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Dubuclet v. Louisiana/Opinion of the Court

This suit was brought by the State of Louisiana on the relation of John C. Moncure in the Sixth District Court for the parish of Orleans on the 20th of March, 1877, to try the title of Dubuclet, the plaintiff in error, to the office of treasurer of state, the duties of which he was performing under a commission from the governor dated Dec. 31, 1874. The allegations of the petition are in substance that Moncure was in fact elected to the office at an election which was held on the 2d of November, 1874, but that the returning board, by a false and illegal canvass and compilation of the votes, declared that a majority were in favor of Dubuclet, who was thereupon commissioned.

On the 2d of April, 1877, Dubuclet filed his petition for the removal of the suit to the Circuit Court of the United States for the District of Louisiana. This petition was granted by the state court, but when the case got to the circuit court, it was remanded on the ground that it was not in law removable. To reverse that order of the circuit court, this writ of error was brought.

It is conceded that according to the decisions in Strauder v. West Virginia, 100 U. S. 303, and Virginia v. Rives, 100 U. S. 313, a case was not made for removal under sec. 641, Rev.Stat. We think it equally clear that the showing in the petition was not sufficient to effect a transfer under the second section of the Act of March 3, 1875, c. 137, 18 Stat. 470. The averments relied on for this purpose are as follows:

"Petitioner further represents that at the election held in this state on the ___ day of November, A.D. 1874, for state treasurer, at which petitioner was a candidate, that in the Parishes of De Soto, Bienville, Union, Grant, and other parishes of the state, there were more than five thousand citizens of color of the State of Louisiana and of the United States qualified by law to vote at said election and who offered to vote, and if they had been permitted to vote would have voted for petitioner, and against Jno. C. Moncure, relator, and who were prevented, hindered, and controlled and intimidated from voting for petitioner by relator Moncure and those acting in his interest by means of bribery, threats of depriving them of employment and occupation, and of ejecting them from rented houses, lands, and other property, and by threats of refusing to renew leases or contracts for labor, and by threats of violence to them or their families, in violation of their and your petitioner's civil rights, and in violation of the laws of the United States, made and enacted to protect the civil rights of citizens of color and previous condition of servitude. "

"Petitioner further represents that in consequence of said illegal acts and violation of the laws of the State of Louisiana and the United States by relator Moncure, and those acting in his interest, at and before said election, and for the purpose of defeating your petitioner for treasurer of the State of Louisiana, that the returning officers of election of the State of Louisiana, in accordance to law and their swore duty, duly returned your petitioner elected, by rejecting the votes cast in the several parishes and at the several polls where relators, in their petition, complain the vote should have been counted in his, Moncure's favor, and where they complain the vote should not have been counted in favor of petitioner."

"Petitioner further represents that the suit of the relator is for the object and purpose of depriving your petitioner of the office of Treasurer of the State of Louisiana by reason of the denial of the aforesaid citizens the right to vote on account of race, color, and previous condition of servitude in violation of the laws of the United States made to protect the equal civil rights of petitioner and those offering to vote for him, and by reason of the right guaranteed by the Fifteenth Article of Amendment to the Constitution of the United States."

If all that is here alleged be true, it does not show a case "arising under the Constitution or laws of the United States." If Moncure was guilty of what is charged against him, he had violated the provisions of sec. 5507 of the Revised Statutes, but that gave Dubuclet no right, under the laws of the United States, to have the entire vote of the designated parishes thrown out by the canvassers of the election. Moncure might have been prosecuted for what he had done, but neither his prosecution, conviction, nor punishment would of itself set aside the vote of the parishes or polls as returned. The effect of such conduct on the validity of the election depended, so far as this record shows, on the laws of the state, and not on those of the United States. Whether Moncure and those in his interest have been guilty of a crime punishable by law may depend alone on the laws of the United States, but the United States have not as yet attempted to declare what effect such unlawful acts shall have on the election of a purely state officer. The laws of Louisiana, it is conceded, gave colored men the right to vote at all elections, and because in this case they were prevented by intimidation from exercising that privilege, the properly constituted canvassing board of the state, acting, as is alleged by Dubuclet in his petition, "in accordance to law and their sworn duty," rejected all votes from the parishes and polls where intimidation occurred, and thus found that he was elected. Had the vote of these parishes been counted, the result would have been in favor of Moncure. Thus, according to Dubuclet's own showing, his right to his office depends on the laws of the state. Because the laws of the state required the returning board to reject the votes of the parishes and polls where intimidation, whether of white or colored voters, materially interfered with the election, the majority of the votes cast at the election, which could be counted, were in his favor, and therefore he is in office. Such is in effect his allegation in the petition for removal. Clearly, then, on his own showing, his right arises not so much under the Constitution and laws of the United States as under those of the state.

Sec. 2010, Revised Statutes, gives one who "is defeated or deprived of his election" to such an office as Dubuclet holds the right of suing for his office in the courts of the United States

"where it appears that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote on account of race, color, or previous condition of servitude."

That certainly is not this case, for Dubuclet, instead of being defeated or deprived of his election, is now in office under his election duly declared pursuant to the laws of the state, and exercising all the duties of his place and enjoying all its privileges. This section provides for an original suit by one out of office to get in, but not for the removal of a suit against one in office to put him out. It is unnecessary to discuss the validity of the law in its application to purely state offices, for it does not affect this case. It is one thing to have the right to sue in the courts of the United States, and another to transfer to that jurisdiction a suit lawfully begun in a state court.

We think it clear that the circuit court ought not to have taken jurisdiction of the case.

Judgment affirmed.


text: Talk:Dubuclet v. Louisiana/Opinion of the Court

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Supervisors v. Kennicott (103 U.S. 554)

ERROR to the Circuit Court of the United States for the Southern District of Illinois.

The facts are stated in the opinion of the court.

The case was argued by Mr. C. C. Boggs for the plaintiff in error, and by Samuel J. Crooks for the defendant in error.

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

title: Supervisors v. Kennicott (103 U.S. 554)


text: Talk:Supervisors v. Kennicott (103 U.S. 554)


text:
Supervisors v. Kennicott (103 U.S. 554)/Opinion of the Court

The County of Wayne, Illinois, mortgaged its swamp and overflowed lands to secure an issue of bonds by the Mt. Vernon Railroad Company. The county was in no way bound for the payment of the debt. It simply mortgaged its lands for the benefit of the company. Default having been made in the payment of the bonds, a suit was begun in the Circuit Court of the United States for the Southern District of Illinois to foreclose the mortgage. In this suit a decree was entered, June 25, 1874, finding the amount due from the company on its bonds, and directing that the lands of the county be sold and the proceeds applied to the debt. From this decree the county appealed to this court, giving a bond, with a large number of persons as sureties, in the penal sum of $40,000, conditioned according to law, a supersedeas. At the October Term, 1876, the decree below was affirmed here with costs and the cause remanded. Supervisors v. Kennicott, 94 U.S. 498.

This was a suit on the appeal and supersedeas bond, the allegations in the declaration as to damages being as follows:--

'A large amount of damages hath accrued to the said plaintiffs by the failure of the said board of supervisors to make good their plea, to wit, the amount of $100,000, consisting of $40,000 of interest which accrued on said decree during the pendency of said appeal, which is wholly unpaid, and of $200,000 of said decree remaining unsatisfied by sale of the lands ordered by said decree, and of $50,000 depreciation in the value of said lands during the pendency of said appeal, and of $25,000, attorneys' fees for attending to said appeal, and $50,000 taxes on said lands during the pendency of said appeal.'

The bill of exceptions shows that the case was submitted to the court on an agreed state of facts, it being stipulated 'that pleas proper in such case were on file.' This agreed statement purported to be signed by the attorneys for the plaintiff, the attorney for the county, and the attorney for the sureties on the bond. The material to the questions presented here is as follows:

'It is further agreed, that, so far as the right of recovery in this case is concerned, it shall be deemed and considered that a sale of the lands in the decree described had been made and approved by the court before the commencement of this suit, and that the lands in the decree and mortgage and trust deed mentioned did not bring enough at said sale to satisfy and pay the amount due the complainant under the decree as holders of the bonds of said railroad company by an amount largely over the amount of the appeal bond in this cause sued on, and that the interest at the legal rate on the aggregate amount of the bonds of the railroad company found due the complainants as established by the decree during the pendency of said appeal would amount to a sum largely exceeding the amount of the appeal bond in this cause sued on.'

It was further admitted, as appears of record, that the costs of the appeal had been paid.

Upon the facts so stated and agreed the court found generally for the plaintiffs on the issue and that they had sustained damage to the amount of $40,000, the penalty of the bond. Judgment was given accordingly. To reverse that judgment this writ of error has been prosecuted.

It is contended by the defendants in error that the case cannot be re-examined here on its merits,-1, because the record does not show that a 'stipulation in writing waiving a jury' was filed with the clerk, as required by sect. 649 of the Revised Statutes; and, 2, because the finding of the court was in form general, and not special, as required by sect. 700.

1. As to the waiver of a jury. The record does contain a stipulation in writing signed by the attorneys of the respective parties, submitting the cause to the court for trial on the agreed facts. As a case cannot be submitted to the court for trial without waiving a jury, a stipulation to submit, especially if it be on agreed facts, is of itself a sufficient waiver to meet the requirements of sect. 649.

