text:
City of St. Louis v. United States/Opinion of the Court

The subject of this controversy is the title to the land known as Jefferson Barracks, consisting of about seventeen hundred acres, five miles below the city of St. Louis. It lies within the lines of a survey of the commons of Carondelet, containing a much larger quantity,-nearly ten thousand acres.

The present suit was instituted in the Court of Claims, in 1859, by the city of Carondelet. As the jurisdiction of that court was doubted, Congress, by the act of 1873 (17 U.S. Stat. 621), specially authorized it to entertain jurisdiction of the controversy. The city of Carondelet having become merged in the city of St. Louis by an act of the legislature of Missouri, the latter city was substituted as plaintiff.

A deed conveying the land in controversy to the United States was made by the city of Carondelet on the twenty-fifth day of October, 1854; and it is not controverted that the authority under which this was done was sufficient. If this deed be held to be otherwise valid, it decides the controversy in favor of the United States. Its validity is denied, however, on the part of plaintiff, on the ground that it was without consideration, and that it was improperly coerced from the authorities of Carondelet by the officers of the government who had charge of the department of public lands by an unjust and illegal exercise of authority in refusing to confirm and threatening to set aside the survey, which we have already mentioned, of the Carondelet commons, and exacting this deed as the condition of their acquiescence in that survey. On the other side, the deed is supported as a just and equitable compromise of a long-existing controversy, both as to the correctness of that survey and the right of the government to the ground known as Jefferson Barracks.

The origin of the claim of Carondelet was a concession of six thousand arpents of land adjoining the village, made in 1796 by Zenon Trudeau, lieutenant-governor of Upper Louisiana. An attempt to give locality to this concession was made by Soulard (who describes himself as a surveyor commissioned by the government) in December, 1797; but the first actual survey was made in 1818 by Elias Rector, who was deputy under his father, William Rector, surveyor of public lands for the Territories of Illinois and Missouri.

The Court of Claims finds, that, though the field-notes of this survey were filed in the surveyor's office, it was never approved by him.

But, in the year 1834, Elias T. Langham, surveyor-general at St. Louis, caused J. C. Brown, one of his deputies, to retrace and re-establish the lines of Rector's survey; and, when the result of the work was returned to his office, he approved the survey, and the same was duly filed in the office of recorder of land-titles in Missouri, who thereupon certifies that the title was by him duly confirmed of the village to their claim as commons of six thousand arpents of land, as shown by that survey. Six thousand arpents are equivalent to five thousand one hundred and four acres. The survey contained nine thousand nine hundred and five acres; and the Court of Claims finds, that, after deducting from that quantity the Jefferson-Barracks claim and all private claims, there still remained nearly one thousand acres more than the six thousand arpents. There is no evidence that this survey was ever brought to the attention of the Land Department in Washington until June, 1839.

In that year, the surveyor-general at St. Louis seems to have called the attention of the district-attorney of the United States for Missouri to the survey in connection with the location of Jefferson Barracks; and, the letter having been transmitted to the Secretary of War, an investigation of the whole matter was instituted by the commissioner of public lands.

This resulted in an order, made in 1841 by Commissioner Whitcomb to Surveyor-General Milburn, directing a new survey of these commons, on the principle of reserving one thousand seven hundred and two acres for military purposes at Jefferson Barracks, allowing six thousand arpents to Carondelet for her commons, and restoring the balance, not covered by private claims, to sale as public lands.

It may as well be here stated that this order was never carried out.

In the year 1826, the military authorities of the United States, desiring to establish at that point a military post, procured from twelve inhabitants of the village of Carondelet a deed conveying to the United States a described portion of the land which they claimed as part of the commons of the village, with a reversion to the village whenever the United States should cease to use it for military purposes. From that time the government has been in continued possession of the property.

It appears by the findings of the court that certain persons who had purchased lots of the city of Carondelet, not conflicting with the barracks claim, and other citizens of Carondelet, becoming uneasy about the condition in which the title to all the commons was left by the order of Commissioner Whitcomb, employed agents to procure a confirmation of the Brown-Rector survey. They appeared at Washington, and a negotiation, remonstrance, and correspondence was carried on for several years; and divers opinions and decisions were had from Commissioners of the Land-Office, and Secretaries of the Treasury and Interior, none of which confirmed the survey as valid.

Finally, without any suggestions shown to come from the United States or its officers, the parties interested in the settlement of the title of Carondelet to the remainder of the commons, and the authorities of that city, conceiving that, if the title of the United States to that reservation was made good, the main difficulty in the way of this settlement would be removed, the authorities of the city made the deed we have already mentioned, of October, 1854.

And accordingly, on the 8th October, 1855, another survey on the basis of Brown's, but marking the barracks property as reserved, and giving its boundaries, was made and confirmed by the Commissioner of the Land-Office as the true survey of the Carondelet commons.

It is obvious enough from this imperfect sketch of the history of the controversy that the deed of the city to the United States and the subsequent confirmation of the survey were the result of a compromise of a long-pending contest between the parties to it. No fraud is found or suggested. The action of the city of Carondelet cannot be impeached on the ground of duress within any legal or equitable definition of that term as applied to contracts. It was a suggestion originating with Carondelet, designed to secure action, which she desired. The officers of the Land Department were doing nothing in the matter. The order for the new survey, made in 1841, had never been executed; and in 1845 Commissioner Shields had declared that there was no intention to carry that order into effect until further action by Congress, and this was repeated by Commissioner Young in 1846.

If, as is now argued, Carondelet had a perfect title to the land in controversy, she had nothing to do but remain quiet, or assert her title in the courts of law which were open to her; for no officer of the government from 1841 to the date of this deed-a period of thirteen years-did any thing to affect that title, or to deprive her of her rights.

But the opinion of all the officers of the Land Department was against the validity of that survey, and of course against her title to any commons at all as being perfect. The Supreme Court of the State of Missouri had so decided in 1844 in the case of Dent v. Bingham, 8 Mo. 579. It was known that the survey included nearly twice as much land as was originally claimed under the grant of Trudeau.

The Land-Office, while it declined to exercise it, had asserted the right to set aside that survey and order another, and was apparently only awaiting some action of Congress.

How can it be said under these circumstances, after a contest of thirteen years, that Carondelet, in proposing to release her claim to the one thousand seven hundred acres of the barracks reservation in exchange for the quieting and perfecting of her title to the remainder of the commons, acted under duress? or acted unwisely? or that the compromise was, as to her, inequitable?

It is said to be inequitable, because it is now the settled law, that under the act of 1812, confirming the titles of the villages to their common lands, the title became perfect on the completion of the survey.

We are not disposed to deny the doctrine, that when such a survey was made by the proper officers in 1839, and approved by the Surveyor-General, that it constituted a title to the land.

But this doctrine was not so completely and fully settled at the date of this compromise as to be free from doubt; and, if it were, there still remained the question of the power of the Commissioner of the General Land-Office to set aside a survey so made, and order another,-a power which undoubtedly exists as to all surveys made for many years past, however it may have been in 1841.

But it is important to consider that the Land Department then asserted such a power, and no decision had then settled the law to the contrary. It was, therefore, a proper element of doubt in considering the question of a compromise.

If, however, the commissioner had no such power, and conceding that the approval of that survey by the Surveyor-General completed the legal title to the land it included, there can be no doubt of the right of the United States, treating the same as if it were a patent, to file a bill in chancery to set it aside as improvidently made; and, on the trial of this issue, the excessive quantity of the survey, the reservation and long possession of the barracks, and perhaps other circumstances, would have made the result doubtful enough to justify the authorities of Carondelet in compromising the matter in advance of such a suit.

In short, we are of opinion that the deed of Carondelet is valid, as based upon an equitable compromise of a long-pending and doubtful question of title, and that it excludes the plaintiff in this suit from any relief.

Judgment affirmed.


text: Talk:City of St. Louis v. United States/Opinion of the Court

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


text: 1911 Encyclopædia Britannica/Enthusiasm

title: 1911 Encyclopædia Britannica/Enthusiasm


text:
Tyng v. Grinnell

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

Mr. C. Donohue for the plaintiff in error.

Mr. Assistant Attorney-General Edwin B. Smith, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Tyng v. Grinnell


text: Talk:Tyng v. Grinnell

title: Talk:Tyng v. Grinnell


text:
Tyng v. Grinnell/Opinion of the Court

Import duties of two cents and a half per pound were, by the act of the 30th of June, 1864, levied on steam, gas, and water tubes and flues; and it appears that the second section of the act of 3d March, 1865, levied one cent per pound on wrought-iron tubes, in addition to the duties heretofore imposed by law. 13 Stat. 204, 493.

