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Haussknecht v. Claypool

Error to the Circuit Court of the United States for the southern district of Ohio.

Haussknecht brought trespass on the case against Claypool and Lynn in the year 1859, for an infringement of his patent for an improved running gear for carriages. The suit was commenced in the Circuit Court of the United States for the southern district of Ohio and the damages laid at $5,000. The defendants pleaded the general issue and brought divers witnesses to prove that the plaintiff was not the original inventor of the thing he had patented, but that it had been described in printed works, and was in actual public use at a time anterior to the date of his patent. The plaintiff himself was produced as a witness to sustain his own case. His counsel asserted that by the law of Ohio (sec. 310, Code of Civil Procedure) he was a competent witness in his own behalf. The defendants objected on the grounds: First, that he was a party to the cause, and, therefore, incompetent even by the laws of Ohio. Second, that no notice of his intention to testify had been given to the defendants or their attorney; and, third, that by a rule of the court, parties to suits were incompetent witnesses. These objections the court sustained, and the plaintiff's counsel took a bill of exceptions. Verdict for defendants. Writ of error to Supreme Court of the United States sued out by plaintiff.

Messrs. Lee and Fisher, of Ohio, for plaintiff in error. Section 310 of the Ohio Code of Civil Procedure reads thus: 'No person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime, but such interest or conviction may be shown for the purpose of affecting his credibility.' The 34th section of the judiciary act of 1789 provides, 'that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.' It would seem to require no proof to show that a rule of evidence was 'a rule of decision,' within the meaning of this act. But this court has expressly decided that question: McNiel vs. Holbrook, (12 Pet., 84.) 'The rules of evidence prescribed by the statute of a State are always followed by the courts of the United States when sitting in the State in commercial cases as well as in others.' Sims vs. Hundley, (6 How., 1.) But it may be said that there was a rule in the court below which disqualified this witness. It is only necessary to reply to this that the court below could not abrogate or overcome a statute of the State by a general rule, any better than by a decision. The rule and the ruling stand on the same footing. No notice that the plaintiff would testify as a witness was necessary in the court below. Section 313 of the Ohio code, which requires such notice, was repealed April 12th, 1858. See section 3d of the statute of Ohio, of said date, entitled 'An act to amend the 313th and 314th sections of the Code of Civil Procedure.'

It is objected that the bill of exceptions does not aver that the rejected evidence was material to the plaintiff's cause.

In Smith vs. Carrington, (4 Cranch, 62,) this court held, that if evidence were illegally admitted, the court could not inquire into its weight or importance, but would reverse the judgment; and we suppose the converse of this proposition is equally true, and if evidence be illegally rejected, this court will not inquire into its importance, but will reverse the judgment.

Mr. Lincoln, of Ohio, for defendant in error. It is true, as claimed on behalf of the plaintiff in error, 'that the laws of the several States, except where the Constitution, treaties, or statutes of the United States, shall otherwise require or provide, shall be regarded as rules of decision, in trials at common law in the courts of the United States, in cases where they apply.' And it is also true, that the Code of Civil Procedure of the State of Ohio provides, in its 310th section, that 'no person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise.' But the same code, in its 604th and 605th sections, enacts, that its provisions shall not affect 'any special statutory remedy,' and that 'where by statute a civil action, legal or equitable, is given, and the mode of proceeding therein is prescribed, this code shall not affect the proceedings under such statute, until the Legislature shall otherwise provide; but the parties may, if they see fit, proceed under this act, and in all such cases, as far as it may be consistent with the statute giving such action, and practicable under this code, the proceedings shall be conducted in conformity thereto.' And it is provided in the same code, section 106, 'that every pleading of fact must be verified by the affidavit of the party, his agent or attorney;' and in sections 83, 85, and 92, 'that the rules of pleading heretofore existing are abolished,' and that the pleadings shall contain 'a statement of the facts constituting the cause of action, (or the defence,) in ordinary and concise language.' Is an action for the infringement of rights secured by a patent, in which the pleadings are specifically regulated by the act of Congress, a case to which the provisions of the Ohio code necessarily apply?