2. As to the finding. Even before the act of 1865, c. 86, sect. 4 (13 State. 501, reproduced in sects. 649 and 700, Rev. State.), it was always held that a judgment on agreed facts spread at large on the record could be reviewed here on a writ of error. United States v. Eliason, 16 Pet. 291; Stimpson v. Baltimore & Susquehanna Railroad Co., 10 How. 329; Graham v. Bayne, 18 id. 60; Suydam v. Williamson, 20 id. 427; Campbell v. Boyreau, 21 id. 223; Burr v. Des Moines Company, 1 Wall. 99. Such a statement was considered to be equivalent to a special verdict and to present questions of law alone for the consideration of the court. It is manifest that the act of 1865 was not intended to interfere with this practice. The evident object of that legislation was to give special findings the same effect for the purposes of a writ of error as a special verdict or an agreed case.

This record shows distinctly that the court was only required to determine whether in law, on the agreed facts, the defendants were liable on their bond. It is true that in the judgment as entered it is stated that the court found the issue in favor of the plaintiffs, but that, when read in connection with the bill of exceptions, is no more than a declaration that the court found the law to be in favor of the plaintiff on the case as stated.

There were in fact no pleadings after the declaration, and the effect of the stipulation that please proper to the case were on file was that the pleadings presented in form the case as stated, and left nothing for the court to do but to enter judgment thereon. There was no issue but of law, and that the court found for the plaintiffs. The same case is brought here by the record, and we are entirely satisfied it is one we have the power to review.

This brings us to the consideration of the assignment of errors, which is to the effect that the court was wrong in giving judgment for the plaintiffs. Sect. 1000 of the Revised Statutes provides that when an appeal 'is a supersedeas and stays execution,' the security must be that the appellant 'shall prosecute his appeal to effect, and, if he fails to make his plea good, shall answer all damages and costs.' In regulating the practice under this statute, we, by our Rule 29, provide that in suits on mortgages 'indemnity. . . is only required in an amount sufficient to secure the sum recovered, for the use and detention of the property, and the costs of the suit, and 'just damages for delay,' and costs and interest on the appeal.' The damages to be answered for are clearly only such as are incident to the plea that fails, that is to say, the appeal that is taken.

The appeal of Wayne County was from a decree which subjected its lands to the payment of the debt of the railroad company. By taking the appeal no new obligations were assumed in respect to the debt. Clearly, then, the damages which the county and its sureties bound themselves to answer must have been such only as followed from the delay in the sale of the property. That does not necessarily imply an obligation to pay the balance which remains of the mortgage debt after the entire proceeds of the lands have been applied to its satisfaction.

In Jerome v. McCarter (21 Wall. 17), we held that our rule did not require security for the payment of all the accumulation of interest on the mortgage debt pending the appeal, but only indemnity against loss by reason of such accumulation, the amount of which would depend in each case on its own facts.

The damages in this case claimed by the plaintiffs are, 1, for interest on the debt which accrued during the appeal; 2, the balance of the decree which remained unsatisfied after the sale; 3, depreciation in the value of the lands; 4, attorney's fees; and, 5, taxes on the lands. No claim is made for the use and detention of the property otherwise than in this way. The agreed case shows that there was an accumulation of interest on the debt during the appeal largely exceeding the penalty of the bond, and that a balance of the mortgage debt, also much more than the penalty of the bond, was left unpaid when the proceeds of the sale had all been applied in accordance with the terms of the decree. This is the extent of what was agreed on. There is no statement that the lands had depreciated in value or that taxes had accumulated. Neither is it stated that any loss had actually accrued to the appellees by reason of the stay of sale. So far as appears, the lands may have increased in value to an amount larger than the accumulation of interest, and the taxes may have been paid. The single question, therefore, was presented to the court, whether on the agreed facts the county and its sureties were liable in law to the extent of their bond for the accumulation of interest or the balance of the mortgage debt. The judgment was to the effect that they were. In this we think there was error. Upon the agreed facts no damages had resulted from the appeal for which the county could in law be required to answer, and the judgment should have been for the defendants.

There were other rulings presented by the bill of exceptions, but as upon the whole case as made there can be no recovery, we have considered it unnecessary to state them.

The judgment of the Circuit Court will be reversed and the cause remanded for further proceedings to be had therein not inconsistent with this opinion; and it is

So ordered.


text: Talk:Supervisors v. Kennicott (103 U.S. 554)/Opinion of the Court


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County of Ouachita v. Wolcott

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

The facts are stated in the opinion of the court.

Mr. Augustus H. Garland and Mr. F. W. Compton for the plaintiff in error.

Mr. U. M. Rose, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: County of Ouachita v. Wolcott


text: Talk:County of Ouachita v. Wolcott

title: Talk:County of Ouachita v. Wolcott


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County of Ouachita v. Wolcott/Opinion of the Court

This action was commenced March 10, 1876, on fifty-four county warrants of Ouachita County, of the State of Arkansas, the plaintiff being a citizen of another State. The defence was that the county court of the county in conformity to the act of the Arkansas legislature of Jan. 6, 1857, made an order Jan. 4, 1876, calling in all the outstanding warrants of the county, including those sued on in this case, for the purpose of examination, cancellation, and reissue, fixing Friday the seventh day of April of that year as the limit of time for presenting them. All holders were notified to deposit them with the clerk any time prior to that date, and that on their failure to do so they would be forever barred from any claim thereon against the county. These warrants not being presented, were, four days after that date, formally declared by the county court to be barred. At the time of the original order calling them in they were the property of A. A. Tufts, a citizen of the State of Arkansas, who, some six weeks thereafter, sold them to Henry M. Cooper, also a citizen of that State, both of whom had legal and actual notice of said order.

On these facts the circuit judge was of opinion that as the plaintiff was a citizen of another State, and had brought the present suit before the time limited for bringing in the warrants under the order of the county court, they were not barred under the statute, while the district judge was of opinion that, because of the failure to comply with that order, the suit could not be maintained. Judgment was rendered April 8, 1978, in favor of the plaintiff, and the county removed the case here.

The circuit judge does not appear to have rested hig judgment upon any idea that the statute of Arkansas violated the contract, and was, therefore, void. There is no foundation for such a proposition, for the statute had been the law of the State for seventeen years when the warrants were issued. They were, therefore, subject to its operation. Nor is there any objection to this defence on the ground that the warrants were negotiable paper in the mercantile sense. This proposition is carefully considered and overruled in the opinion of this court, delivered at this term, in Wall v. County of Monroe, supra, p. 74.

But the citizenship of the plaintiff and the right to sue in the Federal court seems to have been the main point on which the judgment of the circuit judge rested.

Certainly, if the purpose or effect of the statute of Arkansas was to deprive a citizen of another State of his right under the act of Congress to prosecute any legal remedy he may have in that court, it should to that extent be disregarded. And the circuit judge probably treated the Circuit Court and the county court as courts of co-ordinate jurisdiction over the same subject and the same parties, and, therefore, disregarded the final judgment of the county court barring the claim of the holder which was entered during the pendency of the suit in the Circuit Court. If this manner of looking at the jurisdiction of the two courts were the true one, the result reached by the court would not follow. For the county court, according to the course of procedure prescribed by the statute, having first commenced proceedings, of which the then holder of the warrants had due notice, and they not being nogotiable as mercantile paper, that judgment was properly pleadable puis darrein continuance as a defence to the action.

But we do not think this is the correct mode of viewing the matter.

The statute of Arkansas, though a peculiar one, is a law which the legislature of that State had a right to make, and it is valid as to all county warrants issued after its enactment. It was designed to enable the officers who had charge of the financial affairs of the countyu to bring before them for review, adjustment, and renewal all the outstanding orders of the county, that they might know the amount of the debt, detect forgeries and frauds, incorporate interest which had been long standing in a new warrant with the principal, assign each warrant to payment out of its appropriate fund, and make arrangements for payment according to priority or other just claim of preference. There can be no doubt of the legislative authority to do this, and, as a means of enforcing the power thus conferred, to declare that warrants not presented after due notice shall no longer exist as debts against the county.

We see no reason to hold that such a proceeding is designed to deprive a holder of these warrants of his right of action in a court of the United States. The effect of it is the same in the State and the Federal courts. The neglect of the holder to perform the duty which the law imposed on him is a defence in either court. If he had presented his warrants, they would probably have been reissued, and this might have been a good replication to the plea; or he could have sued in the same court on his new warrants.

If, after presenting his warrants in due time, they had been illegally declared void, or rejected, the matter might have been inquired into by the court. But he had no right to disregard the law, which was a part of the contract on which they were issued, or to seek to evade it by a suit in the Circuit Court, after receiving notice that he was called on to comply with it. His right to sue in the Circuit Court is not denied or refused; but when that court comes to decide his case, the decision must be governed by the law of the State under which such non-negotiabel warrants were issued, by one of its municipal bodies.

It is ordered to be certified that the plea and the facts certified to us constitute a good defence.

Judgment reversed.


text: Talk:County of Ouachita v. Wolcott/Opinion of the Court


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Harter v. Kernochan

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

The facts are stated in the opinion of the court.

Mr. W. J. Henry for the appellant.