Certain wrought-iron articles of tubular form, intended to be so used as to allow the passage through the same of the products of combustion, were imported into the port of New York by the plaintiffs; and the record shows that the importers, on the 21st of January, 1870, made due entry of the importation, and that they claimed that the articles imported and described in the entry were flues, and that they were subject only to the import duty of two cents and a half per pound; and it appears that the defendant, as the collector of the port, decided that the articles described in the entry were wrought-iron tubes, and that they were dutiable as such at three cents and a half per pound, under the second section of the last-named act of Congress.

Pursuant to the decision of the collector, the duties on the importation were, on the 12th of February following, ascertained and liquidated by the proper officers of the customs; and it also appears that the plaintiffs, within ten days thereafter, gave notice in writing to the collector that they were dissatisfied with his decision fixing the rate of duty to which the articles imported were subject. In the absence of any objection to the form of the notice, it may be assumed that it was correct.

Seasonable appeal was also taken by the plaintiffs to the Secretary of the Treasury; and the transcript shows that the secretary, on the 9th of April in the same year, affirmed the decision of the collector and the liquidation of duties.

Apart from that, it also appears that the duties paid under protest amount to the sum of $173.36, and that the plaintiffs instituted the present suit in the Superior Court of the State to recover back the amount. Service was made; and, the defendant having appeared, the action was, on his motion, removed into the Circuit Court of the United States. Both parties appeared in the Circuit Court, and, having waived a jury, proceeded to trial before the circuit judge, without a jury. Judgment was rendered for the defendant, and the circuit judge made a special finding of facts. Certain exceptions were filed by the plaintiffs, and they sued out the present writ of error.

Two errors were assigned by the plaintiffs, as follows: (1.) That the court below erred in finding and deciding that the articles described in the entry were wrought-iron tubes, within the meaning of the amendatory tariff act, and that they were subject to the duty imposed of three and a half cents per pound. (2.) That the court below erred in refusing to find and decide that the articles imported were wrought-iron flues as claimed by the plaintiffs, and that they were only subject to a duty of two cents and a half per pound.

Whether the articles are wrought-iron tubes, as insisted by the United States, or are wrought-iron flues, as contended by the plaintiffs, was certainly a question of fact dependent upon the evidence; and, if so, it must be that it was a question to be decided by the court, inasmuch as the parties had waived a jury. Issues of fact pending in the circuit courts may be tried and determined by the court, without the intervention of a jury, whenever the parties or their attorneys file a stipulation in writing with the clerk of the court waiving a jury. Such a submission necessarily implies that the facts shall be found by the court; and the act of Congress provides that the finding may be general or special, and that it shall have the same affect as the verdict of a jury in a case where no such waiver is made.

Exceptions may be taken to the rulings of the court made in the progress of the trial, and, if duly taken at the time, the rulings may be reviewed here, provided the questions are properly presented by a bill of exceptions. Where a jury is waived, and the issues of fact are submitted to the court, the finding of the court may be either general or special, as in cases where the issues of fact are tried by a jury; but, where the finding is general, the parties are concluded by the determination of the court, subject to the right to bring error to review any rulings of the court to which due exception was taken during the trial.

Whether the finding is general or special, the rulings of the court during the progress of the trial, if duly excepted to at the time and presented by a bill of exceptions, may be reviewed in this court; and, in a case where the finding is special, the review, even without a bill of exceptions, may extend to the question, whether the facts found are sufficient to support the judgment. Miller v. ''Ins. Co.'', 12 Wall. 295.

Tested by the preceding rules of decision, which are undeniably correct, it is clear that there are but two questions open to review in the case before the court: first, whether the court ruled correctly in admitting evidence as to the name by which the article in question had been impoted and sold in this country; second, whether the facts found by the court are sufficient to support the judgment.

1. Expert witnesses were examined on both sides, and the defendant inquired of a manufacturer and an experienced iron merchant as follows: 'By what name has this article been imported, and sold in this country?' to which the plaintiffs objected. But the court overruled the objection, and the witness answered: 'It has always been imported and sold as an iron boiler-tube by every importer in the country;' and the transcript shows that the exception of the plaintiffs was duly noted at the time.

Authorities which support the ruling of the court are very numerous, and quite as decisive as they are numerous. Tariff laws are passed to raise revenue; and, for that purpose, substances are classed according to the general usage and known denominations of trade. Whether a particular article is designated by one name or another in the country of its origin, or whether it is a simple or mixed substance, is a matter of very little importance in the adjustment of our revenue laws, as those who frame such laws are chiefly governed by the appellations which the articles bear in our own markets and in our domestic and foreign trade. United States v. Smith, 9 Wheat. 438.

Laws regulating the payment of duties are for practical application to commercial operations, and are to be understood in a commercial sense; and this court, sixty years ago, decided that Congress intended that they should be so administered and understood. United States v. Goodale, 8 Pet. 279. Such laws, say this court, are intended for practical use and application by men engaged in commerce; and hence it has become a settled rule, in the interpretation of statutes of the description, to construe the language adopted by the legislature, and particularly in the denomination of articles, according to the commercial understanding of the terms used. Elliott v. Swartwout, 10 Pet. 151.

Congress must be understood, says Taney, C. J., as describing the article upon which the duty is imposed, according to the commercial understanding of the terms used in the law, in our own markets; and the court held in that case that Congress, in imposing the duty, must be considered as describing the article according to the commercial understanding of the terms used in the act of Congress when the law was passed imposing the duty. Curtis v. Martin, 3 How. 109.

Suffice it to say, without multiplying authorities, that the rule of law is settled, that the question, whether an imported article is or is not known in commerce by the word or terms used in the act imposing the duty, is a question of fact for the jury, and not a question of construction; and of course it must, in a case like the present, be determined by the court as a question of fact, the issues of fact, as well as of law, being submitted to the court. Lawrence v. Allen, 7 How. 797 Special findings under such a submission are no more subject to review here than general findings, as the provision in respect to both is that the finding of the court shall have the same effect as the verdict of a jury. Appellate courts have no more power to review the verdict of a jury where it is special than if it be general; but they may inquire and determine whether the special verdict is the proper basis of a judgment; and the act of Congress provides that the review, if the finding is special, may extend to the determination of the sufficiency of the facts found to support the judgment.

Matters of fact in such cases are not reviewable here under any circumstances, as appears by all the cases decided by this court, since the act was passed allowing parties to waive a jury, and to submit the law and fact to the determination of the Circuit Court. Consequently, it is irregular to report the evidence in the transcript, except so far as it may be necessary to explain the legal questions reserved, as to the rulings of the court in the progress of the trial; nor is either party entitled to a bill of exceptions as to any special finding of the court, for the plain reason that the special findings of the Circuit Court in such a case are not the proper subject of exceptions nor of review in this court.

2. Suppose that is so: then it follows that nothing remains to be considered in the case except the question, whether the facts are sufficient to support the judgment.

Facts found by the Circuit Court not being reviewable here, it will be sufficient to refer to a few brief sentences in the findings of the court, exhibited in the transcript, as follows: That the goods imported were, at the time of the passage of the tariff act, 'known in commerce, and to dealers therein, as and by the name of wrought-iron tubes,' and that the same were, and had been, at all times, imported by that name; and that 'the same continued to be so known, designated, imported, and dealt in, to and including the time' of the enactment of the amendatory tariff act, and a long time thereafter. . . . 'That wrought-iron tubes are constructed for various purposes, and are sometimes welded by joining the edges of the sheet-iron curved for that purpose, and sometimes by lapping the edges and welding them thus lapped.' Tubes joined in the former mode are called 'but-welded wrought-iron tubes.' When joined in the latter mode, 'they are called lap-welded wrought-iron tubes;' and it appears that for uses as flues lap-welded tubes are alone suitable, and are understood to be 'intended whenever wrought-iron tubes are designated as wrought-iron flues;' that wrought-iron flues is a subordinate designation used to indicate the purpose for which the tubes are to be employed, when ordered for such specific purpose; but that 'they are included in the general designation of wrought-iron tubes,' by which name alone, whether but-welded or lap-welded, they were known until after the passage of the amendatory tariff act.

Tubes lap-welded, it seems, when wanted for the described special purpose, are sometimes designated as flues; but the court finds that 'the goods imported were wrought-iron tubes, within the true intent and meaning of the tariff act' in operation at the time of their importation; that the goods were properly classified and designated as such by the collector; and that they were subject to the duty of three cents and a half per pound, as adjudged by the proper officers of the customs.

Exceptions were filed by the plaintiffs to the finding, upon the ground that it is not warranted by the evidence; but sufficient has already been remarked to show that the findings of the Circuit Court, under such a submission, are not the subject of exceptions nor of review in this court, when the cause is removed here by a writ of error.

