the judgment lien; and they were offered for sale by the sheriff, and struck off, Aug. 19, 1867, to one English, for $844.70. In pursuance of this sale, the sheriff conveyed them to English, Aug. 24, 1867; and, Feb. 29, 1868, English conveyed them to Ober, the appellant, to whom at the same time Thompson also conveyed them.

Gallagher afterwards, being a citizen of Louisiana, filed this bill against Ober, a citizen of Arkansas, and Thompson, then a citizen of Tennessee, in the Circuit Court of the United States for the Eastern District of Arkansas, setting forth the sale from Fleming to Thompson; the execution of the notes by Thompson to Fleming; the reservation of the lien in the deed from Fleming; the indorsement of the note falling due March 1, 1869, by Fleming to Gallagher; the judgment against Thompson thereon in the fifth district court for the parish of Orleans; the judgment of Embry against Fleming; its lien; the sale and conveyance by the sheriff to English; and the conveyance by English to Ober,—substantially as above stated. The bill then alleges, in effect, that the purchase by English at the sheriff's sale was for the use of Thompson; that Thompson paid him the money he advanced to the sheriff; that the conveyance to Ober was for the benefit and at the request of Thompson; and that Ober at the time had full knowledge of all the facts. The prayer is, that the property conveyed by Fleming to Thompson may be subjected, under the lien reserved in the deed, to the payment of the amount due upon the judgment in favor of Gallagher.

At the time of the commencement of this suit, Fleming, as well as Thompson, was a citizen of Tennessee. He was not made a party. Ober and Thompson were both served with process in Arkansas, Thompson having been found there at the [p201] time; and they both demurred to the bill, assigning special cause, as follows:—

"1st, Said bill shows that said Thompson is a non-resident of said district, and not within the jurisdiction of this court.

"2d, Said complainant, as the assignee of the note named in said bill, did not take any lien, nor has he any under and by virtue of the assignment of said note.

"3d, Said bill fails to show that John T. Fleming, the original holder and payee of said note, could have brought suit thereon in this court.

"4th, Said bill fails to show that complainant has exhausted his remedies at law to collect the debt named in said bill.

"5th, The judgment exhibited with said bill rendered in the State of Louisiana merged the note named in the bill, and this court has no jurisdiction to enforce such judgment as a lien against the lands described in the bill, or to enforce it at all, until a judgment is rendered on the same in this court at law.

"6th, Said complainant having elected to use said Thompson at law, he must abide such election, or show that he has used all remedy under such suit, but to no purpose, which said bill does not show."

This demurrer was overruled. Thompson elected to stand by his demurrer, but Ober answered, insisting that the title of English was superior to that of Fleming, and that he was a bona fide purchaser from English, without notice. In this way, he claimed to hold the property in Pulaski County free from the lien reserved by Fleming. As to that in Prairie County, he insisted that the note due March 1, 1867, exceeded in amount the value of this part of the property, and that in equity it should be released from the lien.

After this answer, Gallagher, by consent, amended his bill, by setting up his ownership of the other notes indorsed to him, and asking that "as to any of said notes that may be due at the time of rendering the final decree herein," he might have "the same relief that he hath already in and by his original bill prayed; and that, as to the remainder of said notes, the court may give him such relief as may tend to secure the payment of the same when they respectively fall due, without further litigation or delay." At the time of filing this amend- [p202] ment, it was agreed that the answer of Ober to the original bill should be taken as his answer to the amended bill; that Thompson should have the same benefit from his demurrer to the original bill that he would have if he had demurred to the bill as amended: and the cause was set down for hearing upon bill, amended bill, answer, and replication, with leave to both parties to take depositions.

The Circuit Court rendered a decree, April 24, 1874, finding due to Gallagher, upon his judgment, and upon the notes then past due and unpaid, $49,903; establishing a lien in his favor upon the whole plantation in the hands of Ober, as security for the amount so found to be due; and ordering a sale, and an application of the proceeds to its payment. Further directions were also given in respect to the notes not then due.

From this decree Ober alone appeals.

Mr. A. H. Garland for the appellant.

1. The complainant and Thompson were non-residents of the State, and the latter was not within the jurisdiction of the court. When there is a plurality of plaintiffs or defendants, each one must possess the requisite character to sue and be sued. The bill must expressly aver this citizenship. Conkling's Treatise, 143 (4th ed.) 343–349; Story's Eq. Pl., sects. 492, 721.

The act of Feb. 28, 1839, does not modify that rule further than to permit the suit to progress against the defendant residing in the State, and to be dismissed against the other. 1 Wheat. 91; 1 Paine, C. C. 410; 3 Cranch, 267.