Mr. George A. Sanders, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Harter v. Kernochan


text: Talk:Harter v. Kernochan

title: Talk:Harter v. Kernochan


text:
Harter v. Kernochan/Opinion of the Court

This suit involves the liability of the township of Harter, in the county of Clay, State of Illinois, upon certain bonds, signed by its supervisor, countersigned by its clerk, and issued, in its name, under date of April 1, 1870. They were each made payable in the sum of $1,000 to the Illinois Southeastern Railway Company or bearer, thirty years after date, with interest at the rate of ten per cent per annum; the right, however, being reserved to the township to make payment at any time after five years from date of issue. Each recites that it is one of a series 'issued by said township to aid in the construction of the Illinois Southeastern Railway, in pursuance of the authority conferred by an act of the General Assembly of the State of Illinois, entitled 'An Act to incorporate the Illinois Southeastern Railway Company, approved Feb. 25, 1867,' and an act amendatory thereof, approved Feb. 24, 1869, and an election of the legal voters of the aforesaid township, held on the tenth day of November, 1868, under the provisions of said act.' Upon each bond also appears the certificate of the State auditor, stating that it had been registered in his office, pursuant to the provisions of the act entitled 'An Act to fund and provide for paying the railroad debts of counties, townships, cities, and towns,' in force April 16, 1869.

The bill was filed in the year 1877, in the Circuit Court for Clay County, by the township of Harter and two of its resident taxpayers,-the latter suing in behalf of themselves and all other taxpayers of the township,-against the State treasurer and auditor, the county clerk and treasurer, the township collector, supervisor, and clerk, and two justices of the township; and also against the 'unknown owners and holders' of such bonds with their coupons, who are alleged to be residents and citizens of States other than Illinois. It proceeded upon the ground that the bonds were issued without authority of law, and, consequently, were not binding upon the township. The prayer of the bill was that such a decree, with perpetual injunction, be rendered as would prevent the State, county, and township officers from taking any steps towards the assessment and collection of taxes to meet the bonds or any instalment of interest thereon; that the holders and owners of the bonds and coupons, their agents and attorneys, be required to bring the same into court for cancellation; and that the State and county treasurers be ordered to pay over to the township any money in their hands which had been raised by taxation for the payment of the bonds or their coupons. The officers who were sued, although duly served with process, made no defence. The unknown holders and owners of the bonds and coupons were proceeded against by publication in the manner authorized by the State law. A final decree was entered on the first day of May, 1879, giving relief to the full extent prayed for.

On the seventeenth day of April, 1880, Kernochan, the owner of all the bonds and coupons issued by the township,-having, it is conceded, acquired them before due, paying value therefor, and without notice of any defence except that appearing in the law and upon the face of the bonds themselves,-presented to the State court a petition stating that he had neither been summoned nor served with a copy of the bill, nor received any notice of the pendency of the suit. Upon that petition he based a motion to redocket the cause and open the decree, to the end that he might be heard touching the matters of such suit. His application was granted, and upon the same day he filed another petition, accompanied by a bond in the required form, asking the removal of the cause to the Circuit Court of the United States, upon the ground that the controversy was between citizens of different States, and that he was then, as well as at the commencement of the suit, a citizen of Massachusetts, while the complainants, during the same period, were citizens of Illinois.

The State court approved the bond and ordered the cause to be certified to the Federal court, with all the papers pertaining thereto.

In the Circuit Court the complainants entered a motion to remand the cause to the State court, which was overruled. Kernochan answered to the merits, and to that answer a general replication was filed. Upon final hearing, the injunction granted by the State court was dissolved and the bill dismissed. The township appealed.

Preliminary to any consideration of the questions involving the validity of the bonds, as obligations of the township, it is proper that we should notice, briefly, some remarks made by counsel for the appellant, in reference as well to the proceedings in the State court after the appearance of Kernochan, as to the removal of the suit into the Federal court.

We perceive nothing irregular or erroneous in the action of the State court, whereby the cause was redocketed and the decree opened. By the statutes of the State, when a final decree is entered against a defendant who has not been summoned, or served with a copy of the bill, or received the notice required to be sent to him by mail, and such person, his heirs, devisees, executors, administrators, or other legal representatives, as the case may require, shall, within one year after notice in writing is given him of such decree, or, in the absence of such notice, within three years after such decree, appear in open court and petition to be heard touching the matters of such decree, and shall pay such costs as the court shall deem reasonable in that behalf, 'the person so petitioning may appear and answer the complainant's bill; and thereupon such proceedings shall be had as if the defendants had appeared in due season and no decree had been made. And if it shall appear upon the hearing that such decree ought not to have been made against such defendant, the same may be set aside, altered, or amended, as shall appear just; otherwise, the same shall be ordered to stand confirmed against said defendant.' Hurd's Stat. Ill., 1880, p. 189, sect. 19. Kernochan appeared within one year after the decree had been passed. He was, therefore, entitled, according to any reasonable construction of the statute, to be heard touching the matters of the decree, as if no decree had been made. When the order was made opening the decree, he acquired a position in which he could take any step that might have been taken had he appeared in due season in obedience to a summons. The court was at liberty to proceed as if no decree had been made against him. He could have demurred, pleaded, or answered, or, the suit being removable into the Circuit Court of the United States, have filed a petition and bond as required by law in such cases. The contention of counsel for appellants is, in effect, that, until Kernochan answered the bill, the State court was without jurisdiction to proceed as if he had 'appeared in due season and no decree had been made.' But such a construction of the statute is too technical and is scarcely admissible where the party appearing, and who has been proceeded against by publication only, is a citizen of another State, entitled under the Constitution and laws of the United States to remove the cause from the State court. The utmost which could be claimed in such cases (and we do not say that such a claim could be sustained) is, that the State court might, in its discretion, decline to open the decree, or to hear the defendant, unless he presented an answer to the bill. In this case, the motion of Kernochan to redocket the cause and open the decree was granted, without requiring him to file an answer, disclosing his defence to the suit. We are not prepared to say that the State court erred in its ruling. We should, under the circumstances, assume that the State court correctly interpreted the local statute. If, therefore, the suit was removable, the Federal court, upon its removal, and after the pleadings were made up, and proofs taken upon the issues made by Kernochan, had the power to set aside, alter, or amend the decree as might be just, or adjudge that it stand confirmed as entered in the State court. Upon his appearance in the State court the suit became, as to him, for all practical purposes, a new suit, to be conducted, however, subject to the authority of the court to confirm the former, instead of entering a new, decree.

We do not doubt that the suit was one which the defendant was entitled, under the act of March 3, 1875, c. 137, to remove from the State court. Disregarding, as we may do, the particular position, whether as complainants or defendants, assigned to the parties by the draughtsman of the bill, it is apparent that the sole matter in dispute is the liability of the township upon the bonds; that upon one side of that dispute are all of the State, county, and township officers and taxpayers, who are made parties, while upon the other is Kernochan, the owner of the bonds whose validity is questioned by this suit. He alone, of all the parties, is, in a legal sense, interested in the enforcement of liability upon the township. It is, therefore, a suit in which there is a single controversy, embracing the whole suit, between citizens of different States, one side of which is represented alone by Kernochan, a citizen of Massachusetts, and the other by citizens of Illinois. Removal Cases, 100 U.S. 457.

But it is contended that the petition of Kernochan, for the removal of the suit, was not filed within the time prescribed by the act, that is, at the term at which the cause could be first tried. The argument is, that Kernochan, although not advised, in any legal mode, of the pendency of the suit, was at liberty to appear therein before the decree was entered, and, consequently, that he did not seek its removal at or before the term at which the cause could have been first tried; that his appearance, and filing his petition praying to be heard touching the matters of the decree, have relation to the time when he should have appeared in court, had he been duly summoned. The bare statement of this proposition suggests its refutation. When the defendant would have been summoned had he been within the local jurisdiction of the State court, we are not informed; and, consequently, it is difficult to ascertain, upon the theory of appellant's counsel, when he should have appeared in court. It is sufficient to say, that the defendant, within the period fixed by the statute, appeared and secured the opening of the decree. The first term thereafter, at which the cause could properly have been tried, upon the merits, as to him, was the term at which, within the meaning of the act, he should have filed his petition for removal. And it was so filed.

We come now to the consideration of questions involving the merits of the cause.

We have seen that the bonds recite that they were issued in pursuance as well of the authority conferred by the act of Feb. 25, 1867, incorporating the Illinois Southeastern Railway Company, and the act of Feb. 24, 1869, amendatory thereof, as of an election of the legal voters of the township, held on the tenth day of November, 1868.

The first of those acts conferred authority upon townships to donate to the railway company any amount not exceeding $30,000. That authority was not, however, to be exercised until after a proposition by the railroad company to the township, nor unless the donation was sanctioned by a majority of legal votes, cast at an election duly called and held to consider the question of donation, upon the terms proposed. It appears, from the record, that the company made to the township a proposition which contemplated a donation of $20,000, payable in three instalments, to be raised by a special tax, to be assessed and collected in 1869, 1870, and 1871; and which also bound the company to accept township bonds in lieu of the special tax, in the event legislation could be obtained giving authority to issue them. An election was held, on the day stated in the bonds, and the donation, upon the terms set forth in the company's proposition, was approved by a vote of three hundred, out of a total vote of three hundred and forty-two.