Findings of the kind required may be general or special; but, if special, the finding must not be a mere report of the evidence, leaving the conclusions of fact to be adjudged by the appellate tribunal, as that course is forbidden by the repeated decisions of this court. Instead of that, the requirement is that the Circuit Court shall state the ultimate facts, or the propositions of fact, which the evidence establishes, and not the evidence from which those ultimate facts, or propositions of fact, are derived. Such findings are intended by Congress as a proper substitute for the special verdict of a jury; and it is settled law, that it is of the very essence of a special verdict that the jury shall find the facts on which the court is to pronounce the judgment, according to law; that, in order to enable the Appellate Court to act upon a special verdict, the jury must find the facts, and not merely state the evidence of facts; and the rule is, that when the jury states the evidence merely, without stating the conclusions of the jury, a court of error cannot act upon matters so found. Norris v. Jackson, 9 Wall. 127; Suydam v. Williamson, 20 How. 432.

Apply these principles to the case, and it is clear that the findings are sufficient and conclusive, and that there is nothing in the bill of exceptions or the reported evidence which can benefit the plaintiffs.

Judgment affirmed.

title: Tyng v. Grinnell/Opinion of the Court


text: Talk:Tyng v. Grinnell/Opinion of the Court


text:
Miller v. Dale

ERROR to the Supreme Court of the State of California.

Mr. S. O. Houghton for the plaintiffs in error.

Mr. Jeremiah S. Black, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Miller v. Dale


text: Talk:Miller v. Dale

title: Talk:Miller v. Dale


text:
Miller v. Dale/Opinion of the Court

This is an action of ejectment for the possession of certain real property situated in the county of Santa Clara, in the State of California. The plaintiffs assert title to the premises under a concession of the former government, confirmed by the tribunals of the United States, and an approved survey under the act of Congress of June 14, 1860 (12 Stat. 34, sect. 5). That act gives to an approved survey upon a confirmed claim the effect and validity of a patent. Some question is made, whether this effect can be given to a survey approved, like the one here, since the repeal of the act, notwithstanding the reservation of jurisdiction in pending cases by the repealing clause. We do not deem it material to determine the question, and, for the purposes of this case, shall consider that the plaintiffs stand before the court upon a title as fully established as if supported by a patent. The confirmation under which they claim was made by the District Court of the United States in January, 1859; and the survey was approved by that court in June, 1865, and, on appeal, by the Circuit Court in September, 1866.

The defendants assert title to the premises under a patent issued upon a concession of the Mexican government, confirmed by the tribunals of the United States; the confirmation dating in March, 1857, and the patent being issued in January, 1859. The aproved survey of the plaintiffs and the patent of the defendants both include the land in controversy. The question, therefore, for consideration, is, which of the two titles gave the better right to the premises. To answer this question, we must look into the character of the original concessions; and, if they furnish no guide to a just conclusion, we must seek a solution in the proceedings had before our tribunals and officers by which the claims of the parties were determined.

Looking at the original concessions, we find that they were mere licenses to settle upon and occupy vacant lands of the former government, without designation as to locality, except in the most vague and general way. It appears that one Mariano Castro, through whom the plaintiffs trace their title, had, as early as 1802, obtained permission from the Viceroy of Mexico to settle upon a tract of land within the jurisdiction of Monterey, known as La Brea; but, objection to his settlement there being made by the priests of the adjoining mission, he was directed to select another tract. He accordingly solicited of the military commander of the district the tract called El Carneadero, alleged to be the same tract since known as Las Animas: but whether any action was ever taken by the public authorities upon his petition, further than to hear objections also made by the priests to his settlement there, we are not informed; and the archives of the department, searched by direction of the governor, disclose nothing on the subject. After Castro's death, his widow, in 1833, in a petition to the governor, represented that her husband had taken possession of the tract, Law Animas, in 1806, under a concession from the governor, but that she had not the title-papers, and asked that a title be issued to her. In 1835 her attorney renewed the application, affirming that the land had been granted to her husband, but that the title-papers had been destroyed by fire. Upon receipt of this petition, the governor ordered a search among the archives of the department for a record of the alleged concession; but, as already stated, none was found. In consideration, however, of the evidence which they afforded of the right to the tract under the name of La Brea, obtained by the deceased from the vice-royal government in 1802, the governor directed that a certificate or testimonial of the record in the case (expediente) be issued for the protection of the parties interested; and, as the boundaries had not been expressly defined within which they must confine themselves, he added that those set forth in the plat accompanying the petition of the attorney should in future be regarded as such, with a reservation, however, of the rights of any third party who might feel aggrieved by the proceeding. This certificate or testimonial, issued in 1835, with the documents upon which it was founded, constituted the record evidence of the concession upon which the confirmation and survey were had under which the plaintiffs claim.

Previous to the issue of this document, and in 1831, another person by the same name, Mariano Castro, under whom the defendants claim, had obtained from the governor of California a license to occupy for cultivation a tract of land called El Solis. Under this license he went into possession of vacant land, and remained in possession until the cession of the country to the United States. His widow and children obtained the decree of confirmation and patent.

Neither of the concessions transferred the title, or conferred upon the grantees any interest in the land occupied by them other than a right of possession during the pleasure of the government. Their possession under these licenses did not raise even an equity in their favor against the United States. Serrano v. United States, 5 Wall. 461. In this condition of the property, the party who first obtained a confirmation of his claim, and its definite location by an approved survey, took the title to the land embraced by the survey.

But, independent of this position, if we could regard the original concessions-the one issued to the first Castro in 1802, and the one issued to the second Castro in 1831-as ordinary grants of the governor of the department, and, as such, passing a title, though of an imperfect character, to the grantees, the same result would follow; for they could then be treated only as floating grants. Neither of them gave any definite boundaries to the tract referred to by the general designation of place, and neither specified any quantity: that was only a matter of inference from subsequent documents. And equal vagueness as to the location and extent of the land solicited characterized the petitions of the parties. That of the first Castro only stated that La Brea was situated within the jurisdiction of Monterey, and distant three or four leagues from any mission or pueblo. The term appears to have been applied to a large region of country in that district. The petition of the second Castro only described El Solis, the tract which he desired, as a place within the jurisdiction of the same military post. Under these circumstances, the concessions being without specific boundaries by which the quantity embraced, when ascertained, could be identified, the only rule which the court can follow in actions at law is to consider the one first located by an approved survey as having appropriated the land covered by the survey. This rule was substantially recognized in one of the earliest cases which came before this court for consideration,-the Fremont Case, reported in the 17th of Howard. The grant to Alvarado, under which Fremont claimed, was for ten leagues within exterior boundaries embracing a much greater quantity; and while the court held, that, as between the government and the grantee, the grant passed to him a right to the quantity of land mentioned, to be laid off by official authority in the territory described, it said, that, if any other person within those limits had afterwards obtained a grant from the government by specific boundaries before Alvarado had made his survey, the title of the latter grantee could not be impaired by any subsequent survey of Alvarado. 'As between the individual claimants from the government,' the court added, 'the title of the party who had obtained a grant for the specific land would be the superior and better one; for, by the general grant to Alvarado, the government did not bind itself to make no other grant within the territory described until after he had made his survey.' Referring to this language in the recent case of Henshaw v. Bissell, 18 Wall. 267, we observed that 'a second floating grant, the claim under which is first surveyed and patented, and thus severed from the public domain, would seem to stand, with reference to an earlier floating grant within the same general limits, in the position which the subsequent grant with specific boundaries mentioned in the citation would have stood to the general grant to Alvarado.'

Upon this rule the land department of our government constantly acts with reference to floating warrants issued under the legislation of Congress to soldiers and others. The warrant first located takes the land, though it bear date only of yesterday. The date of the warrant is of no moment. So with Mexican floating grants, except that they are usually confined within certain general limits: the one first located takes the land. Here the survey of the defendants was made and approved in 1858, several years before the approval of the survey under which the plaintiffs claim.