It will be perceived that the provisions of the statute of Ohio, which makes the parties to the record competent witnesses, are by no means of universal application. The design of the new system of civil procedure was to abolish all distinctions between the pleadings in cases at law and in equity, and to simplify issues, by requiring the pleadings to be in ordinary language, and to be verified by oath, and to abbreviate trials by permitting the parties to testify. But it was not designed to apply the new rules of evidence to cases where the new system of pleading is inapplicable. The right of the court below, under its power 'to make and establish all necessary rules for the orderly conducting of business, provided such rules are not repugnant to the laws of the United States,' to prevent by rule the parties to the record from testifying, is very clear.

It would have been manifestly improper for the court below to have adopted the provision of the Ohio code changing the law of evidence in the 'civil action,' without at the same time adopting the modes of pleading established by the same code, by which each party, in advance of the trial, is advised of the nature of the testimony to be expected from the adverse party, by the verification, under oath, of the statement of his case, in ordinary and concise language. And the court, in establishing a rule which excludes such testimony from the jury, was equally within the bounds of the law, and within the rules of propriety.

But, at all events, the judgment in the present action cannot be reversed because of the exclusion of the plaintiff's evidence. The record discloses nothing more than that the plaintiff offered himself as a witness, that the court refused to permit him to testify, and that he excepted. It is not shown that his evidence, if admitted, would have been material; nor does it appear that the exception was taken at the time. And all presumptions are against the existence of error.

Mr. Justice NELSON.

title: Haussknecht v. Claypool


text: Talk:Haussknecht v. Claypool

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

title: Talk:Haussknecht v. Claypool


text:
Haussknecht v. Claypool/Opinion of the Court

This suit was brought by the plaintiff in error against the defendants for the infringement of a patent for an improvement in the running gear of carriages. The verdict and judgment were for the defendants.

The only question presented in the bill of exceptions is, whether or not the plaintiff was a competent witness to give testimony in his own behalf. According to the law of Ohio, parties are competent witnesses. The case falls within the opinion of the court just delivered in the case of Vance vs. Campbell and others. It is objected that the bill of exceptions does not state that the witness was material, and hence there could be no error in his exclusion. The bill of exceptions is brief, presenting only this single question, and stating no more of the case than is necessary to present it, which practice the court commends.

The bill states that on the trial the plaintiff, to sustain the issue on his part, offered himself as a witness, and his counsel claimed he was competent, & c. Though it would have been more in conformity with the usual practice to have stated that the witness was material to sustain the issue, we think that enough is stated to imply the materiality, and that this objection cannot be maintained.

Judgment reversed-venire de novo.


text: Talk:Haussknecht v. Claypool/Opinion of the Court


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Natural Resources Defense Council v. Train

Appeal from an order of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, on cross motions for summary judgment requiring the Administrator of the Environmental Protection Agency to place lead on a list of pollutants maintained under Section 108(a)(1) of the Clean Air Act as amended, 42 U.S.C. § 1857c-3(a)(1).

Affirmed.


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Jefferson Branch Bank v. Skelly

Writ of error to the Supreme Court of Ohio. The Jefferson branch of the State Bank of Ohio brought trespass in the Common Pleas of Jefferson county against Alexander Skelly, and charged in their declaration that the defendant took and carried away from the banking-house of the plaintiff, at Steubenville, a certain quantity of gold coin of the value of seven thousand dollars, and converted it to his own use. The defendant pleaded specially, in justification, that he was treasurer of Jefferson county, and, as such, required and authorized by law to collect the taxes assessed in the county of Jefferson; that taxes to the amount of $5,568 88.9-10 had been assessed upon, and were then due from, the plaintiff, which it was the duty and right of the defendant to distrain for; and that the supposed trespass consisted in making such lawful distraint. The plaintiff replied that it was a banking corporation, organized under an act of the State Legislature, entitled 'An act to incorporate the State Bank of Ohio and other banking corporations;' that, agreeably to the 60th section of said act, the plaintiff had always agreeably to the 60th section of said act, the plaintiff had always regularly and punctually paid to the properly authorized officers six per cent. of its profits; that the 60th section of the charter was a contract between the State and the plaintiff to assess or demand no other or greater taxes from the plaintiff than six per cent. on its profits; and that the taxes for which the defendant alleged that he had made the supposed distraint were assessed and demanded in pursuance of a law which was a violation of the said contract, and therefore void. The defendant rejoined, taking issue on the replication.