The fifth section of the amendatory act of Feb. 24, 1869, is in these words:--

'And whereas, certain townships in Wayne and Clay Counties     have voted donations to said railway company, said townships      are hereby authorized and empowered to issue township bonds      for the amount so donated, without submitting the proposition      again to be voted upon,-said bonds to be issued in sums not      less than one hundred nor more than one thousand dollars      each, with interest coupons attached, drawing interest at the      rate of ten per cent per annum, payable semi-annually at the      county treasurer's office, in each county where such      townships are located,-said bonds to be payable in five years      or any time thereafter, not exceeding twenty years, at the      option of the townships; and said bonds to be signed by the      supervisors thereof, or by the supervisor or supervisors of      the district wherein such township is located, and to be      countersigned by the township clerk of the respective      townships; and said bonds to be delivered, properly executed,      to the president of said railway company, when the conditions      are complied with as contained in election notices and      propositions submitted to and voted upon by the people of      said townships; and said townships shall each, by its proper      corporate authorities, provide, in due time, by a levy and a      collection each year of a sufficient tax on its assessed      property to pay the interest on its bonds, as it accrues      half-yearly, as aforesaid, and ultimately to provide for the      principal of said bonds at maturity: Provided, that said bonds shall be placed in the hands of a      trustee, on the demand of said railway company as hereinafter      provided: And, also, provided, that such townships may      determine, by a vote of their electors, at any regular or      special town meeting or election, whether they will issue      bonds or not in payment of the donations heretofore voted to      said company.' Private Laws Ill., vol. iii. p. 310.

In conformity with the provisions of that act, a special town meeting of the township was duly called and held on the twentieth day of May, 1870, at which the electors present voted unanimously in favor of an issue of bonds, in payment of the donation previously voted, rather than proceed with the levy and collection of a special tax, as contemplated by the original proposition of the company. A few days thereafter, to wit, May 27, 1870, as appears from the records of the township, the bonds, amounting to $20,000, were delivered by the township officers to the Springfield and Illinois Southeastern Railway Company, a corporation which had been formed on the 3d of December, 1869, in accordance with the laws of Illinois, by the consolidation of the Illinois Southeastern Railway Company with the Pana, Springfield, and Northwestern Railway Company. The bonds were transmitted by the township supervisor to the State auditor for registration, under the provisions of the funding act in force April 16, 1869. He certified, under oath, that they had been issued under the said acts of Feb. 25, 1867, and Feb. 24, 1869, and that all the preliminary conditions required, in the act of April 16, 1869, to be performed before such registration, and to entitle them to the benefits of that act, had been, to the best of his knowledge and belief, fully complied with. It may also be stated that taxes were annually levied, collected, and applied, by the township, in payments of interest on the bonds up to the commencement of this suit in 1877.

In view of these facts it is difficult to perceive upon what just ground the township can escape liability. In the first place, the bonds were issued in pursuance of a popular vote in favor of a donation to be met by tax, and also of a vote, at a subsequent special election, in favor of an issue of bonds in payment of that donation. In the next place, and as conclusive against the township, the recitals in the bonds import a compliance with all of the provisions of the acts of assembly under which they were issued. It is true that the bonds do not, in express words, refer to the special election of May 20, 1870; but since the amendatory act authorized the township, upon a vote, at a regular or special town meeting or election, to issue bonds in payment of the donation previously voted, the recital in them fairly imports that such an election was, in fact, held before they were issued.

If those acts are not repugnant to the Constitution of the State, it results that, according to repeated adjudications of this court, the township is estopped, by the recitals in the bonds, to assert that their provisions were not complied with. The Constitution of Illinois, in force when these acts were passed, declared that the corporate authorities of counties, townships, school-districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes. It is the settled law of the State, as heretofore recognized by this court, that this constitutional provision was intended to define the class of persons to whom the right of taxation might be granted, and the purposes for which it might be exercised; and that the legislature could not constitutionally confer that power upon any other than corporate authorities of counties, townships, school-districts, cities, towns, and villages, or for any other than corporate purposes. County of Livingston v. Darlington, 101 U.S. 411. Our attention is called to several cases in the Supreme Court of the State, in which it has been held that the legislature could not constitutionally require a municipal corporation, without its consent, to issue bonds or incur a debt for a merely corporate purpose. Some of those cases turn upon the inquiry as to who are, in the sense of the Constitution, corporate authorities of counties, cities, towns, &c., and what are corporate purposes. A leading case is Williams v. Town of Roberts (88 Ill. 11), where the court, speaking by Chief Justice Scholfield, said that under the system of township organization existing in Illinois, the electors alone represented the corporate authority of the town, and without their consent, expressed at town meetings or town elections, no debt for a merely local corporate purpose could be imposed upon the township.

But neither that nor any other decision by the State court cited by counsel distinctly meets the precise point now before us, or would justify us in holding (as we ought not to do except in a clear case) that the General Assembly of the State had transcended its constitutional powers. The act of Feb. 27, 1867, did not assume to impose a debt upon the township without the consent of the electors. It expressly required an election to be held, at which the legal voters could determine the question of donation for themselves. The election was held, and a donation voted to aid in the construction of a railroad. That, it must be conceded, was a corporate purpose, within the meaning of the Constitution as interpreted by the State court. But it is contended that the amendatory act authorized the township officers, without the assent of the voters, to impose a burden or create a debt wholly different from that to which the voters, at the election on the 10th of November, 1868, gave their assent. Counsel overlook or fail to give proper force to the proviso in that act authorizing the electors at a regular or special town meeting to determine whether they would issue bonds in payment of the donation previously voted to the company. And there was, as we have seen, a special town meeting, duly called for the specific purpose of determining that question, and the decision was unanimous in favor of issuing bonds to pay off the donation.

It is urged, in this connection, that the Supreme Court of the State, in the recent case of Schaeffer v. Bonham (95 id. 378), decided in 1880, has ruled that the fifth section of the amendatory act of Feb. 24, 1869, was in violation of the Constitution of the State, and that it was the duty of this court to accept that decision as conclusive. That case in many respects resembles this one, but, upon the particular point arising here, it is materially different. It was submitted upon an agreed statement of facts, from which it appears that a certain township had, in 1868, voted a donation to the Illinois Southeastern Railway Company, to be raised by special tax, under the authority conferred in the act of Feb. 25, 1867. But it did not appear, from the evidence in that case, that an election had been held, as authorized by the fifth section of the act of Feb. 24, 1869, to determine whether the donation should be paid by township bonds rather than by a special tax for a limited period. We infer from the agreed statement of facts in that case, as well as from the remarks of the court, that no opportunity was, in fact, given to the voters to determine the question of issuing bonds. The court said that the charter authorizing townships to vote donations did not contemplate, and, consequently, did not provide, for issuing bonds; that it only intended a donation to be paid by the levy of a tax, and the payment of the money, when thus collected, to the railroad company; that the legislature could not confer upon the township officers, without a vote of the people, authority to make such a radical change in the proposition upon which the people voted, as would occur, if, instead of a special tax, during a limited period, to meet the donation, township interest-bearing bonds should be issued, running from five to twenty years.

The State court, in referring to the fifth section of the act of Feb. 24, 1869, states that it 'authorizes and empowers townships in Wayne and Clay Counties, that had voted donations to the road, without submitting the question to a vote, to issue bonds,' &c. We are unable to concur in that construction of the act, since that section, after authorizing townships in Wayne and Clay Counties, which had voted donations to the railway company, 'to issue township bonds for the amount so donated, without submitting the proposition [for a donation] again to be voted upon,' expressly declares that 'such townships may determine by a vote of their electors, at any regular or special town meeting or election, whether they will issue bonds or not in payment of the donations heretofore voted to said company.' The purpose of the fifth section was to dispense, as to certain townships, with a second vote upon the general question of donation, and to confer authority to issue township bonds in payment of such donation, when, and only when, the electors so voted at a regular or special town meeting or election. In Schaeffer v. Bonham it did not appear that the voters were consulted as to whether bonds should be substituted in lieu of the special tax previously voted. The parties there sought the opinion of the court upon an agreed statement of facts, which, in effect, conceded that no such election was held. Here it is shown that the bonds in suit were issued in pursuance of the vote of the electors at a special town meeting called to determine the question whether the donation previously voted should be paid in that mode. It is clear that Schaeffer v. Bonham proceeds upon the ground, in part, that the bonds there in suit were issued in payment of the donation, without any submission of the question to the voters.

In another portion of its opinion, after stating that the assessment of taxes to pay off the donation was the imposition of a debt upon the township, the State court said: 'Had the township voted to incur a debt, and the bonds had been issued by a person named by the General Assembly, different from the corporate authorities, then payment of interest and acquiescence for such a length of time might have operated as an estoppel. In such a case, the vote to create the debt, if authorized by law and had in pursuance of law, would have been the essential act to create the debt, and the mere signing and delivering the evidence of the debt would have been valid if done by a person specified by the General Assembly, whether named before or after the vote was had. But such is not the case here. No debt was voted, and the legislature was powerless to authorize any but the corporate authorities to create a debt.' p. 381. If, as held by the State court, the issuing of bonds, in payment of the donation previously voted, was incurring a debt, and if such a debt could not be incurred without a direct vote of the electors, it is sufficient to say that such a vote was had in reference to the bonds here in suit.