It is contended with much earnestness, that the fact that the survey of the plaintiffs received the approval of the district and circuit courts of the United States gave it conclusive efficacy upon the title, and determined that it was superior to that of the defendants. This position is based upon a misconception of the object of subjecting surveys of confirmed claims under Mexican concessions to the consideration of the court. It was not to settle the question of title: so important a matter affecting the rights of parties as that would hardly have been left to proceedings of a summary character. The object of the proceeding was to insure conformity of the survey with the decree upon which it was made. If the decree gave specific boundaries, the court was to see that the survey followed them: if the decree was for quantity, the court was to see that the survey did not embrace a greater quantity; that the land was taken in a compact form, or if the grantee had himself exercised a right of selection, and had settled upon and improved particular parcels, or sold parcels to others, that the survey, if practicable, included such parcels, and also that it was made with proper regard to the rights of others who had settled upon the land, especially when they had been induced to make improvements by the grantee himself. Originally surveys were left entirely to the action of the local surveyor and the land department. Great complaints were sometimes made that surveys thus established were unjustly extended in directions so as to include the settlements and improvements of others; and contests over them were, in consequence, often prolonged for years. To prevent possible abuses in this way, the act of Congress of June 14, 1860, was passed, allowing surveys, when objection was made to their correctness, to be brought before the court and subjected to examination, and requiring them to be corrected if found to vary from that specific directions of the decrees upon which they were founded; or, if the decrees contained no specific directions, from the general rules governing in such cases. The approval of the court established the fact, that the survey was in conformity with the decree of confirmation; or, if the decree was for quantity only, that the survey was authorized by it; and in either case the approval rendered the survey conclusive as to the location of the land against all floating grants not previously located. The questions then left for controversy before the courts related to the title of the property, the parties proceeding upon the established conformity of their respective surveys with the decrees upon which they were founded.

The case of Henshaw v. Bissell, upon which counsel seem to rely, does not militate against the views here stated. The question there was not as to which of two floating grants carried the premises. Only one of the grants there under consideration was floating. The other grant had specific boundaries, or such descriptive features as to render its limits easily ascertainable; and the court held that the right of the grantee to the land thus designated could not be interfered with by the donee of the floating grant. A grant of that specific description necessarily carried the land described, unless appropriated by an earlier grant; and no subsequent location of a floating grant upon the premises could impair the title.

It is urged that the testimonial issued in 1835, although intended primarily as evidence of the proceedings taken in 1802, and of the license granted by the Viceroy of Mexico, established the boundaries of the settlement of the first Castro; so that, from that time, the license ceased to be a general and floating one, and became a license to occupy a specific tract. Admitting this view of the effect of the testimonial to be correct, the answer is obvious,-the title of the grantee or licensee was not changed by a limitation of his right of occupation to a specific tract; and the designation of the boundaries reserved the rights of any third party, which were to be left uninjured, that is, not encroached upon. The second Castro was then in possession of a portion of the tract within those boundaries; his right being of the same character,-that of occupancy by permission of the government. The decree confirming his claim, and the survey following it, approved by the land department, are conclusive as to the extent of his possession. The plaintiff shows no better claim to the premises thus possessed by producing a testimonial establishing the boundaries of his settlement, which at the same time provided that existing rights of others should remain unaffected by the proceeding.

It was suggested on the argument that the decree confirming the concession of the El Solis rancho was obtained upon an erroneous and fraudulent translation of certain documents introduced into the case, which, if correctly translated, would have defeated the claim by showing that the concession was denied instead of being made by the Mexican government. If this be so, the plaintiffs can proceed in equity, where the land has not passed to bona fide purchasers without notice, to remove the obstacle to the operation of their title arising from the defendants' patent, or to compel the patentees to hold the land in trust for their benefit, or in some other appropriate way. But, in this action of ejectment, the plaintiffs must rely upon their legal title; and that arising subsequent to the title of the defendants they cannot recover.

Judgment affirmed.

title: Miller v. Dale/Opinion of the Court


text: Talk:Miller v. Dale/Opinion of the Court


text:
Kennard v. Louisiana ex rel. Morgan

ERROR to the Supreme Court of the State of Louisiana.

On the 3d of December, 1872, John H. Kennard was, during a recess of the senate of Louisiana, appointed by the governor associate justice of the Supreme Court of Louisiana, in place of W. W. Howe, resigned.

On the 4th of January, 1873, the acting governor commissioned P. H. Morgan associate justice of the Supreme Court, in place of W. W. Howe, resigned. Kennard claimed to hold until the expiration of the next regular session of the legislature.

To settle the disputed title to the office, suit was brought. The courts of Louisiana, proceeding under an act of the legislature of Jan. 15, 1873, determined in favor of Morgan.

The case was then brought here upon the ground that the State of Louisiana acting under this law, through her judiciary, had deprived Kennard of his office without due process of law, in violation of that provision of the Fourteenth Amendment of the Constitution of the United States which prohibits any State from depriving any person of life, liberty, or property, 'without due process of law.' The provisions of the law are set forth in the opinion of the court.

Mr. Thomas J. Semmes, Mr. Robert Mott, and Mr. N. P. Chipman, for the plaintiff in error.

Mr. Thomas J. Durant, contra.

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

title: Kennard v. Louisiana ex rel. Morgan


text: Talk:Kennard v. Louisiana ex rel. Morgan


text:
Kennard v. Louisiana ex rel. Morgan/Opinion of the Court

The sole question presented for our consideration in this case, as stated by the counsel for the plaintiff in error, is, whether the State of Louisiana, acting under the statute of Jan. 15, 1873, through her judiciary, has deprived Kennard of his office without due process of law. It is substantially admitted by counsel in the argument that such is not the case, if it has been done 'in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights.' We accept this as a sufficient definition of the term 'due process of law,' for the purposes of the present case. The question before us is, not whether the courts below, having jurisdiction of the case and the parties, have followed the law, but whether the law, if followed, would have furnished Kennard the protection guaranteed by the Constitution. Irregularities and mere errors in the proceedings can only be corrected in the State courts. Our authority does not extend beyond an examination of the power of the courts below to proceed at all.

This makes it necessary for us to examine the law under which the proceedings were had, and determine its effect.

It was entitled 'An Act to regulate proceedings in contestations between persons claiming a judicial office.' Sect. 1 provided, that 'in any case in which a person may have been appointed to the office of judge of any court in this State, and shall have been confirmed by the senate and commissioned thereto,. . . such commission shall be prima facie proof of the right of such person to immediately hold and exercise such office.'

It will thus be seen that the act relates specially to the judges of the courts of the State, and to the internal regulations of a State in respect to its own officers.

The second section then provides, 'that if any person, being an incumbent of such office, shall refuse to vacate the same, and turn the same over to the person so commissioned, such person so commissioned shall have the right to proceed by rule before the court of competent jurisdiction, to have himself declared to be entitled to such office, and to be inducted therein. Such rule shall be taken contradictorily with such incumbent, and shall be made returnable within twenty-four hours, and shall be tried immediately without jury, and by preference over all matter or causes depending in such court;. . . and the judgment thereon shall be signed the same day of rendition.'

There is here no provision for a technical 'citation,' so called; but there is, in effect, provision for a rule upon the incumbent to show cause why he refuses to surrender his office, and for service of this rule upon him. The incumbent was, therefore, to be formally called upon by a court of competent jurisdiction to give information to it, in an adversary proceeding against him, of the authority by which he assumed to perform the duties of one of the important offices of the State. He was to be told when and where he must make his answer. The law made it the duty of the court to require this return to be made within twenty-four hours, and it placed the burden of proof upon him. But it required that he should be called upon to present his case before the court could proceed to judgment. He had an opportunity to be heard before he could be condemned. This was 'process;' and, when served, it was sufficient to bring the incumbent into court, and to place him within its jurisdiction. In this case, it is evident from the record that the rule was made, and that it was in some form brought to the attention of Kennard; for on the return day he appeared. At first, instead of showing cause why he refused to vacate his office, he objected that he had not been properly cited to appear; but the court adjudged otherwise. He then made known his title to the office; in other words, he showed cause why he refused to vacate. This was, in effect, that he had been commissioned to hold the office till the end of the next session of the Senate, and that time had not arrived. Upon this he asked a trial by jury. This the court refused, and properly, because the law under which the proceedings were had provided in terms that there should be no such trial. He then went to trial. No delays were asked except such as were granted. Judgment was speedily rendered; but ample time and opportunity were given for deliberation. Due process of law does not necessarily imply delay; and it is certainly no improper interference with the rights of the parties to give such cases as this precedence over the other business in the courts.

The next section provides for an appeal. True, it must be taken within one day after the rendition of the judgment, and is made returnable to the Supreme Court within two days. The proceeding on appeal was given preference over all other business in the Appellate Court, and the judgment upon the appeal was made final after the expiration of one day. Kennard availed himself of this right. He took his appeal, and was heard. The court considered the case, and gave its judgment.

From this it appears that ample provision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court, and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defence; for the deliberation and judgment of the court; for an appeal from this judgment to the highest court of the State, and for hearing and judgment there. A mere statement of the facts carries with it a complete answer to all the constitutional objection urged against the validity of the act. The remedy provided was certainly speedy; but it could only be enforced by means of orderly proceedings in a court of competent jurisdiction in accordance with rules and forms established for the protection of the rights of the parties. In this particular case, the party complaining not only had the right to be heard, but he was in fact heard, both in the court in which the proceedings were originally instituted, and, upon his appeal, in the highest court of the State.