The question of law thus raised was, whether the State had a right to impose on the bank any taxes other than those which were stipulated for in the 60th section of the charter, the plaintiff asserting, and the defendant denying, that the section referred to was a contract which made any other or greater taxes illegal and unconstitutional. The verdict and judgment in the Common Pleas were in favor of the plaintiff for $6,292 80, with costs. The defendant appealed to the Circuit Court, where a verdict and judgment for the plaintiff were again rendered, but the judgment was arrested, and judgment finally given for the defendant. Thence the cause was taken, on the plaintiff's petition, to the Supreme Court of the State. The judges of the Supreme Court were of opinion that the said 60th section of the act of the General Assembly of Ohio of the 24th of February, 1845, entitled 'An act to incorporate the State Bank of Ohio and other banking companies,' under the provisions of which the said Jefferson branch was organized, is not a contract within the meaning, and entitled to the protection, of that clause of the Constitution of the United States which provides that 'no State shall pass any law impairing the obligation of contracts,' and that, consequently, the subsequent laws under which the increased taxes were assessed and levied were valid. The judgment of the Circuit Court was, therefore, affirmed, and thereupon the plaintiff took this writ of error from the Supreme Court of the United States.

Mr. Vinton, of Washington city, for plaintiff in error. In this case the Supreme Court of Ohio adjudged:

1st. That the 60th section of the charter of the State Bank of Ohio was not a contract between the State and the bank, within the meaning, and entitled to the protection, of that clause of the Constitution of the United States which declares that 'no State shall pass any law impairing the obligation of contracts.'

2d. That the act of the General Assembly of Ohio, of the 13th of April, 1852, under which the tax in question was assessed against the bank, was a valid law, and obligatory on the bank, anything in said 60th section of said bank charter to the contrary notwithstanding; and that, consequently, the tax assessed under said act was a valid tax, and the bank was bound to pay the same.

The identical question presented by this record has heretofore been twice before this court for decision, and twice decided, after very elaborate examination of the question by the court in each case.

The first in the order of time is the case of the Piqua Branch of the State Bank of Ohio vs. Knoop, (16 How., 369.)

In that case, a tax was assessed upon the property of the Piqua branch, under an act of the Legislature of Ohio, passed in the year 1851, which the State attempted to collect by suit.

This court then decided that the 60th section of the bank charter was a contract, and that the bank could not be otherwise taxed than in conformity to that contract, and that the act of 1851, which was in conflict with that contract, was invalid.

The other case was that of Dodge vs. Woolsey, (18 How., 331.) In that case a tax had been assessed on the Commercial Branch Bank of Cleveland, a branch of the State Bank of Ohio, under the tax act of the 13th of April, 1852, which is the same act under which the tax now in question was assessed. This court again went into an elaborate investigation of the question in that case, and again decided that the 60th section of the State Bank charter is a contract, and that the banks organized under it are subject to no other taxation, and that the act of 1852 impaired that contract, and was also invalid, so far as it was in contravention to that section of the bank charter.

If it should be contended by the defendant in error, as it was in the case of the Piqua Branch Bank vs. Knoop, and again in the case of Dodge vs. Woolsey, that the construction put upon the 60th section of the bank charter by the State court ought to be conclusive upon the courts of the United States, the answer to it will be found in the case of the Ohio Life Insurance and Trust Company vs. Debolt, (16 How., 432,) and Mechanics and Traders' Bank vs. Debolt, (18 How., 380.)

Mr. Murray, of Ohio, for defendant in error. Does the 60th section of the act passed February 24, 1845, entitled 'An act to incorporate the State Bank of Ohio and other banking companies,' constitute a contract, within the meaning of the 10th section of the first article of the Constitution of the United States, between the State and the banking companies organized under said act, as to the rate of taxation to which such banking companies shall be subjected?