2. The complainant did not take a special lien, nor has he any under and by virtue of the assignment of said note. 1 Lead. Cas. in Eq. (Hare & Wall.) 367 (3d Am. ed.); Campbell's Appeal, 6 Am. Law Reg. 751-765; 2 Wash. Real Prop. 92, sect. 18 (3d ed.); Shall v. Biscoe, 18 Ark. 142; In re Brooks, 2 Bk. Reg. 149; 2 Story, Eq. Jur. 1039, 1040, 1057; Story, Eq. Pl. 118, 134, 153, 158; 4 Rand. (Va.) 447; 1 Eq. Cas. Ab. 93; 6 B. Mon. (Ky.) 393; 7 Cranch, 94; 1 Johns. Ch. 119; 10 Johns. 65; 18 id. 402; 2 Johns. Ch. 418; 1 Paige, 329; 10 Ves. 411; 11 id. 13; 2 Story, sect. 1250; 11 Ohio, 21; 5 Cranch, 322; 2 Spence, Eq. Jur. 850-852; 12 Wheat. 594.

3. The bill fails to show that Fleming, the original holder [p203] and payee of said note, could have brought suit thereon in the court below. Sheldon v. Sill, 8 How. 441; Conkling's Treatise, 109, 133; 4 Cranch, 46; 16 Pet. 315; 2 How. 241; 13 id. 183; 8 Wall. 393.

4. The bill fails to show that complainant has exhausted his remedies at law to collect the debt named therein. Livingston v. Van Ingen, 1 Paine, 45; Loman v. Clarke, 2 McLean, 568; Toby v. County of Bristol, 3 Story, 800; Bennett v. Butterworth, 11 How. 669; Jones v. McMasters, 20 id. 9; 4 Dall. 5; 1 Pet. 232; 3 id. 210; 15 How. 299; 2 Black, 245; 2 Curt. 592; Baldw. C. C. 394; 5 McLean, 337; Mex v. Autbury, 6 Eng. (11 Ark.) 411; Wiggins v. Armstrong, 2 Johns. Ch. 144; Apperson v. Ford, 23 Ark. 746; Story, Eq. Pl., sect. 257 a; 1 Clarke (Iowa), 98, 148; Carter v. Bennett, 6 Fla. 214; Scott v. McFarland, 34 Miss. (5 George), 363.

5. The judgment rendered in Louisiana merged the note; and the court below had no jurisdiction to enforce such judgment as a lien against the lands, or to enforce it at all, until a judgment should be rendered thereon in Arkansas. Green v. Sarmiento, Pet. C. C. 74; 3 W. C. C. 17; Postlewaite v. Howe, 3 Clarke (Iowa), 365; Besby v. Palmer, 1 Hill (N. J.), 482; Jones v. Jamison, 15 La. Ann. 35; Kittredge v. Stephens, 16 Cal. 381; Temple v. Scott, 3 Minn. 419 et seq.; Freeman on Judgments, 215–221; Story, Confl. Laws, 584–603, 609 a; Bright. Dig. p. 499, sect. 188; Carter v. Bennett, supra; 1 Rob. Pr. 194–288; 16 Pet. 26; 1 McLean, 167; 6 Pet. 389; 34 Miss. 708; Bean v. Smith et al., 2 Mason, C. C. 252; Shields v. Thomas, 18 How. 253; Conkling's Treatise, 272; 2 Story, 598; 3 Sumn. 425–429; 2 id. 589; 20 How. 591; Bright. Dig. 291.

6. The complainant, having elected to sue Thompson at law, must abide by such election, or show that he has used all remedy under such suit, but to no purpose. 24 Ark. 410; Mitf. Pl. 10, note 1 et seq.; Wigram's Discov. 54, note 4; id. 67.

Mr. W. M. Rose, for the appellee.

stated the case, and delivered the opinion of the court.

title: Ober v. Gallagher


text: Talk:Ober v. Gallagher

title: Talk:Ober v. Gallagher


text:
Ober v. Gallagher/Opinion of the Court

stated the case, and delivered the opinion of the court.

No errors have been assigned either upon the record or in the briefs of counsel, as required by our Rule 21. For this [p204] reason, we might very properly affirm the decree without looking into the record; but, as the case has been submitted and briefs filed on both sides, we will, without making this a precedent to justify such neglect of this salutary rule in the future, proceed to the consideration of the points suggested by the counsel for the appellant in opposition to the decree.

1. It is insisted, that as Thompson was, at the time of the commencement of the suit, a citizen of Tennessee, and a necessary party, the court could not take jurisdiction of the cause; and in support of this objection, it is said, that, where there is a plurality of plaintiffs or defendants, each one must have the requisite character of citizenship to sue and be sued.