Judgment affirmed.


text: Talk:Kennard v. Louisiana ex rel. Morgan/Opinion of the Court


text:
Town of Coloma v. Eaves

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

Assumpsit brought by the plaintiff below to recover the amount due on the coupons attached to certain bonds, purporting to have been issued by the town of Coloma, through its proper officers, to the Chicago and Rock River Railroad Company, in payment of a subscription of $50,000 by the town to said company. The form of the bond is as follows:--

'UNITED STATES OF AMERICA.

[$1,000.

'COUNTY OF WHITESIDE,

'State of Illinois, Town of Coloma:--

'Know all men by these presents, That the township of Coloma, in the county of Whiteside, and State of Illinois, acknowledges itself to own and be indebted to the Chicago and Rock River Railroad Company, or bearer, in the sum of $1,000, lawful money of the United States; which sum the said town of Coloma promises to pay to the Chicago and Rock River Railroad Company, or the bearer hereof, on the first day of July, 1881, at the office of the treasurer of the county of Whiteside aforesaid, in the State of Illinois, on the presentation of this bond, with interest thereon from the first day of January, 1872, at the rate of ten per centum per annum, payable annually at the office of the treasurer of the county of Whiteside aforesaid, on the presentation and surrender or the annexed coupons.

'[U.S. $5 revenue-stamp.]

'This bond is issued under and by virtue of a law of the State of Illinois entitled 'An Act to incorporate the Chicago and Rock River Railroad Company,' approved March 24, 1869, and in accordance with a vote of the electors of said township of Coloma, at a regular election held July 28, 1869, in accordance with said law, and under a law of the State of Illinois entitled 'An Act to fund and provide for the paying of the railroad debts of counties, townships, cities, and towns,' in force April 16, 1869; and, when this bond is registered in the State auditor's office of the State of Illinois, the principal and interest will be paid by the State treasurer, as provided by said last-mentioned law.

'In witness whereof, the supervisor and town-clerk of said town have hereunto set their hands and seals this first day of January, A.D. 1872.

'(Signed) M. R. ADAMS, Supervisor. [SEAL.]

'(Signed) J. D. DAVIS, Town-Clerk. [SEAL.]'

Recovery was resisted by the town, mainly upon the alleged ground of a want of power in the officers of the town to issue the bonds, because the legal voters of the town had not been notified to vote upon the question of the town's making the subscription in question.

On the trial of the case, judgment was rendered for the plaintiff for the amount of the coupons, and interest after they were due.

Mr. C. M. Osborn for plaintiff.

Mr. J. Grant, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Town of Coloma v. Eaves


text: Talk:Town of Coloma v. Eaves

title: Talk:Town of Coloma v. Eaves


text:
Town of Coloma v. Eaves/Opinion of the Court

It appears by the record that the plaintiff is a bona fide holder and owner of the coupons upon which the suit is founded, having obtained them before they were due, and for a valuable consideration paid. The bonds to which the coupons were attached were given in payment of a subscription of $50,000 to the capital stock of the Chicago and Rock River Railroad Company, for which the town received in return certificates of five hundred shares, of $100 each, in the stock of the company. That stock the town retains, but it resists the payment of the bonds, and of the coupons attached to them, alleging that they were issued without lawful authority.

Saying nothing at present of the dishonesty of such a defence while the consideration for which the bonds were given is retained, we come at once to the question, whether authority was shown for the stock subscription, and for the consequent issue of the bonds. At the outset, it is to be observed that the question is not between the town and its own agents: it is rather between the town and a person claiming through the action of its agents. The rights of the town as against its agents may be very different from its rights as against parties who have honestly dealt with its agents as such, on the faith of their apparent authority.

By an act of the legislature of Illinois, the Chicago and Rock River Railroad Company was incorporated with power to build and operate a railroad from Rock Falls on Rock River to Chicago, a distance of about one hundred and thirty miles. The tenth section of the act enacted, that, 'to aid in the construction of said road, any incorporated city, town, or township, organized under the township organization laws of the State, along or near the route of said road, might subscribe to the capital stock of said company.' That the town of Coloma was one of the municipal divisions empowered by this section to subscribe fully appears, and also that the railroad was built into the town before the bonds were issued. But it is upon the eleventh section of the act that the defendant relies. That section is as follows:--

'No such subscription shall be made until the question has been submitted to the legal voters of said city, town, or township, in which the subscription is proposed to be made. And the clerk of such city, town, or township, is hereby required, upon presentation of a petition signed by at least ten citizens who are legal voters and tax-payers in such city, town, or township, stating the amount proposed to be subscribed, to post up notices in three public places in each town or township; which notices shall be posted not less than thirty days prior to holding such election, notifying the legal voters of such town or township to meet at the usual places of holding elections in such town or township, for the purpose of voting for or against such subscriptions. If it shall appear that a majority of all the legal voters of such city, town, or township, voting at such election, have voted 'for subscription,' it shall be the duty of the president of the board of trustees, or other executive officer of such town, and of the supervisor in townships, to subscribe to the capital stock of said railroad company, in the name of such city, town, or township, the amount so voted to be subscribed, and to receive from such company the proper certificates therefor. He shall also execute to said company, in the name of such city, town, or township, bonds bearing interest at ten per cent per annum, which bonds shall run for a term of not more than twenty years, and the interest on the same shall be made payable annually; and which said bonds shall be signed by such president or supervisor or other executive officer, and be attested by the clerk of the city, town, or township, in whose name the bonds are issued.'

Sect. 12 provides, 'It shall be the duty of the clerk of any such city, town, or township, in which a vote shall be given in favor of subscriptions, within ten days thereafter, to transmit to the county-clerk of their counties a transcript or statement of the vote given, and the amount so voted to be subscribed, and the rate of interest to be paid.'

Most of these provisions are merely directory. But conceding, as we do, that the authority to make the subscription was, by the eleventy section of the act, made dependent upon the result of the submission of the question, whether the town would subscribe, to a popular vote of the township, and upon the approval of the subscription by a majority of the legal voters of the town voting at the election, a preliminary inquiry must be, How is it to be ascertained whether the directions have been followed? whether there has been any popular vote, or whether a majority of the legal voters present at the election did, in fact, vote in favor of a subscription? Is the ascertainment of these things to be before the subscription is made, and before the bonds are issued? or must it be after the bonds have been sold, and be renewed every time a claim is made for the payment of a bond or a coupon? The latter appears to us inconsistent with any reasonable construction of the statute. Its avowed purpose was to aid the building of the railroad by placing in the hands of the railroad company the bonds of assenting municipalities. These bonds were intended for sale; and its was rationally to be expected that they would be put upon distant markets. It must have been considered, that, the higher the price obtained for them, the more advantageous would it be for the company, and for the cities and towns which gave the bonds in exchange for capital stock. Every thing that tended to depress the market-value was adverse to the object the legislature had in view. It could not have been overlooked that their market-value would be disastrously affected if the distant purchasers were under obligation to inquire before their purchase, or whenever they demanded payment of principal or interest, whether certain contingencies of fact had happened before the bonds were issued,-contingencies the happening of which it would be almost impossible for them in many cases to ascertain with certainty. Imposing such an obligation upon the purchasers would tend to defeat the primary purpose the legislature had in view; namely, aid in the construction of the road. Such an interpretation ought not to be given to the statute, if it can reasonably be avoided; and we think it may be avoided.