For the reasons stated we are of opinion that the acts of Feb. 25, 1867, and Feb. 24, 1869, are not in violation of the Constitution of the State; and in so holding we do not, we think, come in conflict with any decision of the State court in which the precise question here presented has been passed upon.

It remains for us to consider whether the township can avoid liability upon the bonds by reason of the fact that they were delivered to the Springfield and Illinois Southeastern Railway Company, the donation having been originally voted to the Illinois Southeastern Railway Company.

We are of opinion that there is nothing of substance in this objection. The act incorporating the Illinois Southeastern Railway Company, the act amendatory thereof, and the act in relation the the Pana, Springfield, and Northwestern Railway Company (even if the general statutes of the State were not sufficient for the purpose), fully authorized the consolidation between those two companies, and upon such consolidation the new company succeeded to all the rights, franchises, and powers of the constituent companies. The power in the township to make a donation to aid in the construction of the Illinois Southeastern railway was also a privilege of the latter corporation, and that privilege, upon the consolidation, passed to the new company. The donation was voted before the consolidation took effect, and since the consolidated or new company did not propose to apply such donation to purposes materially different from those for which the people voted it in 1868, its right to receive the donation, at least when the township assented, cannot be doubted. The records of the township show that the bonds were directed to be issued and delivered to the new company, and it will not, under the circumstances, be allowed to say, as against a bona fide purchaser for value, that the bonds are invalid. There is, consequently, no pretext for saying that a burden was imposed upon the people to which they had never given their consent in the mode prescribed by law.

Other questions are discussed, but we do not deem it necessary to refer to them.

Decree affirmed.


text: Talk:Harter v. Kernochan/Opinion of the Court


text:
Ashburner v. California

ERROR to the Supreme Court of the State of California.

This is an action in the nature of a writ of quo warranto instituted by the State of California in the Superior Court for Sacramento County to determine the right of Ashburner to hold the office of member of the board of commissioners to 'manage the Yosemite Valley and Mariposa Big Tree Grove.' The complaint charges that he, on May 1, 1880, usurped the office and has since unlawfully withheld the same and wrongfully continued to discharge the duties thereof. This allegation the defendant denies.

The case was submitted to the court upon an agreed statement of facts, from which it appears that in pursuance of the act of Congress, entitled 'An Act authorizing a grant to the State of California of the Yosemite Valley, and the land embracing the Mariposa Big Tree Grove,' approved June 30, 1864, and an act of the legislature of California, entitled 'An Act to accept the grant by the United States government to the State of California of the Yosemite Valley and Big Tree Grove, and to organize the board of commissioners, and to fully empower them to carry out the objects of the grant, and fulfil the purposes of the trust,' approved April 2, 1866, the governor of the State appointed the defendant one of the commissioners provided for in said acts; and that at the time of the passage of the act of the legislature, entitled 'An Act to provide for the management of the Yosemite Valley and the Mariposa Big Tree Grove,' approved April 15, 1880, he was acting as such commissioner; that on April 19, 1880, after the adoption of 'Senate concurrent resolution No. 20, relating to appointment of eight commissioners to manage the Yosemite Valley and the Mariposa Big Tree Grove,' adopted Feb. 17, 1880, and the passage of the act of April 15, 1880, the governor, in pursuance of said concurrent resolution and said act, and by virtue of the authority thereby conferred upon him, appointed certain persons, of whom the defendant was not one, to be such commissioners, and each of them accepted the appointment, took, subscribed, and filed an oath of office in the manner and form prescribed by law for the officers of the government of the State; that more than four years had elapsed after the appointment of the defendant and before the passage of the act of April 15, 1880; that the defendant was not reappointed as such commissioner; that each of the commissioners appointed April 19, 1880, and the board by them composed, duly demanded of the defendant that he surrender the office and cease to discharge the duties thereof; but that he refused and still refuses to comply with the demand, it having been made after the qualification of the commissioners and before the commencement of this action; that the defendant has, ever since the passage of the act of April 15, 1880, continued to discharge the duties of commissioner, and has during all that time claimed, and still claims, that he is by law entitled to be a commissioner, and a member of the board as organized and existing at the time of the passage of that act, and to exercise and discharge all the powers, authority, and duties of commissioner, and of a member of the board,-he claiming and insisting that the board and the members thereof continue to be and are such board, notwithstanding the passage of that act and the appointments made by the governor April 19, 1880.

The provisions of the act of June 30, 1864, c. 184 (13 Stat. 325), are set forth in the opinion of the court.

Sects. 1 and 5 of the statute of California approved April 15, 1880, are as follows:--

'SECT. 1. The governor of the State of California, and the eight other commissioners appointed by him in accordance with the act of Congress, entitled 'An Act authorizing a grant to the State of California of the Yosemite Valley and the Mariposa Big Tree Grove,' approved June thirteenth, eighteen hundred and sixty-four, shall constitute a board to manage such premises, and the governor shall be ex-officio member of the commission and president of the board. The term of office of the commissioners shall be four years: Provided, that the eight first appointed shall so classify themselves, that four shall go out of office in two years, and four in four years; and thereafter the appointments shall be made four each two years. Vacancies occurring in said commission from death, resignation, or other causes, shall be filed by appointment, by the governor, to serve for the unexpired term only.'

'SECT. 5. The said commission shall, immediately after organizing, demand from the commissioners now acting, all the books, papers, and documents of any and every kind, pertaining to the business of the board, and it shall be the duty of the commissioners now acting to immediately comply with said demand.'

The Superior Court rendered judgment in favor of the defendant, and that judgment having been reversed by the Supreme Court of the State, Ashburner sued out this writ of error.

Mr. Alfred Barstow for the plaintiff in error.

Mr. John H. McCune and Mr. A. P. Catlin, contra.

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

title: Ashburner v. California


text: Talk:Ashburner v. California

title: Talk:Ashburner v. California


text:
Ashburner v. California/Opinion of the Court

By the act of June 30, 1864, c. 184, the United States granted to the State of California the Yosemite Valley and the Mariposa Big Tree Grove, 'with the stipulation, nevertheless, that the State shall accept this grant upon the express condition that the premises shall be held for public use, resort, and recreation, and shall be inalienable for all time;. . . the premises to be managed by the governor of the State and eight other commissioners, to be appointed by the executive of California, who shall receive no compensation for their services.' 13 Stat. 325. In 1866 the State of California, by an act of the legislature, accepted this grant 'upon the conditions, reservations, and stipulations contained in the act of Congress.' There cannot be a doubt that, in this way, these interesting localities were, by the joint act of the United States and California, devoted to a special public use. The title was transferred to California for the benefit of the public as a place of resort and recreation. Without the consent of Congress the property can never be put to any other use, and the State cannot part with the ownership. It may be called a trust, but only in the sense that all public property held by public corporations for public uses is a trust. It must be kept for the use to which it was by the terms of the grant appropriated. If it shall ever be in any respect diverted from this use the United States may be called on to determine whether proceedings shall be instituted in some appropriate form to enforce the performance of the conditions contained in the act of Congress, or to vacate the grant. So long as the State keeps the property, it must abide by the stipulation, on the faith of which the transfer of title was made.

The management of the property was intrusted by the United States to the governor of the State and eight other commissioners, to be appointed by him. This is one of the conditions contained in the act of Congress to which the State gave its assent when it accepted the grant. The State cannot commit the management to any other board than this, neither can it control his discretion in making the appointments; but we see no reason why the State may not set a reasonable limitation on the time a commissioner shall hold his place when appointed. This would be really nothing more than directing that the governor revise his appointments at stated periods. He will be left free to select whom he pleases, and by reappointments to continue old incumbents in their places if so inclined. His discretion in this respect would be in no manner interfered with. This, in our opinion, is all that was done by the act of April 15, 1880. The term of the office of a commissioner was fixed at four years; but the power of appointment was left exclusively with the governor, in whom, under the Constitution, is vested the supreme executive power of the State. The length of the term is that prescribed by the Constitution for State offices, and is certainly not unreasonable.

That Congress expected the State would, by appropriate legislation, aid the commissioners in the performance of their duties, and prescribe reasonable rules and regulations, not inconsistent with the general purposes of the grant, for their government in the administration of the trust, is abundantly shown by the fact that the acceptance of the grant was considered sufficient, notwithstanding the act of the legislature by which it was done contained various provisions of such a character. Among other things, it was enacted that the commissioners should be known in law as 'The Commissioners to manage the Yosemite Valley and the Mariposa Big Tree Grove,' and by that name they and their successors might sue and be sued; that they should have power to make and adopt all rules, regulations, and by-laws for their own government and the government, improvement, and preservation of the property, not inconsistent with the Constitution of the United States or of California, or with the act making the grant, or any law of Congress or the legislature; that they should hold their first meeting at such time and place as should be designated by the governor; that a majority should constitute a quorum for the transaction of business; that they should appoint a president and secretary as well as a guardian of the property, and that they should report through the governor to the legislature at every regular session. All this was consistent with the conditions and reservations of the grant, and evidently in aid of what Congress intended should be done. So, too, in our opinion, is the act of 1880. If, as is contended here, and was held by the dissenting judge below, when the commissioners were conce appointed the power of the governor over appointments was exhausted, until a vacancy occurred by death or resignation, and neither he nor the legislature could remove a commissioner for cause or otherwise, it is easy to see that unless some provision was made to guard against the accidents of disabilities incident to a life tenure of office, great embarrassments might arise in the management of this important property. It is entirely unnecessary to decide whether these commissioners are State officers or State commissioners within the meaning of those terms as used in the constitutions of the State adopted in 1848 and 1879, and, therefore, within the constitutional provision limiting the terms of such offices; but we are of the opinion, and decide, that a law of the State which limits the term of office of a commissioner under one appointment to a reasonable time is not repugnant to the act of Congress, and may be followed by the governor in making his appointments. The plaintiff in error had been in office longer than the limited period, when the governor, in the exercise of his discretion, appointed another person in his place. Upon this appointment he should have surrendered his office. It follows that the judgment of the court below was right.