The question here presented cannot be one of practical importance in the future, as the act of March 3, 1875 (18 Stat. 470, sect. 1), has extended the jurisdiction of the circuit courts to controversies "between citizens of different States," using for that purpose the very words of the Constitution (art. 3, sect. 2), and thus avoiding the embarrassments that frequently arose under the act of 1789 (1 Stat. 78, sect. 11), which limited their authority to controversies between "a citizen of the State where the suit is brought and a citizen of another State." It is, therefore, sufficient to say, that, since the act of Feb. 28, 1839 (5 Stat. 321, sect. 1), it has never been doubted that the circuit courts had jurisdiction of a suit in equity of a local nature, where a citizen of one State prosecuted citizens of other States, in a district where the property in controversy was situated, and of which one of the defendants was an inhabitant. If all the defendants were served with process in the district, or voluntarily appeared in the suit, the decree when passed would bind all. But if they were not served, or did not appear, and they were not indispensable parties, the case might proceed without them, and their interests would not be affected by what was done in their absence. If, however, an indispensable party was a citizen of the same State with the plaintiff, the jurisdiction would be defeated; because the controversy would not be between citizens of different States, and thus not within the judicial power of the United States as defined by the Constitution. The decisions to this effect are numerous. Hagan v. Walker, 14 How. 36; Shields v. Barrow, 17 id. 141; Clear- [p205] water v. Meredith, 21 id. 492; Inbusch v. Farwell, 1 Black, 571; Barnes v. Baltimore City, 6 Wall. 286; Jones v. Andrews, 10 id. 332; Commercial & R. R. Bank of Vicksburg v. Slocomb, 14 Pet. 65. In Louisville Railroad Company v. Litson, 2 How. 497, it is also distinctly stated (p. 556), that the act of 1839 "was passed exclusively with an intent to rid the courts of the decision in the case of Strawbridge v. Curtis," 3 Cranch, 267, which, with that of The Bank v. Deveaux, 5 Cranch, 84, had "never been satisfactory to the bar." p. 555.

Here, Gallagher could sue both Thompson and Ober separately in the courts of the United States, and they could each sue him. The suit is of a local nature, its object being to subject lands in Arkansas to the payment of a debt. It must, therefore, be brought in the district where the property is situated. Ober is a citizen of that State, and is the principal defendant. The relief demanded consists in bringing his property to sale, to pay a debt charged upon it. As to him, the court confessedly had jurisdiction. Thompson, though a citizen of Tennessee, was served with process in Arkansas; and this, under the provisions of the act of 1839, brought him into the case, and within the jurisdiction of the court.

2. As Fleming, the payee of the notes secured by the lien, was, when the suit was commenced, a citizen of Tennessee, and, consequently, incompetent to sue Thompson, also a citizen of that State, in the courts of the United States, it is claimed that Gallagher cannot maintain this suit.

This objection is also based upon a clause in sect. 11 of the Judiciary Act of 1789, repealed by the act of March 3, 1875, which provides that no circuit court shall have cognizance of any suit to recover the contents of a promissory note in favor of an assignee, unless a suit might have been prosecuted in such court to recover such contents if no assignment had been made. Under this act, it was held, in Sheldon v. Sill, 8 How. 441, that an indorsee of a negotiable promissory note, secured to the payee by a mortgage, could not sue in the courts of the United States to foreclose the mortgage, unless the mortgagee could. Gallagher did not sue in this case originally as the indorsee of a note, but as the owner of a judgment of record in his own favor, secured by a lien which he asked to have [p206] enforced. The note was no longer in existence as an outstanding liability. It had been merged in the judgment, and was, as a note, extinguished. Gallagher no longer claims as the assignee of the note, but as the owner of a judgment in his favor against Thompson. He can sue Thompson upon the judgment in the courts of the United States in Tennessee. As was well said by Mr. Justice Story, in Bean v. Smith, 2 Mass. 269, "It is no objection to the jurisdiction, that at some anterior period the transaction assumed a shape not within the reach of that jurisdiction. It is sufficient, if it has now become so modified by the act of the parties, or by the principles of law, that jurisdiction now rightfully attaches." Thompson is no longer a debtor by note to Fleming, but by judgment to Gallagher. In the collection of the judgment, Gallagher does not sue or proceed upon the note and its assignment, but upon the judgment.

The court had, therefore, jurisdiction of the suit as originally brought; and this jurisdiction was not defeated by the amendment which introduced the notes, not in judgment, but secured by the lien, into the case. Having obtained rightful jurisdiction of the parties and the subject-matter of the action for one purpose, the court will make its jurisdiction effectual for complete relief. Story's Eq. 64 k. If the amendment had not been made, the court would in its decree have taken care to protect the rights of the holders of the outstanding notes; and that is all it is called upon to do by the amendment. Having jurisdiction for one purpose, it may be retained for all within the general scope of the equities to be enforced.