At some time or other, it is to be ascertained whether the directions of the act have been followed; whether there was any popular vote; or whether a majority of the legal voters present at the election did, in fact, vote in favor of the subscription. The duty of ascertaining was plainly intended to be vested somewhere, and once for all; and the only persons spoken of who have any duties to perform respecting the election, and action consequent upon it, are the town-clerk and the supervisor or other executive officer of the city or town. It is a fair presumption, therefore, that the legislature intended that those officers, or one of them at least, should determine whether the requirements of the act prior to a subscription to the stock of a railroad company had been met. This presumption is strengthened by the provisions of the twelfth section, which make it the duty of the clerk to transmit to the county-clerk a transcript or statement, verified by his oath, of the vote given, with other particulars, in case a subscription has been voted. How is he to perform this duty if he is not to conduct the election, and to determine what the voters have decided? If, therefore, there could be any obligation resting on persons proposing to purchase the bonds purporting to be issued under such legislative authority, and in accordance with a popular vote, to inquire whether the provisions of the statute had been followed, or whether the conditions precedent to their lawful issue had been complied with, the inquiry must be addressed to the town-clerk or executive officer of the municipality,-to the very person whose duty it was to ascertain and decide what were the facts. The more the statute is examined, the more evident does this become. The eleventh section (quoted above) declared, that if it should appear that a majority of the legal voters of the city, town, or township, voting, had voted 'for subscription,' the executive officer and clerk should subscribe and execute bonds. 'If it should appear,' said the act. Appear when? Why, plainly, before the subscription was made and the bonds were executed; not afterwards. Appear to whom? In regard to this, there can be no doubt. Manifestly not to a court, after the bonds have been put on the market and sold, and when payment is called for, but if it shall appear to the persons whose province it was made to ascertain what had been done preparatory to their own action, and whose duty it was to issue the bonds if the vote appeared to them to justify such action under the law. These persons were the supervisor and town-clerk. Their right to issue the bonds was made dependent upon the appearance to them of the performance of the conditions precedent. It certainly devolved upon some person or persons to decide this preliminary question; and there can be no doubt who was intended by the law to be the arbiter. In Commissioners v. Nichols, 14 Ohio St. 260, it was said that 'a statute, in providing that county bonds should not be delivered by the commissioners until a sufficient sum had been provided by stock-subscriptions, or otherwise, to complete a certain railroad, and imposing upon them the duty of delivering the bonds when such provision had been made, without indicating any person or tribunal to determine that fact, necessarily delegates that power to the commissioners; and, if delivered improvidently, the bonds will not be invalidated.'

In the present case, the person or persons whose duty it was to determine whether the statutory requisites to a subscription and to an authorized issue of the bonds had been performed were those whose duty it was also to issue the bonds in the event of such performance. The statute required the supervisor or other executive officer not only to subscribe for the stock, but also, in conjunction with the clerk, to execute bonds to the railroad company in the name of the town for the amount of the subscription. The bonds were required to be signed by the supervisor or other executive officer, and to be attested by the clerk. They were so executed. The supervisor and the clerk signed them; and they were registered in the office of the auditor of the State, in accordance with an act, requiring that, precedent to their registration, the supervisor must certify under oath to the auditor that all the preliminary conditions to their issue required by the law had been complied with. On each bond the auditor certified the registry. It was only after this that they were issued. And the bonds themselves recite that they 'are issued under and by virtue of the act incorporating the railroad company,' approved March 24, 1869, 'and in accordance with the vote of the electors of said township of Coloma, at a regular election held July 28, 1869, in accordance with said law.' After all this, it is not an open question, as between a bona fide holder of the bonds and the township, whether all the prerequisites to their issue had been complied with. Apart from and beyond the reasonable presumption that the officers of the law, the township-officers, discharged their duty, the matter has passed into judgment. The persons appointed to decide whether the necessary prerequisites to their issue had been completed have decided, and certified their decision. They have declared the contingency to have happened, on the occurrence of which the authority to issue the bonds was complete. Their recitals are such a decision; and beyond those a bona fide purchaser is not bound to look for evidence of the existence of things in pais. He is bound to know the law conferring upon the municipality power to give the bonds on the happening of a contingency; but whether that has happened or not is a question of fact, the decision of which is by the law confided to others,-to those most competent to decide it, and which the purchaser is, in general, in no condition to decide for himself.

This we understand to be the settled doctrine of this court. Indeed, some of our decisions have gone farther. In the leading case of Knox v. Aspinwall, 21 How. 544, the decision was rested upon two grounds. One of them was that the mere issue of the bonds, containing a recital that they were issued under and in pursuance of the legislative act, was a sufficient basis for an assumption by the purchaser that the conditions on which the county (in that case) was authorized to issue them had been complied with; and it was said that the purchaser was not bound to look farther for evidence of such compliance, though the recital did not affirm it. This position was supported by reference to The Royal British Bank v. Torquand, 6 Ell. & Bl. 327, a case in the Exchequer Chamber, which fully sustains it, and the decision in which was concurred in by all the judges. This position taken in Knox v. Aspinwall has been more than once reaffirmed in this court. It was in Moran v. Miami County, 2 Black, 732; in Mercer County v. Hacket, 1 Wall. 83; in Supervisors v. Schenk, 5 id. 784; and in Mayor v. Muscatine, 1 id. 384. It has never been overruled; and, whatever doubts may have been suggested respecting its correctness to the full extent to which it has sometimes been announced, there should be no doubt of the entire correctness of the other rule asserted in Knox v. Aspinwall. That, we think, has been so firmly seated in reason and authority, that it cannot be shaken. What it is has been well stated in sect. 419 of Dillon on Munic. Corp. After a review of the decisions of this court, the author remarks, 'If, upon a true construction of the legislative enactment conferring the authority (viz., to issue municipal bonds upon certain conditions), the corporation, or certain officers, or a given body or tribunal, are invested with power to decide whether the condition precedent has been complied with, then it may well be that their determination of a matter in pais, which they are authorized to decide, will, in favor of the bondholder for value, bind the corporation.' This is a very cautious statement of the doctrine. It may be restated in a slightly different form. Where legislative authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal. In Bissell v. Jeffersonville, 24 How. 287, it appeared that the common council of the city were authorized by the legislature to subscribe for stock in a railroad company, and to issue bonds for the subscription, on the petition of three-fourths of the legal voters of the city. The council adopted a resolution to subscribe, reciting in the preamble that more than three-fourths of the legal voters had petitioned for it, and authorized the mayor and city-clerk to sign and deliver bonds for the sum subscribed. The bonds recited that they were issued by authority of the common council, and that three-fourths of the legal voters had petitioned for the same, as required by the charter. In a suit subsequently brought by an innocent holder for value to recover the amount of unpaid coupons for interest, it was held inadmissible for the defendants to show that three-fourths of the legal voters of the city had not signed the petition for the stock subscription. A similar ruling was made in Van Hostrop v. Madison City, 1 Wall. 291, and in Mercer County v. Hacket, id. 83.

The same principle has recently been asserted in this court after very grave consideration, and it must be considered as settled. In St. Joseph's Township v. Royers, 16 Wall. 644, it is stated thus:--

'Power to issue bonds to aid in the construction of a railroad is frequently conferred upon a municipality in a special manner, or subject to certain regulations, conditions, or qualifications; but if it appears by their recitals that the bonds were issued in conformity with these regulations, and pursuant to those conditions and qualifications, proof that any or all of these recitals were incorrect will not constitute a defence for the corporation in a suit on the bonds or coupons, if it appears that it was the sole province of the municipal officers who executed the bonds to decide whether or not there had been an antecedent compliance with the regulation, condition, or qualification, which it is alleged was not fulfilled.'

There is nothing in the case of Marsh v. Fulton, 10 Wall. 675, to which we have been referred, at all inconsistent with the rule thus asserted. In that case, there were no recitals in the bonds; and there was no decision that the conditions precedent to a subscription, or to the gift of authority to subscribe, had been performed. The question was, therefore, open.

What we have said disposes of the present case without the necessity of particular consideration of the matters urged in the argument of the defendant below. It was inadmissible to show what was attempted to be shown; and, even if it had been admissible, the effort to assimilate the case to Marsh v. Fulton would fail. There the subscription was for the stock of a different corporation from that for which the people had voted: here it was not.

Judgment affirmed.

MR. JUSTICE MILLER, MR. JUSTICE DAVIS, and MR. JUSTICE FIELD, dissented.


text: Talk:Town of Coloma v. Eaves/Opinion of the Court


text:
Town of Venice v. Murdock

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

This suit was brought upon certain bonds, each of which is as follows:--

'STATE OF NEW YORK, County of Cayuga:--

'Seven per cent loan, not exceeding $25,000.

'Be it known that the town of Venice, in the county of Cayuga, and State of New York, in pursuance of an act of the legislature of the said State, entitled 'An Act to authorize any town in the county of Cayuga to borrow money for aiding in the construction of a railroad or railroads from Lake Ontario to the New York and Erie or Cayuga and Susquehanna Railroad,' passed April 16, 1852, and for the purpose of aiding the construction of the Lake Ontario, Auburn, and New York Railroad, owes, and promises to pay, to _____ _____, or bearer, $1,000, with interest at the rate of seven per cent, payable semi-annually, on the first days of January and July in each year, on surrender of the coupons hereto attached, at the Bank of the State of New York, in the city of New York; the principal to be reimbursable at the same place at the expiration of twenty years from the first day of January, 1853.

'In testimony whereof, the supervisor and commissioners of the town of Venice have, pursuant to the provisions of the act aforesaid, and the written assent of two-thirds of the resident tax-payers of said town, obtained and filed in the office of the clerk of the county of Cayuga, hereunto subscribed their names, this second day of March, A. D. 1853.