Judgment affirmed.


text: Talk:Ashburner v. California/Opinion of the Court


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Jarrolt v. Moberly

ERROR to the Circuit Court of the United States for the Western District of Missouri.

The plaintiff is a citizen of the State of Illinois. The defendant is the city of Moberly, a municipal corporation of the State of Missouri. This action was brought to recover judgment upon several interest coupons, originally annexed to, but now detached from, bonds issued by the city for the purchase of lands, consisting of two hundred acres, to be donated to the St. Louis, Kansas City, and Northern Railway Company, for 'machine-shop purposes.' The petition-which is the designation given to the first pleading in the action-avers that on the 1st of May, 1872, the city issued fifty bonds, similar in form, differing only in their numbers, each for $500, to each of which twenty coupons were attached, each for the sum of $25, payable on the first day of November and of May of each year, and numbered from one to twenty; and it sets forth a copy of one of the bonds and coupons, as follows:--

'Moberly Machine-shop Bonds.

'No. ___.] UNITED STATES OF AMERICA. [$500.

'Know all men by these presents, that the 'municipal corporation of the inhabitants of the town of Moberly,' in the county of Randolph, in the State of Missouri, acknowledges itself indebted and firmly bound to W. F. Burrows or bearer in the sum of five hundred dollars, in current funds, which sum the said inhabitants of the town of Moberly hereby promise to pay to the said W. F. Burrows or bearer, at the Bank of America, in the city of New York, ten years after the date of this bond, together with interest thereon from date at the rate of ten per cent per annum, which interest shall be paid semi-annually, in current funds, on the presentation and surrender at said bank of the annexed coupons as they severally become due and payable, but this bond is payable at the option of the said inhabitants of the town of Moberly at any time after three years from the date hereof, and is payable only by a special tax on all the real estate and personal property lying and being within the corporate limits of said town.

'This bond is issued in pursuance of an election held in said town on the 26th day of March, A. D. 1872, to decide whether said town should purchase and donate to the St. Louis, Kansas City, and Northern Railway Company two hundred acres of land for machine-shop purposes, the result of said election being two hundred and twenty-eight votes for the purchase and donation, and one vote against the purchase and donation; and in pursuance to orders of the board of trustees of the inhabitants of the town of Moberly, made on the eighteenth day of April, A. D. 1872, which orders were made in accordance with an act of the General Assembly of the State of Missouri, entitled 'An Act to authorize cities and towns to purchase lands and to donate, lease, or sell the same to railroad companies,' approved March 18th, A. D. 1871.

'In witness whereof, the said inhabitants of the town of Moberly have executed this bond, by the chairman of the board of trustees of said town signing his name thereto, and by the clerk of said board of trustees, by order of said board, attesting the same and affixing thereto his signature and the seal of said corporation, in the town of Moberly, county of Randolph, State of Missouri, on the first day of May, 1872.

'J. B. FREEMAN,

'Chairman of the Board of Trustees of the Inhabitants of the Town of Moberly.

'ATTEST:

[SEAL.] 'J. W. DORSEY, Clerk.

'Coupon No. 1.

'$25.] MOBERLY, RANDOLPH COUNTY, MISSOURI. [$25.

'The municipal corporation of the inhabitants of the town of Moberly will pay the bearer, at the Bank of America, in the city of New York, twenty-five dollars, on the first day of May, 1872, being six months' interest on bond No. ___, for $500.00.

'J. W. DORSEY, Clerk.'

The petition also avers that the plaintiff is the holder of coupons amounting to $4,200, originally annexed to these bonds, but now detached from them, which are due and unpaid, for which sum he asks judgment. To the petition the defendant demurred, on the ground, among other things, that the act of the legislature under which the bonds were issued is in conflict with the Constitution of the State, and that the petition does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiff electing to stand upon his petition, final judgment was entered thereon for the defendant.

The judges, however, were divided in opinion upon the questions raised by the demurrer, and, in accordance with the statute, have certified, for the decision of this court, the following points upon which they differed, namely:--

First, Whether the act of March 18, 1870, entitled 'An Act to authorize cities and towns to purchase lands, and donate, lease, or sell the same to railroad companies,' recited in the bonds, is in conflict with sect. 14 of art. 11 of the Constitution of Missouri.

Second, Whether the petition states a valid and sufficient cause of action.

The act of March 18, 1870, under which the bonds were issued, declares that 'it shall be lawful for the council of any city, or the trustees of any incorporated town, to purchase lands, and to donate, lease, or sell the same to any railroad company, upon such terms and conditions as such board may deem proper, and for the purposes of assisting and inducing such railroad company to locate and build machine-shops or other improvements upon such lands; and for such purposes to levy texes upon the taxable property of such city or town, and to borrow money and to issue the bonds of such city or town for such purposes: Provided, a majority of the qualified voters of such town or city, at a special election to be held therein, shall assent to such purchase and donation.'

Sect. 14 of art. 11 of the Constitution of Missouri of 1865, with which it was contended the act conflicted, declares that 'the General Assembly shall not authorize any county, city, or town to become a stockholder in, or to loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.'

To meet the objections to the alleged invalidity of the bonds, the plaintiff cited the act of the legislature of Feb. 16, 1872, entitled 'An Act to protect counties, cities, and incorporated towns from combinations between railroad companies, county courts, city councils of cities, and boards of trustees of incorporated towns,' the first section of which declares that 'no county court of any county, city council of any city, nor any board of trustees of any incorporated town, shall hereafter have the right to donate, take, or subscribe stock for such county, city, or incorporated town, in, or loan the credit thereof to, any railroad company, or other company, corporation, or association unless authorized to do so by a vote of two-thirds of the qualified voters of such county, city, or incorporated town. And any justice of a county court, member of a city council, or member of a board of trustees of any incorporated town, who shall hereafter vote to donate, take, or subscribe stock for such county, city, or incorporated town, in, or loan the credit thereof to, any railroad company, or other company, corporation, or association, unless authorized to do so by a vote of two-thirds of the qualified voters of such county, city, or incorporated town, shall be adjudged guilty of a felony, and on conviction thereof shall be punished by imprisonment in the penitentiary for not less than two years.'

Other sections repeal all acts or parts of acts inconsistent with it. The act took effect on its passage. On the 29th of March, 1872, the legislature passed another act, in terms amending the first section of the act of March 18, 1870, so as to read as follows:--

'It shall be lawful for the council of any city, or the trustees of any incorporated town, to purchase land, and to donate, lease, or sell the same to any railroad company, and to contract, for a period of time not exceeding twenty years, with such railroad company, for the payment of all or any part of the taxes which may at any time be levied by the authorities of such town or city, and for such town or city purposes only, upon property of such railroad company, and upon such terms and conditions as such board of said city or town may deem proper, for the purpose of assisting and inducing said railroad company to locate and build machine, work, or other shops, or other improvements, upon such land for the purpose of such purchase, to levy taxes upon the taxable property of such city or town, and to borrow money and issue the bonds of such city or town for such purpose: Provided, that two-thirds of the qualified voters of such town or city, at a regular or special election to be held therein, shall assent to such purchase or donation.'

This act took effect on its passage.

Mr. John D. Stevenson for the plaintiff in error.

Mr. J. H. Overall, contra.

MR. JUSTICE FIELD, stating the case, delivered the opinion of the court.

title: Jarrolt v. Moberly


text: Talk:Jarrolt v. Moberly

title: Talk:Jarrolt v. Moberly


text:
Jarrolt v. Moberly/Opinion of the Court

The object of the inhibition in the State Constitution was to prevent the creation of debts by counties, cities, and towns on behalf of any company, association, or corporation without the assent of two-thirds of their qualified voters. The loan of their credit, that is, the placing of their obligations for the payment of money for the use of companies, was the usual mode in which they incurred indebtedness. Aid in this way to companies, particularly such as were organized for the construction of railroads, was given so frequently by municipal bodies in Missouri, before the Constitution of 1865 went into effect, as in many instances to greatly embarrass and subject them to burdensome and oppressive taxation to provide for the interest on their obligations and the ultimate payment of the principal.

Numerous acts of the legislature had authorized officers of counties and cities to subscribe for stock in railway companies, and to issue bonds for their aid without limit as to amount and without the previous assent of those who were to be taxed for their payment. In many instances the road, in aid of which the bonds were issued, was never constructed, and as no benefit resulted to the counties and cities, their inhabitants naturally felt impatient under the burdens which their officers had improvidently imposed.