3. Another objection urged is, that the assignment of the notes by Fleming did not transfer the lien he had reserved as security for their payment. It is undoubtedly true, that, in many of the States, the implied lien which equity raises in favor of the vendor of real property to secure the payment of the purchase-money does not pass by an assignment of the debt; but here the lien was not left to implication: it was expressly reserved. In fact, it is more than a lien. In equity, it is a mortgage, so made by express contract. The acceptance by Thompson of the deed containing the reservation amounts to an express agreement on his part that the land should be [p207] held as security for the payment of what he owed on account of the purchase-money. This created an equitable mortgage; and such a security passes by an assignment of the debt it secures. We so held in Batesville Institute v. Kauffman, 18 Wall. 154, a case which also came from the Eastern District of Arkansas.

It is claimed, however, that the law of Arkansas is different, and that the Supreme Court of that State has decided that a lien to secure the payment of purchase-money, expressly reserved by the vendor in his deed, does not pass by an assignment of the debt. If such was the settled rule of law in the State when the notes which are under consideration in this case were assigned, we should be compelled to recognize it as a rule of property there, and be governed accordingly. Suydam v. Williamson, 24 How. 434. But we do not understand such to have been the fact. The first case in which this ruling was made was Sheppard v. Thomas, 26 Ark. 617, decided at the June Term, 1871, by a divided court, two out of the five judges dissenting. This case was followed also by a divided court in Jones v. Doss, 27 Ark. 518, decided at the December Term, 1872; but almost immediately thereafter, April 24, 1873, the legislature provided by statute as follows:—

"The lien or equity held or possessed by the vendor of any real estate, for the sale of the same, shall inure to the benefit of any assignee of the notes or obligations given for the purchase-money of such real estate, and such lien or equity shall be assignable, and payable by indorsement or otherwise in the hands of such assignee, and any such assignee may maintain an action or suit to enforce the same: Provided, the said lien or equity is expressed upon or appears from the face of the deed of conveyance." Pamphlet Laws, 1873, p. 217, sect. 28.

This legislation was followed, at the December Term, 1873, by the case of Campbell v. Rankin, 28 Ark. 401, in which it was strongly intimated, that, if it were necessary, the previous cases in which this question was decided would be overruled. Under these circumstances, we are not satisfied that, when these notes were assigned, it was a settled rule of property in Arkansas that a lien for purchase-money expressly reserved would not pass by an assignment of the debt. Such being the case, [p208] the Circuit Court was right in following our decision in Batesville Institute v. Kauffman, especially as its decision was not made until after the doubts expressed in Campbell v. Rankin, as to the correctness of the rulings in the previous cases.

4. It is finally insisted that Gallagher must exhaust his remedies at law before he can come into a court of equity to subject the land. This is not a creditor's bill to reach equitable assets. There is no attempt to enforce the judgment as a judgment, but to reach securities held for the debt. The suit is in reality one to enforce a mortgage given to secure a note, but not commenced until after the note had gone into judgment at law. The note was merged in the judgment: but the lien which secured it was not; that was simply transferred from the note to the judgment.

An election to sue at law upon a note secured by mortgage does not make it necessary for the holder to exhaust his remedies in that forum before he can go into equity to enforce his mortgage. He may proceed at law and in equity at the same time, and until actual satisfaction of the debt has been obtained.

This disposes of all the questions presented in the demurrer, and brings us to a consideration of the case upon its facts. Without going into the details of the evidence, it is sufficient to say, that we are entirely satisfied that English purchased the property in Pulaski County at the sheriff's sale, for the benefit of Thompson; that Thompson either furnished him the money to pay the sheriff, or repaid him what he may have advanced within a short time thereafter; that the sale to Ober was made by Thompson to pay or secure a debt he owed; that English conveyed to Ober at the request of Thompson, and to give effect to the arrangement he had made; that Ober, at the time of his purchase, had full knowledge of all the facts, and that he took the title to the property incumbered by the lien reserved in the deed from Fleming.

It follows that the decree of the Circuit Court was right, and it is, therefore,

Affirmed.

title: Ober v. Gallagher/Opinion of the Court


text: Talk:Ober v. Gallagher/Opinion of the Court


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Sherman v. Buick

ERROR to the Supreme Court of the State of California.

The plaintiff in error brought suit in the proper court of the State of California to recover possession of a part of section 36, township 5 south, range 1 east, Mount Diablo meridian, and asserted title thereto under a patent from the United States, bearing date May 15, 1869. The defendant claimed under a patent from the State of California, of the date of Jan. 1, 1869. The title of the State is supposed to rest on the act of Congress of March 3, 1853 (10 Stat. 246), granting to her, for school purposes, with certain limitations, every sixteenth and thirty-sixth section within her boundaries, according to the surveys to be thereafter made of the public lands.