This precise question has heretofore been submitted to this court, and by it decided in the affirmative. Piqua Branch, &c., vs. Knoop, (16 How., 369.) But it can hardly be claimed that this one decision, made by a divided court, the majority only agreeing in the conclusion arrived at, but wholly disagreeing as to the reasons therefor, so far settled this question that it is no longer an open one. A renewal of this decision is asked for because the question is one as to the construction of the constitution and laws of the State of Ohio, and it is the duty of this court to follow the construction given by the Supreme Court of that State. O. L. I. & T. Co. vs. Debolt, (16 How., 431;) Elmendorf vs. Taylor, (10 Wheaton, 150-9;) Swift vs. Tyson, (16 Peters, 1-18;) Shelby vs. Guy, (11 Wheaton, 361;) Luther vs. Borden, (7 How., 40;) Neves vs. Scott, (13 How., 271;) Raymond vs. Longworth, (14 How., 78-9;) United States vs. Morrison, (4 Peters, 137;) Green vs. Neal, (6 Peters, 291.)

The State of Ohio had, under the constitution of 1802, no power to exempt property from taxation so as to bind subsequent Legislatures. An act of incorporation, when accepted, can only constitute a contract between the grantor and grantees as to those rights, privileges, &c., which it was in the power of the grantor to grant. The whole doctrine of contracts, as resulting from an accepted charter, is based on the fact that the King of England had no power to revoke a charter or patent which he had once granted, and which had been accepted and acted upon by the grantees. The King never did grant, and had no power to grant, exemption from taxation, either in whole or in part, any more than he could have divested the Government of its right of eminent domain. Any grant of either would have been beyond his power, and void. Consequently it could have formed no part of any valid contract with his grantees. The Legislature of a State, then, even if they have succeeded to a certain extent to the prerogative of the King, have no power to make a grant of rights and privileges which it was not in the power of the King to grant; and if their right to make a contract, which cannot be revoked by a subsequent Legislature, is based upon the power of the King of England in similar cases, it must be taken subject to all the restrictions and limitations which apply to his exercise of this power. But the Legislature of Ohio, at the time of passing the tax law of April 5, 1859, and the prior laws changing the rule of taxation prescribed by the 60th section of the act of February 24, 1845, was inhibited from passing the same.

At the time of the passage of this act of February 24, 1845, there was upon the statute-book of Ohio, in full force, an act passed March 7, 1842, (Ohio Law, vol. 40, p. 70,) which provided, that all subsequent corporations, whether possessing banking powers or not, were to hold their charters subject to alteration, suspension, and repeal, at the discretion of the Legislature. Now, if the Legislature in this act of February 24, 1845, had provided in express terms that said act and all rights, privileges, franchise, etc., thereby granted, should not, for a given term of years, be subject to alteration, repeal, or suspension, then it might, with some show of reason, be claimed that the prior act of March 7, 1842, was repealed by implication-a mode of repeal, however, which is never favored; but inasmuch as nothing of that kind is contained in said act, we are bound to presume that it was intended to be made in all respects subject to all general acts then in force having reference to corporations of a similar nature. This 60th section of the act of 1845, in several respects, is wholly wanting in those ingredients which are indispensable requisites to a contract.

That it was designed by the Legislature to constitute a contract between the State and banking companies organized thereunder, as to the rate of taxation to which they should be subjected during their existence, will not be presumed.

The contract, if one exists, must be contained in the express terms of the act itself; it must appear therein so plainly and obviously as to be beyond doubt; and if any other construction of the terms of the act than that which makes it a contract can be reasonably given to it, that construction will be adopted. Providence Bank vs. Billings, (4 Peters, 561;) Charles River Bridge vs. Warren Bridge, (11 Peters, 420;) Debolt vs. O. L. I. & T. Co., (1 O. St. Rep., 573;) United States vs. Arredondo, (6 Peters, 738;) Mills vs. St. Clair County, (8 How., 581;) Perrine vs. C. & D. C. Co., (9 How., 185;) Cincinnati College vs. The State, (19 Ohio Rep., 110;) Richmond Railroad Co. vs. Louisiana Railroad Co., (13 How., 81;) Lebanon Bank vs. Mangan, (4 Casey, 452;) Parker vs. Commonwealth, (6 Barr, 411;) Bank Pa. vs. Commonwealth, (7 Harris, 152;) Mott vs. Pennsylvania Railroad Co., (30 Pa. St. Rep., 24.)