'CALVIN KING, Supervisor.

JONAS WOOD,

ISAAC SMITH,

Commissioners.'

The following certificate was indorsed thereon:--

'CAYUGA COUNTY CLERK'S OFFICE.

'I, Edwin B. Marvine, clerk of the county of Cayuga, hereby certify that a paper purporting to be the written assent of two-thirds of the resident tax-payers of the town of Venice, with the affidavit required by sect. 1 of the act referred to by its title in the foregoing bond, has been filed in this office.

'Dated Auburn, May 16, 1853.

'(Signed) 'E. B. MARVINE,

'Clerk of Cayuga County.'

Mr. Warren T. Worden for the plaintiff in error.

Mr. David Wright, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Town of Venice v. Murdock


text: Talk:Town of Venice v. Murdock

title: Talk:Town of Venice v. Murdock


text:
Town of Venice v. Murdock/Opinion of the Court

It would be worse than useless for us to discuss separately each of the twenty-two assignments of error filed in this case for the questions involved that are of any importance are very few in number. The leading one is, whether sufficient authority was shown at the trial for the issue of the town-bonds. The act of the legislature empowered the supervisor and the railroad commissioners of the town to borrow money, and to execute bonds therefor to an amount not exceeding $25,000. It directed that all moneys borrowed under its authority should be paid over to the president and directors of such railroad company (then organized, or that might thereafter be organized, under the provisions of the general railroad law), as might be expressed by the written assent of two-thirds of the resident tax-payers of the town, to be expended by said president and directors in grading, constructing, and maintaining a railroad or railroads passing through the city of Auburn, and cennecting Lake Ontario with the Susquehanna and Cayuga Railroad, or the New York and Erie Railroad.

The act provided, however, that said supervisor and commissioners should have no power to do any of the acts authorized by the statute until a railroad company had been duly organized according to the requirements of the general railroad law, for the purpose of constructing a railroad between the termini above mentioned and through the town, and until the written assent of two-thirds of the resident persons taxed in said town, as appearing on the assessment-roll of such town made next previous to the time such money might be borrowed, should have been obtained by such supervisor and commissioners, or some one or more of them, and filed in the clerk's office of Cayuga County, together with the affidavit of such supervisor or commissioners, or any two of them, attached to such statement, to the effect that the persons whose written assents are thereto attached and filed as aforesaid comprised two-thirds of all the resident tax-payers of said town on its assessment-roll next previous thereto.

This act was passed on the sixteenth day of April, 1852; and, on the 23d of August next following, a railroad company was organized to construct a railroad through the town between the termini mentioned in the act. On the 3d of November, 1852, there was filed in the office of the county-clerk of Cayuga County a written assent that the supervisor and assessors of the town (the assessors being railroad commissioners) might borrow such sum of money as they might deem necessary, not exceeding $25,000, giving town-bonds therefor; and that the money might be paid to the railroad company organized to construct the railroad. Two hundred and fifty-nine names were signed to the assent, the persons signing representing themselves to be resident tax-payers of the town of Venice. Upon this instrument was indorsed the affidavit of the supervisor and one of the commissioners that the persons whose names were subscribed to the assent comprised two-thirds of all the resident tax-payers of the said town of Venice on its assessment-roll next previous to the date of the affidavits, namely, next previous to Oct. 30, 1852; and, on the 2d of March next following, the supervisor and the commissioners executed the bonds now in suit. Evidence of these facts was given at the trial; but the defendant objected to the admission in evidence of this assent, and of the bonds, on the ground that the plaintiff must first prove that the signatures to the assents were the genuine signatures of those persons whose names purported to be signed. The Circuit Court overruled this objection; and whether rightfully or not, is the primary and almost the only material question in the case.

It is very obvious that if the act of the legislature which authorized an issue of bonds in aid of the construction of the railroad, on the written assent of two-thirds of the resident tax-payers of the town, intended that the holder of the bonds should be under obligation to prove by parol evidence that each of the two hundred and fifty-nine names signed to the written assent was a genuine signature of the person who bore the name, the proffered aid to the railroad company was a delusion. No sane person would have bought a bond with such an obligation resting upon him whenever he called for payment of principal or interest. If such was the duty of the holder, it was always his duty. It could not be performed once for all. The bonds retained in the hands of the company would have been no help in the construction of the road. It was only because they could be sold that they were valuable. Only thus could they be applied to the construction. Yet it is not to be doubted that the legislature had in view, and intended to give, substantial aid to the railroad company, if a sufficient number of the tax-payers assented. They must have contemplated that the bonds would be offered for sale; and it is not to be believed that they intended to impose such a clog upon their salableness as would rest upon it if every person proposing to purchase was required to inquire of each one whose name appeared to the assent whether he had in fact signed it.

The act of the legislature manifests a contrary intent. It created a tribunal to determine whether two-thirds of the resident tax-payers had assented. That tribunal was the supervisor and the commissioners, empowered also to execute the bonds in case such an assent were given. They were the appointed agents to obtain the assent; and, when acquired, they, or any two of them, were to make an affidavit that the persons whose written assents were attached to the statement comprised two-thirds of the resident tax-payers. That statement, with the affidavits, was required to be filed in the county-clerk's office. All this indicates unmistakably that it was their appointed province to decide whether the condition precedent to the exercise of their authority to issue the bonds had been complied with. Commissioners v. Nichols, 14 Ohio, N. S. 260. They did decide the question before they issued the bonds. Their statement, verified by their affidavit, filed in the county-clerk's office, was a decision, and the recital in the bonds was a declaration of the decision. That such a decision concludes the town against denying that the condition precedent had been performed, that it relieves the holder of the bonds from the obligation to look beyond it, is too firmly settled in this court to admit of question. In Dillon on Municipal Corporations, sect. 418, the author, after reviewing the decisions, states this conclusion: 'If, upon a true construction of the legislative enactment conferring the authority, the corporation, or certain officers, or a given body or tribunal, are invested with power to decide whether the condition precedent has been complied with, then it may well be that their recital of their determination of a matter in pais, which they are authorized to decide, will, in favor of the bondholder for value, bind the corporation.' Here there was more than a recital. There was, in addition, proof of an actual decision, verified by oath. Without citing the numerous decisions which sustain this statement of the law, we refer only to St. Joseph Township v. Rogers, 16 Wall. 644, and Town of Coloma v. Eaves, supra, p. 484, decided at this term, which unequivocally assert it. And the rule has additional reason in its favor, where, as in the present case, the authority of the municipal officers to bind the municipality is made dependent upon a precedent condition of fact; and the fact is not of a nature to be ascertained by purchasers in the market, to whom it was contemplated the bonds might be sold. Dillon, in sect. 419, states this as another exception to the rule that an unauthorized representation by a municipal officer that he has power is not binding on the corporation. His language is, 'The only exception to this rule (the rule above stated),-to wit, where it is the sole province of the officers who issued the bonds to decide whether conditions precedent have been complied with,-is where both parties have not equal means of knowledge as to the extent and scope of their powers, and where the particular character of their commission and authority is, from its nature and circumstances, peculiarly known to the officer or agent; in which case the principal will, or may be, bound by the false representations of the agent respecting its authority and its extent and scope.' The present is exactly such a case. The town-officers had means of knowledge which the purchaser had not. They procured the signatures to the assent, and they knew whether or not they were genuine. They had knowledge, which, from the nature of the case, the purchaser could not have.

We are aware that in the State of New York it has been held adversely to the opinions we have expressed. It was so held in Starin v. The Town of Genoa, and in Gould v. The Town of Sterling, 23 N. Y. 439, 456. In the former case the court ruled, that under the act of April 16, 1852 (the same act which conferred powers conditionally upon the supervisors and commissioners of the town of Venice), the onus was on the bondholder to show, in a suit against the town, that two-thirds of the resident taxables had given their written assent to the creation of the bonds. In the latter case a similar decision was given when bonds had been issued under another act, much like the act of 1852, though differing in some material particulars. These decisions are in conflict with the rulings of this court in Bissell v. Jeffersonville, 24 How. 287; Knox County v. Aspinwall, 21 id. 539; Mercer County v. Hackett, 1 Wall. 83, and other cases which we have cited. They are in conflict also with decisions in other State courts. Society for Savings v. New London, 29 Conn. 174; Railroad Company v. Evansville, 15 Ind. 395; Comm'rs v. Nichols, 14 Ohio, N. S. 260. We have carefully considered the reasons given for the judgments in the New-York cases, without being convinced by them. They ignore the paramount purpose for which the bonds were authorized by the legislature, and they treat the written assent of the taxables as the authority to the township-officers, when, in fact, the power was given by the legislature, and it was only left to the town to determine by the action of two-thirds of the resident taxables whether the supervisors and commissioners might act under the power. In, Gould v. Sterling, the legislative act required no affidavit to be filed with a statement of the assenting tax-payers; and, in Starin v. Genoa, the affidavit filed was regarded as merely verifying that the persons whose names appeared on the assents comprised two-thirds of all the resident tax-payers. But it is obvious, that, if no more than this was meant by the required affidavit, it was wholly useless; for the assessment-rolls of the township would have shown as much.