The plaintiff, in aid of his patent, and to defeat the title of the State under the act of 1853, offered to prove, that, as early as Dec. 20, 1862, he had settled upon the land, and had ever since resided on it; that it was not surveyed until Aug. 11, 1866; that he had filed and proved his pre-emption claim to it Nov. 6, 1866; and paid for it, and received a patent certificate, on which his patent was duly issued.

The court excluded this evidence, and gave judgment for the defendant, which was affirmed by the Supreme Court; whereupon the plaintiff sued out this writ of error. The sections of the act which bear upon the case are set forth in the opinion of the court.

Mr. Philip Philips, Mr. S. M. Wilson, and Mr. George A. Nourse, for the plaintiff in error.

1. It was competent for the plaintiff to show that the State, at the date of her patent to the defendant, had no title to the lands in controversy. Polk's Lessee v. Wendell, 9 Cranch, 87; Patterson v. Winn, 11 Wheat. 381; Patterson v. Tatum, Pacific Law Reporter, Oct. 6, 1874; Doll v. Meader, 16 Cal. 295; Terry v. Megerle, 24 id. 609; Reichart v. Felps, 6 Wall. 160; Norton v. Nebraska, 21 id. 660.

2. The legal title to sections sixteen and thirty-six did not vest in the State until they were marked out and defined by survey. Until then the grant to her was in the nature of a float. Middleton v. Lowe, 30 Cal. 596; Railroad v. Fremont County, 9 Wall. 94; Gaines v. Nicholson, 9 How. 356; Cooper v. Roberts, 18 id. 173. The settlement of the plaintiff, having been made before such survey, was within the exception contained in the seventh section of the act of 1853. The grant, therefore, did not embrace the lands covered by that settlement, and the patent of the State was an absolute nullity.

3. The intention of Congress to protect pre-emption settlements made on school sections before such survey is clearly manifested by the provision authorizing the State to select other lands in lieu of those on which such settlements were made.

Mr. Montgomery Blair for the defendant in error.

1. The grant of sections sixteen and thirty-six was in proesenti. No settlement on the lands in controversy having been made by the plaintiff at the date of the act, or within one year thereafter, they were not excepted from the grant. Houghton v. Higgins, 25 Cal. 255; Doll v. Meader, 16 id. 296; Van Volkenburg v. McCleud, 21 id. 330; Summers v. Dickinson, 9 id. 554; Owen v. Jackson, id. 322; Keeran v. Griffith, 27 id. 87; Robinson v. Forest, 29 id. 317; Bludworth v. Lake, 23 id. 255; Mezerle v. Ashe, 27 id. 328; 33 id. 74; Rutherford v. Greene, 2 Wheat. 196.

2. Although a survey was required to identify these sections by specific boundaries, a vested interest passed to the State by force of the act of 1853. The doctrine of relation has been uniformly applied when executive acts, whether by survey or patent, are required to give full effect to a grant. The title, whenever they are completed, inures as of the date of the inception of the grant, and defeats all intervening claims. Landis v. Brant, 10 How. 373; Kissell v. The Public Schools, 18 id. 19; Cooper v. Roberts, id. 173; Chouteau v. Gibson, 13 Wall. 92; Maguire v. Tyler, 8 id. 650; Railroad Company v. Smith, 9 id. 95; Veeder v. Guppy, 3 Wis. 502.

It is said, on the other side, that the grant does not attach to the school sections till they are surveyed, because till then there were no such sections. This proves too much. If the thing granted did not exist, or was not described with certainty, the grant would be void, which is not the argument. The thing granted is the land, which did exist. 'Section' is only a word of description, but it is a certain and enduring description; and a grant of a particular section is equally operative to appropriate it, whether its lines have been already run, or are hereafter to be run in the same manner, making the location only a question of measurement and calculation. Hence the description is as complete in the one case as in the other, and is so treated by the law; for the grant applies in terms to the 'surveyed and to the unsurveyed land.' As much violence is done to the language by withholding the unsurveyed lands from the schools as by denying them to pre-emptors.

3. Subsequent acts extending the permission to settle upon unsurveyed lands have no bearing upon this case. They cannot operate to recall the grant of 1853, or impair the rights which the State acquired under it. The government cannot resume its grants. New Orleans v. De Armas, 9 Pet. 224.

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

title: Sherman v. Buick


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Page:Haiti- Her History and Her Detractors.djvu/374

338 When all is considered, especially the fact that the existence of Haiti as a nation dates back only one century, one is brought to the conclusion that this country has been no more disturbed nor agitated than France for instance; her changes of government have at any rate not been more numerous. France has had in succession the rule of the Directory, the Consulate, the Empire, the Monarchy of the Bourbons, the Empire and the Monarchy of the Bourbons for the second time, the Constitutional Monarchy of the Orleans, the Republic, the Empire, and eventually the Republic. From 1800 to 1900 France was under the administration of about eighteen different rulers, just the number of rulers that Haiti has had from 1804 to 1900. Forced to fly from France, four sovereigns, Napoleon I, Charles X, Louis-Philippe, and Napoleon III died in exile; and of the seven Presidents who from 1870 to 1900 ruled the Republic, one, Carnot, was assassinated, and four others, Thiers, McMahon, Grévy, and Casimir-Perrier, resigned before the expiration of their term of office.