It was the purpose of the constitutional provision to check these abuses, by requiring the previous assent of two-thirds of the qualified voters of the municipal bodies before any more stock should be subscribed by them or any further indebtedness be thus incurred. The issue of obligations directly to the company, association, or corporation, without such previous assent, is within the letter of the prohibition, and to purchase property to be given to such company, association, or corporation by the issue of obligations to others, without such assent, is within its spirit. Both modes of using the bonds of the municipality are equally a use of its credit, the difference being that the one is a direct and the other an indirect way of employing the credit of the municipality for the benefit of the railway company. It would be a narrow constitutional provision to hold constitutional lprovision to hold that it prohibited the creation of indebtedness by a municipality by a direct use of its credit for the railway company, and yet permitted such creation by the indirect use of it for the same purpose. A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed. In accordance with this principle, this court held in Harshman v. Bates County that the inhibition in question extended to townships in Missouri as well as to counties, cities, and towns, although townships were not mentioned. To contend, said the court, that the mere subdivision of counties into townships enabled the legislature to evade the constitutional provision is to ignore the manifest intention and spirit of that instrument; that it could not be possible that it was intended to restrict the legislature as to counties and not to restrict it as to mere sectional portions of the counties. 92 U.S. 569.

Considering the provision in this spirit, and looking at the evil to be prevented, we are of opinion that the issue by the defendant of its bonds to purchase lands, to be donated to the railway here, was a loan of its credit which could not be made without the assent of two-thirds of the qualified voters of the city. It is true that a loan implies a return of the thing loaned at some future day. A loan of credit would, therefore, seem to require that the party receiving its benefit should provide for its cancellation by the payment of the bonds issued. This being so, it would be unreasonable to hold that, whilst the framers of the Constitution intended to prohibit a temporary use of the credit of a municipality without the previous assent of two-thirds of its qualified voters, they were willing that the absolute grant of the credit should be made without such assent. We do not think that a construction leading to such a conclusion is permissible. The act of March 18, 1870, must, therefore, be held to be in conflict with the Constitution of the State. It authorizes a majority of the voters of a municipality to do that which the Constitution declares the legislature shall not authorize to be done except by the assent of two-thirds of such voters.

The Supreme Court of Missouri has given a similar construction to the constitutional provision. An act of the legislature had, among other things, provided for the establishment of a school of mines and metallurgy as a branch of the university of the State, which was to be located in such county having mines as should donate to the board of curators of the university, for buildings and other purposes of the school, the greatest available amount of money and bonds. The act authorized the county court, of a county desirous of making a donation, to issue bonds of the latter to be delivered to the board of curators and to be by them sold, and the proceeds used in the purchase of the land and the erection of the necessary buildings. Under this act, the County Court of Phelps County ordered the issue of bonds, at different times, amounting in all to $75,000, to be used as mentioned, and their delivery to the curators. The order was made without the assent of two-thirds of the qualified voters of the county, and, upon the petition of the State, the sale of the bonds was enjoined, the court holding that their issue was a loan of credit within the constitutional inhibition, and that the act authorizing their issue, without the sanction of two-thirds of the voters of the county, was void. It stated that the object of the inhibition upon county courts and city and town municipalities was to prevent them from taxing the people without their assent. 57 Mo. 178.

The difference between that case and the one at bar is only in the mode of effecting the same result. There the bonds were given to the curators to be by them sold and the proceeds invested in the establishment of the school of mines. Here the bonds were to be sold by the municipality issuing them, and the proceeds used by it in the purchase of lands to be donated to the railroad company. The object of the loan in both cases, in authorizing the issue of the bonds, was the purchase of property and the donation of it to corporations. As remarked by counsel, it is difficult to see how the fundamental law of the State could be evaded by a change of the parties through whom the credit of the municipality is to be converted into money. In either case the debt created is to be paid by taxation.

The subsequent case of the County Court of St Louis County against Griswold does not change this decision. The bonds there considered were issued to purchase lands in St. Louis for a public park for the benefit of its inhabitants. There was no loan of credit for the use of any other parties in the case. 58 id. 175.

The act of the legislature of Feb. 16, 1872, upon which much reliance is placed by counsel for the plaintiff, is merely prohibitory in its character, forbidding the officers of counties, cities, and towns to donate, take, or subscribe stock in any railroad or other company, corporation, or association, or the loan of their credit, without the previous assent of two-thirds of their qualified voters, and prescribing a punishment for a disregard of its provisions. It confers, of itself, no authority. The inhibition upon the officers of a county, city, or town to loan its credit without the previous assent of others, was not an authority to loan it when such assent was given. Authority to create an indebtedness against a municipality, except on certain conditions, was not conferred, because the attempt thus to create it was made punishable as a crime. Further legislation was needed. Such was the evident opinion of the legislature of the State, for, by an additional act, passed on the 29th of March, 1872, the authority was given in terms.

We answer, therefore, the first question certified to us in the affirmative, and the second in the negative.

Judgment affirmed.

MR. JUSTICE HARLAN dissenting.

title: Jarrolt v. Moberly/Opinion of the Court


text: Talk:Jarrolt v. Moberly/Opinion of the Court


text:
Jarrolt v. Moberly/Dissent Harlan

MR. JUSTICE HARLAN dissenting.

The recitals in the bonds show that an election was held, in the town of Moberly, three days before the passage of the act of March 29, 1872, to decide whether that town should purchase and donate to the St. Louis, Kansas City, and Northern Railway Company, two hundred acres of land for machineshop purposes; that two hundred and twenty-eight votes were cast in favor of, and only one against, such donation and purchase; that the bonds in question were issued in pursuance of that election and of the orders of the board of trustees of the town, made on the eighteenth day of April, 1872; and that such orders were made in accordance with the aforesaid act of March 18, 1870.

The circuit judge conceded it to be the settled law of Missouri that municipal aid could be given to railroad companies without infringing the Constitution of the State; and that if machine-shops constituted an integral or essential part of a railroad, or were necessary for its convenient use or operation, then the act of March 18, 1870, was not obnoxious to the principles announced in Loan Association v. Topeka, 20 Wall. 655. But he was of opinion that the issuing of the bonds in suit to be used in the purchase and donation of lands to a railroad company for machine-shop purposes was a 'loan of credit,' upon the part of the town, within the meaning of the State Constitution; and that, consequently, the act of March 18, 1870, was unconstitutional, in that it permitted an issue of bonds, for such purposes, upon the assent only of a majority of the qualified voters of the municipality.

In the view which I take of this case, it is not necessary to decide whether this transaction was, or not, a loan of credit. For, assuming that it was, the petition must be regarded as stating a valid and sufficient cause of action against the defendant if, at the time of the election, held on the 26th of March, 1870, the act of March 17, 1870, had become so modified by subsequent legislation, as to require the assent of two-thirds of the qualified voters of the town as a condition precedent to any issue of bonds to be applied in the purchase of lands to be donated to the railroad company for machine-shop purposes. And such, I think, was the legal effect of the act of Feb. 16, 1872. The first clause of its first section declares, that 'no county court of any county, city council of any city, nor any board of trustees of any incorporated town, shall hereafter have the right to donate, take, or subscribe stock for such county, city, or incorporated town, in, or loan the credit thereof to, any railroad company. . . unless authorized to do so by a vote of two-thirds of the qualified voters of such county, city, or incorporated town.' The General Assembly, of course, knew when they passed the law of Feb. 16, 1872, that the previous statute of March 18, 1870, had assumed to authorize counties, cities, and towns to make donations to railroad companies, for machine-shop purposes, upon a bare majority vote of the qualified electors. The prohibition against donations thereafter, except with the sanction of two-thirds of the qualified voters, was, in view of former legislation, equivalent to an affirmative recognition of power thereafter to make such donations in pursuance of the provisions of the act of Feb. 16, 1872. That act imported into the act of March 18, 1870, the requirement of a two-thirds affirmative vote as a condition precedent to any donation of land for machine-shop purposes. The express repeal, by the act of Feb. 16, 1872, of all parts of laws inconsistent therewith, evinces a purpose, upon the part of the General Assembly, to do something more than declare a violation of that act, by any of the officers therein named, to be a felony. Nor was it intended to withdraw from counties, cities, and towns authority, under any circumstances, to make such donations. Manifestly there was also a purpose to provide against the possibility of donations or loans of credit, under any existing statute, except with the express sanction of two-thirds of the qualified voters of the municipality. The only difficulty in the way of this conclusion arises from the negative character of the language of the first clause of the act of Feb. 16, 1872. But that difficulty seems to be removed by the fact that a previous statute having assumed to confer upon counties cities, and towns the power to make donations to railroad companies for machine-shop purposes, the object of the act of Feb. 16, 1872, was thereafter to require the previous assent of two-thirds of the electors, and to repeal all acts or parts of acts inconsistent with that requirement. The bonds, upon their face, show the assent of all the electors voting except one. Had these bonds recited, in terms, that they were issued in pursuance of the act of March 18, 1870, as modified by subsequent legislation, there would have been no ground upon which to question the authority to issue them.

But the rights of the purchaser of the bonds should not be sacrificed because the reference to the statute, by authority of which they were issued, was not full or technically accurate. When the election was held, the statute of March 18, 1870, as modified by that of Feb. 16, 1872, authorized an issue of bonds for the purchase of lands to be donated for machine-shop purposes, two-thirds of the qualified voters of the town assenting thereto. The provisions of that statute, as thus modified, seem to have been complied with.