Neither does it follow that by the language used by the Legislature in this 60th section, it was intended or designed to create a permanent measure or system of taxation. Preble County Bank vs. Russell, (1 O. St. Rep., 313;) Bank of Columbia vs. Okley, (4 Wheaton, 234;) Young vs. Bank of Alexandria, (4 Cranch, 397;) Crawford vs. Bank of Mobile, (7 How., 297;) B. & S. Railroad Co. vs. Nesbit, (10 How., 396.)

Mr. Justice WAYNE.

title: Jefferson Branch Bank v. Skelly


text: Talk:Jefferson Branch Bank v. Skelly

title: Talk:Jefferson Branch Bank v. Skelly


text:
Jefferson Branch Bank v. Skelly/Opinion of the Court

This case has been brought to this court by a writ of error to the Supreme Court of the State of Ohio.

Its purpose is to revise a judgment rendered by that court, in which it has, among other things, declared, contrary to the uniform decisions of this court upon the same subject-matter, that the 60th section of the charter of the State Bank of Ohio is not a contract within the meaning of that clause of the Constitution of the United States which provides, 'that no State shall pass any law impairing the obligation of contracts.'

We shall not now reargue the question, nor any point in connection with it, thinking it best to give, without addition, what have been the judgments of this court, when the matter in connection with the charter of the State Bank of Ohio has been before it. The reasoning of the Supreme Court of Ohio has, at all times, had our most respectful consideration. Hoc non obstante, however, it is again reproduced by that court as the foundation of its judgment, without other illustration than it had when we first were called upon to review it; and we are now asked to reconsider it by the District Attorney, James Murray, Esquire, upon an intimation, that this court might be induced to reverse its decision in the Piqua Branch case, because that judgment of this court involves the construction of the constitution and laws of the State of Ohio differently from what both had been decided to be by the Supreme Court of the State, and that the Supreme Court of the United States should follow or conform to the conclusion of the former, at the same time admitting that there had been an inconstancy of interpretation by the Supreme Court of Ohio in its judgments upon the 60th section of the charter of the State Bank of Ohio.

We answer to this, as this court has repeatedly said, whenever an occasion has been presented for its expression, that its rule of interpretation has invariably been, that the constructions given by the courts of the States to State legislation and to State constitutions have been conclusive upon this court, with a single exception, and that is when it has been called upon to interpret the contracts of States, 'though they have been made in the forms of law,' or by the instrumentality of a State's authorized functionaries, in conformity with State legislation. It has never been denied, nor is it now, that the Supreme Court of the United States has an appellate power to revise the judgment of the Supreme Court of a State, whenever such a court shall adjudge that not to be a contract which has been alleged, in the forms of legal proceedings, by a litigant, to be one, within the meaning of that clause of the Constitution of the United States which inhibits the States from passing any law impairing the obligation of contracts. Of what use would the appellate power be to the litigant who feels himself aggrieved by some particular State legislation, if this court could not decide, independently of all adjudication by the Supreme Court of a State, whether or not the phraseology of the instrument in controversy was expressive of a contract and within the protection of the Constitution of the United States, and that its obligation should be enforced, notwithstanding a contrary conclusion by the Supreme Court of a State? It never was intended, and cannot be sustained by any course of reasoning, that this court should, or could with fidelity to the Constitution of the United States, follow the construction of the Supreme Court of a State in such a matter, when it entertained a different opinion: and in forming its judgment in such a case, it makes no difference in the obligation of this court in reversing the judgment of the Supreme Court of a State upon such a contract, whether it be one claimed to be such under the form of State legislation, or has been made by a covenant or agreement by the agents of a State, by its authority.

We have thus given, very much in what has been the language of this court, what has been always its attitude in re spect to the revisal of the judgments of the Supreme Court of a State upon contracts which have been declared not to be within the protection of the Constitution of the United States.

We will now show, that this opinion may be better understood, in connection with the citations which will be produced to sustain it, the origin of this controversy from its proceedings and pleadings.