I am merely stating facts without drawing any comparisons, my sole aim being to prove that Haiti is no exception to the general rule, and that what has taken place in her case has been the same in the case of other nations. Neither have some of her rulers escaped the fate of some of the French monarchs; but it is untrue to say that all of the Presidents have been compelled to seek safety abroad. Out of nineteen she has had in the course of a century five of them—Boyer, Hérard, Geffrard, Domingue, and Salomon—died away from their country; eight others—Pétion, Guerrier, Pierrot, Riché, Soulouque, Saget, Hyppolite, and Boisrond Canal—passed peacefully away in Haiti. One ex-President, Légitime, is still living in Port-au-Prince, where he is surrounded by the esteem and respect of his fellow-citizens.

Two rulers, Dessalines and Salnave, were put to death. This event, although much to be deplored, is not peculiar to Haiti. Other nations have also rightly or wrongly found themselves under the necessity of


text: Talk:Sherman v. Buick

title: Talk:Sherman v. Buick


text:
Sherman v. Buick/Opinion of the Court

The contest in this case is between a patent of the United States and a patent of the State of California. To determine which of them conveyed, under the facts offered in evidence, the title to the land in controversy, a construction of the act of 1853 is required. It is entitled 'An Act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes,' and is the first act of Congress which extended the land system of the United States over the newly acquired territory of that State. It provided for surveys, for sales, for the protection of the rights of settlers, miners, and others; and, among the other purposes mentioned in the caption, for magnificent donations to the State of lands for schools and for public buildings.

The sixth and seventh sections of the act are of chief importance in the matter under consideration; the preceding sections having provided for surveying all the lands. The clause of the sixth section, in which the grant to the State of the sixteenth and thirty-sixth sections for school purposes is found, reads as follows:--

'All the public lands in the State of California, whether surveyed or unsurveyed, with the exception of sections sixteen and thirty-six, which shall be, and hereby are, granted to the State for the purposes of public schools in each township; and, with the exception of lands appropriated under this act, or reserved by competent authority, and excepting, also, the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the pre-emption laws of the 4th of September, 1841, with all the exceptions, conditions, and limitations therein, except as is herein otherwise provided; and shall, after the plats thereof are returned to the office of the register, be offered for sale, after six months' public notice in the State of the time and place of sale, under the laws, rules, and regulations now governing such sales, or such as may be hereafter prescribed.'

Then come several provisos, which we will consider hereafter; but we pause here to note the effect of this granting and excepting clause on the lands which should, by the future surveys of the government, be found to be sections sixteen and thirty-six.

It is obviously the main purpose of the section to declare, that after the lands are surveyed they shall be subject to sale, according to the general land system of the government; and, secondly, to subject them to the right of pre-emption as defined by the act of 1841, and to extend that right to lands unsurveyed as well as to those surveyed. But here it seemed to occur to the framer of the act, that California, like other States in which public lands lay, ought to have the sixteenth and thirty-sixth sections of each township for school purposes, and that they should not be liable to the general pre-emption law, as other public lands of the government would be. He accordingly injected into the sentence the grant of these lands to the State, and the exception of them from the operation of the pre-emption law of 1841, together with other lands which in like manner were neither to be sold nor made subject to pre-emption. These were, lands appropriated under the authority of that act, or reserved by competent authority; lands claimed under any foreign grant or title (i.e., Mexican grants); and mineral lands. All these were by this clause exempted from sale and from the general operation of the pre-emption laws.

But the experience of the operation of our land system in other States suggested that it might be ten or twenty, and in some instances thirty, years before all the surveys would be completed and the precise location of each school section known. In the mean time, the State was rapidly filling up by actual settlers, whose necessities required improvements, which, when found to be located on a school section, should have some protection. What it should be, and how the relative rights of the settler and of the State should be also protected under these circumstances, is the subject of a distinct section of the act,-the one succeeding that we have just considered.

That section (7) provides: 'That when any settlement, by the erection of a dwelling-house, or the cultivation of any portion of the land, shall be made upon the sixteenth and thirty-sixth sections before the same shall be surveyed, or when such sections may be reserved for public uses, or taken by private claims, other land shall be selected by the proper authorities of the State in lieu thereof.' That it was the purpose of this section to provide a rule for the exercise of the right of pre-emption to the school lands granted by the previous section cannot be doubted. The reason for this is equally clear; namely, that these lands were not only granted away by the preceding section and inchoate rights conferred on the State, but they were, with other classes of lands, by express terms excepted out of the operation of the pre-emption laws which it was a principal object of that section to extend to the public lands of California generally.