The authority of Starin v. Genoa has not been increased by the subsequent action of the New-York courts. In The People v. Mead, 24 N. Y. 114, the ruling was followed; but Judge Denio, who only gave an opinion, claimed that the decision in Starin v. Genoa had been made on the ground that the bonds were not issued upon a loan, and that the plaintiff was not a bona fide holder. The People v. Mead came again before the Court of Appeals in 36 N. Y., p. 224, when Davis, J., said, 'We do not think it seemly to review and reverse the former judgment of this court in this action upon the same facts;' and Grover, J., said, 'But for the previous adjudication of this court, I should have held that the affidavit filed with the clerk of Cayuga County, pursuant to the second section of chap. 375 of the laws of 1852, was conclusive evidence of the assents of the tax-payers of the town, required by the act in favor of a bona fide holder of the bonds issued under its provisions.' But assuming that what was ruled in Gould v. Sterling, and in Starin v. Genoa, is still the doctrine of the New-York courts, we find ourselves unable to yield to it our assent. It is against the whole current of our decisions, as well as against the decisions made in other States; and we think it is not supported by the soundest reasons.

It is argued, however, that the New-York decisions are judicial constructions of a statute of that State; and, therefore, that they furnish a rule by which we must be guided. The argument would have force if the decisions, in fact, presented a clear case of statutory construction; but they do not. They are not attempts at interpretation. They would apply as well to the execution of powers or authorities granted by private persons as they do to the issue of bonds under the statute of April 16, 1852. They assert general principles,-to wit, that persons empowered to borrow money and give bonds therefor, for the purpose of paying it to an improvement company, are not authorized to deliver the bonds directly to the company; a doctrine denied in this court, in the Supreme Court of Pennsylvania, and even in the Court of Appeals of New York. People v. Mead, 24 N. Y. 124; The Town of Venice v. Woodruff et al., 62 id. 462. They assert, also, that, where an authority is given to an officer to execute and issue bonds (on the assent of two-thirds of the voters of a town, the assent to be obtained by the officer and filed in a public office, with an affidavit verifying the assent), the verification amounts to nothing, subserves no purpose, and that a bona fide holder of the bonds is bound to prove that the requisite number of voters did actually assent. They assert this as a general proposition. They do not assert that the statute so declares, or that such is even its implied requisition. There is, therefore, before us, no such case of the construction of a State statute by State courts as requires us to yield our own convictions of the right, and blindly follow the lead of others, eminent as we freely concede they are.

We have treated the case thus far on the assumption that the plaintiff below was a bona fide holder of the bonds which he put in suit. That he was such adundantly appears, and nothing that was offered at the trial tended in the slightest degree to show the contrary. Even the railroad company itself, when it took some of the bonds and gave its stock therefor, could have had no reason to suppose that every condition precedent to their issue had not been performed; and a subsequent purchaser, at any time prior to the time fixed for their final payment, must be regarded as a bona fide purchaser.

We have thus considered all the assignments of error that deserve particular notice, and all that were much pressed at the argument. The others are without the least merit. In our opinion, the law and the plainest dictates of justice demand an affirmance of this judgment.

Judgment affirmed.

MR. JUSTICE MILLER, MR. JUSTICE DAVIS, and MR. JUSTICE FIELD, dissented.

NOTE.-The cases of Town of Venice v. Woodruff et al., Same v. Watson, Same v. Edson, error to the Circuit Court of the United States for the Northern District of New York, were argued at the same time, by the same counsel, as Town of Venice v. Murdock.

MR. JUSTICE STRONG delivered the opinion of the court.

These cases are, in all essential particulars, like the case of Town of Venice v. Murdock, supra, p. 494; and the judgments are affirmed for the reason given in that case.

Judgment in each case affirmed.

MR. JUSTICE MILLER, MR. JUSTICE DAVIS, and MR. JUSTICE FIELD, dissented.


text: Talk:Town of Venice v. Murdock/Opinion of the Court


text:
Town of Genoa v. Woodruff

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

Mr. H. L. Comstock for the plaintiff in error.

Mr. David Wright, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Town of Genoa v. Woodruff


text: Talk:Town of Genoa v. Woodruff

title: Talk:Town of Genoa v. Woodruff


text:
Town of Genoa v. Woodruff/Opinion of the Court

Twenty-six errors have been assigned in this case, not one of which can be sustained. All which have the least plausibility have been considered and declared unfounded in Town of Venice v. Murdock, supra, p. 494; and the others might well be dismissed without special notice. The thirteenth complains that the circuit judge decided that the plaintiffs could recover interest upon the coupons from the time they fell due. That the ruling was correct is perfectly plain. It was in entire accordance with the decisions generally of the State courts and also of this court.

The other assignments have either been answered in Town of Venice v. Murdock, or they are totally without merit.

Judgment affirmed.

MR. JUSTICE MILLER, MR. JUSTICE DAVIS, and MR. JUSTICE FIELD, dissented.


text: Talk:Town of Genoa v. Woodruff/Opinion of the Court


text:
Converse v. City of Fort Scott

ERROR to the Circuit Court of the United States for the Northern District of Kansas.

This was an action to recover the interest on certain bonds issued by the city of Fort Scott, Kan. One of the bonds (all of which were similar) is as follows:--

'No. 1. UNITED STATES OF AMERICA. $1,000.

'STATE OF KANSAS,

'City of Fort Scott, in the county of Bourbon:--

'Issued under the laws of Kansas, and in pursuance of an ordinance of the city of Fort Scott, approved Dec. 22, 1870. $25,000 subscription to the Missouri, Kansas, and Texas Railway Company.

'Know all men by these presents, That the city of Fort Scott, county of Bourbon, in the State of Kansas, hereby, for value received, acknowledges itself indebted and firmly bound to pay to the Missouri, Kansas, and Texas Railway Company, or bearer, the sum of $1,000, lawful money of the United States of America, which sum of money the said city promises to pay on the first day of July, A.D. 1890, at the Fourth National Bank, in the city of New York, with interest thereon at the rate of seven per centum per annum, payable semi-annually at the office of said Fourth National Bank, in said city of New York, on the first day of January and July in each year, or presentation and surrender of the annexed coupons as they severally become due.

'The city, the maker hereof, reserves the right to pay this bond at its option at any time before maturity.

'In witness whereof, the said city of Fort Scott has caused this bond to be signed, sealed, and delivered on its behalf and for its benefit by its mayor, and countersigned by its clerk, duly and legally appointed and authorized in this respect.

'FORT SCOTT, KAN., July 1, 1870.

'B. P. McDONALD, Mayor. [SEAL.]

'T. A. CORBETT, City-Clerk.'

(Across the face in red ink) $1,000.

Each of said bonds, in order to distinguish it from others of like character, was numbered, and, pursuant to law, was duly registered in the office of the auditor of the State of Kansas. Attached to each bond was the following certificate of such anditing; to wit:--

'I, A. Thoman, auditor of the State of Kansas, do hereby certify that this bond has been regularly and legally issued; that the signatures thereto are genuine; and that such bond has been duly registered in my office in accordance with an act of the legislature, entitled 'An Act to authorize counties, incorporated cities, and municipal townships, to issue bonds for the purpose of building bridges, aiding in the construction of railroads or other works of internal improvement, and providing for the registration of such bonds, the registration of other bonds, and the repealing of all laws in conflict therewith,' approved March 2, 1872.

'Witness my hand and official seal, this seventh day of January, 1873.

'A. THOMAN, Auditor of State.'

Attached to each bond were coupons falling due on the first days of January and July, one of which is as follows:--

'$35.00.

STATE OF KANSAS.

'City of Fort Scott, in the county of Bourbon, will pay the bearer hereof thirty-five dollars, at the Fourth National Bank, in the city of New York, on the first day of July, 1872; being six months' interest on bond No. 1.

'T. A. CORBETT, City-Clerk.'

Mr. G. C. Yeaton for the plaintiff in error.

Mr. A. L. Williams, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Converse v. City of Fort Scott


text: Talk:Converse v. City of Fort Scott

title: Talk:Converse v. City of Fort Scott