I am of opinion that the act of March 29, 1872, passed after the election of March 26, 1870, was only cumulative legislation, so far as it related to subjects embraced in the act of March 17, 1870, as modified by the act of Feb. 16, 1872. I think that the act of March 17, 1870, as modified by the act of Feb. 16, 1872, was constitutional, and that the petition states a good cause of action against the defendant, even if the issue, by the town, of bonds for the purposes indicated, was a loan of credit, within the meaning of the State Constitution.

For these reasons I feel obliged to dissent from the opinion and judgment.

title: Jarrolt v. Moberly/Dissent Harlan


text: Talk:Jarrolt v. Moberly/Dissent Harlan

title: Talk:Jarrolt v. Moberly/Dissent Harlan


text:
Adam v. Norris

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

The facts are stated in the opinion of the court.

Mr. S. F. Leib for the plaintiffs in error.

Mr. Benjamin S. Brooks and Mr. James K. Redington, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Adam v. Norris


text: Talk:Adam v. Norris

title: Talk:Adam v. Norris


text:
Adam v. Norris/Opinion of the Court

This was an action to recover possession of land, brought by Adam and Schuman in the District Court of the State of California for the County of Santa Barbara, but removed on the petition of Norris and the other defendants into the Circuit Court of the United States for the District of California, where, by agreement of the parties, it was tried without a jury. The court made a finding setting forth all the facts on which the title of each party rests. There was a judgment for the defendants. Adam and Schuman sued out this writ.

The case is one dependent strictly on the legal title. Each party is supported by a patent from the United States issued upon a confirmed Mexican grant, and by a survey approved by the General Land-Office. Each patent includes the land in controversy. The explanation of this is, that while the grants were in the main for different tracts of land, they interfere and overlap when the lines of each are clearly ascertained.

The defendants hold under a grant of the Rancho Guadalupe from the Mexican government, dated March 21, 1840, to Teodoro Arrellanes and Diego Olivera, a decree of the District Court of the United States for California confirming that claim May 12, 1857, and a patent from the United States, dated March 1, 1870.

The plaintiffs assert title under a grant of that government of the Rancho La Punta de la Laguna, dated Dec. 29, 1844, to Louis Arrellanes and Eusides Miguel Ortega, which was confirmed by the District Court May 2, 1854, and a patent issued thereon Oct. 2, 1873.

If this were all, it would seem clear that the defendants, being in possession of the land under the older patent from the United States, and the older grant from the government of Mexico, the judgment of the Circuit Court should be affirmed. To this view the plaintiffs assign several objections as errors, some of which we will notice.

1. The survey on which the plaintiffs' patent was issued having been approved by the surveyor-general Jan. 29, 1861, and publication of it, under the act of June 14, 1860, duly made in February and March, 1861, the plaintiffs insist that as no objection was made to it, it became final and conclusive at that time, while that on which defendants' patent was issued was approved by the surveyor-general in June, 1867.

The act of Congress of June 14, 1860, c. 128 (12 Stat. 33), required the surveyor-general, whenever a survey of a confirmed Mexican grant had been approved by him, to make a publication of the survey for a prescribed time, which should be held to be notice to everybody of what it included. Any one desiring to contest the correctness of this survery could, on a proper application, have it removed or filed in the District Court of the United States, where the objection to it should be heard and determined, and, if necessary, corrected by a new survey or otherwise. The fifth section of the act then declares that 'the said plat and survey, so finally determined by publication, order, or decree, as the case may be, shall have the same effect and validity in law as if a patent for the land so surveyed had been issued by the United States.'

Counsel for the plaintiffs has argued that a patent from the United States is final and conclusive on everybody, and that the title which it confers cannot be disputed in a court of law.

No doubt, where the patent is for land to which the government had an undisputed title, the proposition is generally, if not allways, true. But the United States, in dealing with parties claiming, under Mexican grants, lands within the territory ceded by the treaty of Mexico, never made pretence that it was the owner of them. When, therefore, guided by the action of the tribunals established to pass upon the validity of these alleged grants, the government issued a patent, it was in the nature of a quitclaim,-an admission that the rightful ownership had never been in the United States, but had passed at the time of the cession to the claimant, or to those under whom he claimed. This principle has been more than once clearly announced in this court. The leading cases are Beard v. Federy, 3 Wall. 478; Henshaw v. Bissell, 18 id. 255; Miller v. Dale, 92 U.S. 473.

Such a patent was, therfore, conclusive evidence only as between the United States and the grantee that the latter had established the validity of the grant.

The last of the cases above cited gives the history of the act of June 14, 1860, and holds that the effect of a compliance with the act is limited to the establishment of the conformity of the survey to the decree of confirmation, which fact could not afterwards be disputed by any one who, under that act, had opportunity to contest it before the District Court.

We do not think, therefore, if the defendants' survey and patent are based upon a superior Mexican grant, that their rights are concluded by the prior survey of the plaintiffs.

2. It is insisted that a patent was issued in 1866, on a survey of the Guadalupe grant, which did not include the lands in controversy; that this action terminated the authority of the land-office in the matter; and that the subsequent survey and patent of 1870, which do include them, are, therefore, void.

It is not necessary to decide whether the refusal of the grantee to accept the patent in the present ease, and his return of it to the Commissioner of the General Land-Office, who ordered a new survey, remove the objection here made, though it is not easy to see why his refusal to accept the patent, and his consent to its return, before intervening rights had accrued to any one, did not authorize a correction of any defect in that patent.

This is, in effect, what was done, and whether the patent of 1866 is still a valid patent, or is no longer of any force, cannot affect this case. If it be valid as to the land covered by it, that does not make void the patent of 1870 for land not covered by it.

If the conveyance of 1866 passed the title to the claimants of a part of the land covered by their confirmed grant, there is no reason why an additional patent should not convey the remainder when the proper officer became satisfied that the first did not convey all that had been confirmed to them. Nor is the last patent rendered invalid because, in addition to the land not conveyed by the first patent, it purports to convey also what was already patented.

In short, it is but the common case of a grantor who, having failed to convey what he was bound to convey, makes another deed to correct the wrong. The deeds are not in conflict. If the power of the land-office was exhausted by the first deed, it was only so as to the land which it included. The legal title to that alone could pass by that patent, and if the title to the land now in question remained in the government, the patent of 1870 was sufficient to convey it.

We think the error is not well assigned.

The only other assignment which requires notice is, that judgment should, on the pleading, have been rendered for the plaintiffs.

Plaintiffs averred that they were the owners of a certain large tract of land. That held by defendants was but a small part of this, and they, by their answer, did not set out their own metes and bounds, or any description of what they held, but denied that plaintiffs were the owners and entitled to all the land described in the complaint.

It is said that this made an immaterial issue; for if plaintiffs owned the land in possession of defendants, it was not necessary to prove their ownership of what lay outside of that, though claimed in their petition.

This objection was not made in the case before the Circuit Court. The case was submitted to the court, which found all the facts necessary to decide the question of title to the land held by defendants. We think it is too late to raise this technical question after a full hearing and finding by the court of all the facts pertinent to the case. The pleading would be good after verdict. A multo fortiori is it good after this finding, and on appeal, with no attempt to correct it in the court below.

Judgment affirmed.

title: Adam v. Norris/Opinion of the Court


text: Talk:Adam v. Norris/Opinion of the Court


text:
United States v. Quigley

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

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

Mr. John D. McPherson, contra.

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

title: United States v. Quigley


text: Talk:United States v. Quigley

title: Talk:United States v. Quigley


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

The facts of this case as gathered from the findings below are these: In 1860, the claimant, a native of Georgia, was domiciled at Dalton in that State, and doing business as a merchant. About the time the State seceded he left his home and his business and went to Indiana, where he remained until the end of the war. Before leaving he appointed an agent to manage for him while he was gone. This agent, in 1864, bought for him, with moneys collected or acquired on his account, two bales of cotton that were afterwards captured by the military forces of the United States at Savannah. The proceeds, $350.66, are now in the treasury under the Abandoned and Captured Property Act. On these facts the Court of Claims gave judgment against the United States, and to reverse that judgment this appeal was taken.

As was very properly said by the court below, if this claimant had remained at home in his native State and served the Confederacy during the entire war, acquiring his money and buying his cotton himself, this judgment would be right. No actual change of his domicile is shown, and his agent has done for him no more than he might himself have lawfully done if he had stayed where his property was. In no just sense was he trading across the lines with the enemy through the operations of this agent. He was simply saving what he had been compelled to leave, in order to avoid becoming in law an enemy of his government. His property being in enemy territory was enemy property, and subject to capture as such; but he was both in law and in fact a friend. The agency he left behind was only to manage what he could not take away; and as the money invested in the cotton was collected or acquired through this agency, we will presume it was obtained at the place he left rather than sent through the lines. If the facts were otherwise, the United States should have caused it to be so found. No other reasonable construction can be given to the findings as they appear in the record, than that the cotton is the proceeds of the property invested in the business the claimant was compelled to abandon in order to avoid becoming personally implicated in a rebellion against his government.

Judgment affirmed.


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


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Swan v. Arthur Fleitman

ERROR to the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. Stephen G. Clarke for the plaintiffs in error.

Mr. Assistant Attorney-General Smith, contra.

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

title: Swan v. Arthur Fleitman


text: Talk:Swan v. Arthur Fleitman

title: Talk:Swan v. Arthur Fleitman