Whether a settler on these school lands must have all the qualifications required by the act of 1841, as being the head of a family, a citizen of the United States, &c., or whether the settlement, occupation, and cultivation must be precisely the same as required by that act, we need not stop to inquire. It is very plain, that, by the seventh section, so far as related to the date of the settlement, it was sufficient if it was found to exist at the time the surveys were made which determined its locality; and, as to its nature, that it was sufficient if it was by the erection of a dwelling-house, or by the cultivation of any portion of the land. These things being found to exist when the survey ascertained their location on a school section, the claim of the State to that particular piece of land was at an end; and, being shown in the proper mode to the proper officer of the United States, the right of the State to that land was gone, and in lieu of it she had acquired the right to select other land agreeably to the act of 1826, subject to the approval of the Secretary of the Interior.

But it is said that the right of pre-emption thus granted by the seventh section was subject to the limitation prescribed by the third proviso to the sixth section; namely, 'that nothing in this act shall be construed to authorize any settlement to be made on any public lands not surveyed, unless the same be made within one year from the passage of this act; nor shall any right of such settler be recognized by virtue of any settlement or improvement made of such unsurveyed lands subsequent to that day.' And such was the opinion of the Supreme Court of California. And that court, assuming this to be true, further held, that the grant made by the act of the school sections was a present grant, vesting the title in the State to the sixteenth and thirty-sixth sections absolutely, as fast as the townships were surveyed and sectionized. Higgins v. Houghton, 25 Cal. 252. As a deduction from these premises, it held, that the right to pre-emption on these lands expired with the lapse of the year from the passage of the act, and that no subsequent act of Congress could revive or extend it, even if it was so intended.

But we are of opinion that the first of this series of propositions is untenable.

The terms of the proviso to the sixth section, and those of the seventh section, if to be applied to the same class of lands, are in conflict with each other. The one says, that if settlement be made on land before the survey, which by that survey is found to be on the sixteenth or thirty-sixth section, the settlement shall be protected. The other says, that no settlement shall be protected unless made within one year after the passage of the act. In view of the well-known fact that none of these surveys would be completed under several years, the provision of the seventh section was a useless and barren concession to the settler, if to be exercised within a year, and, in the history of land-titles in that State, would have amounted to nothing. This apparent conflict is reconciled by holding to the natural construction of the language and the reasonable purpose of Congress, by which the limitation of one year to the right of pre-emption in the sixth section is applicable alone to the general body of the public lands not granted away, and not excepted out of the operation of the pre-emption law of 1841, as the school lands were, by the very terms of the previous part of the section; while sect. 7 is left to control the right of pre-emption to the school sections, as it purports to do.

In this view of the matter, the very learned argument of counsel on the question of the character of the grant as to the time when the title vests in the State, and the copious reference to the acts of Congress and of the State, as authorizing pre-emption after the expiration of one year from the date of the statute, are immaterial to the issue. Actual settlement before survey made accompanied the grant as a qualifying limitation of the right of the State, which she was bound to recognize when it was found to exist, and for which she was authorized to seek indemnity in another quarter. There is, therefore, no necessity for any additional legislation by Congress to secure the pre-emption right as to school sections, and no question as to whether it has so legislated, or whether such legislation would be valid; and we do not enter on those questions.

No question is made in the argument here, none seems to have been made in the Supreme Court of the State, and none is to be found in its opinion in the case, as to the admissibility of the rejected testimony, if the fact which it sought to establish could be recognized by the court. Nor do we think such objection, if made, is sustainable. The testimony offered does not go to impeach or contradict the patent of the United States, or vary its meaning. Its object was to show that the State of California, when she made her conveyance of the land to defendant, had no title to it; that she never had; and that by the terms of the act of Congress, under which she claimed, the only right she ever had in regard to this tract was to seek other land in lieu of it. The effect of the evidence was to show that the title set up by defendant under the State was void,-not merely voidable, but void ab initio. For this purpose, it was competent, and it was sufficient; for it showed, that when the survey was actually made, and the land in question was found to be part of section thirty-six, plaintiff had made a settlement on it, within the meaning of the seventh section of the act of 1853, and the State could do nothing but seek indemnity in other land.

It has always been held, that an absolute want of power to issue a patent could be shown in a court of law to defeat a title set up under it, though where it is merely voidable the party may be compelled to resort to a court of equity to have it so declared. Stodard v. Chambers, 2 How. 317; Easton v. Salisbury, 21 id. 426; Reichart v. Felps, 6 Wall. 160.

Judgment reversed, and case remanded with direction to order a new trial in conformity to the principles of this opinion.

MR. JUSTICE FIELD took no part in the decision of this case.

title: Sherman v. Buick/Opinion of the Court


text: Talk:Sherman v. Buick/Opinion of the Court


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Morgan v. Louisiana

ERROR to the Supreme Court of the State of Louisiana.

This was an action by the State of Louisiana against Morgan, to recover certain taxes.

The facts are stated in the opinion of the court.

The judgment below was in favor of the plaintiff. The defendant thereupon sued out this writ of error.

Submitted on printed arguments by Mr. Henry J. Leovy for the plaintiff in error.

1. The legislature of Louisiana had power to exempt the property from taxation; and the grant made in this case was a contract which was inviolable. New Jersey v. Wilson, 7 Cranch, 164; Jefferson Bank v. Shelly, 1 Black, 536; Home of the Friendless v. Rouse, 8 Wall. 430; Wilmington Railroad v. Reid, 13 id. 264, 269; Humphrey v. Pegues, 16 id. 244; 18 id. 392; 20 id. 36; 21 id. 492; Lacey's Dig. Railway Decisions, p. 853; 31 Ill. 484; 17 id. 291.

2. Exemption from taxation is a franchise that may be mortgaged and sold, especially in Louisiana. La. Stat. 1853, 1854, 1856; Civil Code, arts. 2449, 3183; New Jersey v. Wilson, 7 Cranch, 165; Jefferson Bank v. Shelly, 1 Black, 536; Home of the Friendless v. Rouse, 8 Wall. 430; Trask v. Maguire, 18 id. 392; Pacific Railroad v. Maguire, 20 id. 36; Humphrey v. Pegues, 16 id. 244; 13 id. 269; Wilmington Railroad v. Reid, 13 id. 264; Bardstown & Louisville R. R. Co. v. Metcalfe, 4 Ky. (Met.) 199; Allen v. ''Mont. R. R. Co.'', 11 Ala. 437; Pollard v. Maddox, 28 id. 321; 30 Vt. 182; 70 Penn. 355; St. Paul Co. v. Parker, 14 Minn. 297; Lacey's Dig. Railway Decisions, 753; Union Bank Case, 6 Humph. 515; Enfield v. Hart, 17 Conn. 40.

Plaintiff in error is the owner by purchase at public sale of all the property formerly owned by the railroad company, including all its franchises; and his title to the same has in no manner been forfeited.

3. The exemption from taxation of the capital stock of the company is without limitation; but that part invested in works, fixtures, workshops, &c., is exempt till ten years after completion of the road, &c. Sect. 2, Act 1853. It is admitted that the capital stock is exempt for ever. The 'capital stock' is the capital of the company, whether remaining in money or invested in the necessary real estate, rails, and track, in grading, and in laying rails. Trask v. Maguire, 18 Wall. 391; Wilmington Railroad v. Reid, 13 id. 264; Pacific Railroad v. Maguire, 20 id. 42.

The tax claimed in this case is for $400,000, real estate (part of the road), $300,000, capital, and $19,000, ferry-boats; in all, $719,000. All this is clearly part of the capital stock exempted from taxation.

Mr. J. Q. A. Fellows for the defendant in error.

As the first grand division of eighty miles of road, purchased by the plaintiff in error at the marshal's sale in May, 1869, had been completed for more than ten years prior to that time, it was not exempt from taxation, and his purchase of the remaining property of the railroad company at the sheriff's sale in March, 1870, did not, and could not, include the franchises of the company.

Only by virtue of an express authorization of the legislature can the franchises of a corporation be divested. This was not the case at the sheriff's sale, made in the execution of an ordinary judgment on an ordinary debt against the railroad company. 1 Redf. Railw. c. 7, p. 117 (ed. 1873); 2 id. c. 7, pp. 484, 501 (ed. 1873); Lacey's Dig. Railway Decisions, p. 292, Nos. 4, 7, 21, 25; Plymouth Railroad v. Colwell, 39 Penn. St. 337; State v. Rives, 5 Ired. 297; Benedict v. Heineberg, 43 Vt. 231; State v. Mexican Gulf Railroad Co., 3 Rob. (La.) 513.

The plaintiff in error could buy at the sheriff's sale only the tangible property of the railroad company, and not any of its franchises. He therefore did not acquire the right of exemption from taxation of the property purchased previously at the marshal's sale; even if such exemption be a franchise, and not a strictly personal right or immunity, which is neither transferable by the railroad company, nor subject to seizure and sale under execution.

The plaintiff in error can therefore claim only by virtue of his purchase at the marshal's sale, under the laws as they existed at the time of his purchase.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Morgan v. Louisiana


text: Talk:Morgan v. Louisiana

title: Talk:Morgan v. Louisiana