It was an action of trespass brought by the plaintiff in error against the defendant Skelly, for forcibly entering the plaintiffs banking-house, and taking and carrying away gold coin, the money of the plaintiff. To this charge the defendant pleaded the general issue, not guilty, and two pleas of justification substantially the same. They are: That the defendant, as treasurer of the county, had received from the auditor for the collection of taxes, a tax duplicate of $5,303 70, which had been assessed in the year 1852 upon the plaintiff's property for State and county taxes, and other purposes; that being unpaid after the time allowed by law for its payment, he had seized and taken from the plaintiffs banking-house $5,568 88 in money of the plaintiff, to satisfy the tax and penalty for default of payment, as he had the right officially to do. To these pleas the plaintiff replied: That the bank prior to 1850 had been incorporated and organized as a banking company, in conformity with an act of the General Assembly entitled 'An act to incorporate the State Bank of Ohio and other banking companies,' passed the 14th of February, 1845, and as such had carried on business as a branch of the State Bank of Ohio, and was then doing so; that it had at all times, as required by the 60th section of the act, set off to the State six per centum on its profits, deducting from it the expenses and its ascertained losses for the six months preceding; and that the cashier had punctually, within ten days after having done so, informed the auditor of the State that it had been done, and that it had paid the same, whenever required, to the treasurer, upon the order of the auditor, and that they had been and were then ready to pay the amount according to law.

It is alleged, that the bank had performed all required by the 60th section of the act of incorporation, and that from its acceptance of the act and compliances with it, a contract had been made between the State and the bank, according to the 60th section, that the six per centum on the profits of the bank, to be divided semi-annually and set off to the State of Ohio, should be in lieu of all taxes which the bank and its stockholders, on account of the stock held by them, were bound to pay; and that the assessment set forth in the defendant's pleas of justification was a direct violation of the contract between the State and the banking company. To this replication the defendant made no answer, and a judgment was rendered against them for want of a rejoinder.

In that state of the case, it was carried by appeal into the District Court of Ohio, and there submitted to a jury upon the plea of not guilty, and a verdict was rendered for the plaintiff. But after that judgment, the verdict was arrested by the District Court, upon the ground that the matter set forth in the plaintiff's replication was no answer to the defendant's pleas of justification, and that those pleas were a bar to the plaintiff's recovery.

The case was then carried by appeal to the Supreme Court, and the judgment of the District Court was affirmed, on the express ground that the 60th section of the bank charter was not a contract between the State and the bank, within the meaning of that clause of the Constitution of the United States which provides that 'no State shall pass any law impairing the obligation of contracts;' and that the act of the General Assembly, passed the 13th April, 1852, for the assessment and taxation of all property in the State, according to its true value in money, was binding on the Bank of the State of Ohio, and its branches.

Having given the case in its pleading and proceedings in all their irregularities, we now proceed to state what have been the uniform decisions of the Supreme Court of the United States in respect to the protective clause against legislation by the States impairing the obligation of contracts, and particularly of that legislation of Ohio comprehending the present controversy, which its Supreme Court has affirmed to be constitutional, and which is now regularly before us for review and reversal, in conformity with previous decisions of this court.

First, as to the decisions of this court in respect to the power of a State Legislature to bind the State by a contract, we refer to the case of Billings vs. The Providence Railroad Bank, that of the Charles River Bridge Company, and that of Gordon vs. The Appeal Tax Court, and to the case of The Richmond Railroad Company vs. The Louisa Railroad Company, (13 How., 71.) The last, in principle, was identical with that of The Charles River Bridge vs. The Warren Bridge. The opinion of the majority of the court was put upon the ground that the Legislature of a State had a right to bind the State by such a contract, and the three dissenting judges in that case were of the opinion, as the report of the case will show, not only that the Legislature might bind the State by such a contract, but that it had bound it, and that the charter of the Louisa Railroad Company violated the contract, and impaired its obligation. This court has also decided that the charter of a bank is a franchise, which is not taxable as such, if a price has been paid for it, which the Legislature has accepted, with a declaration that it was to be in lieu of all other taxation. Gordon vs. Appeal Tax Court, (3 How., 133.) The rule of construction in such a case is, that the grant of privileges and exemptions to a corporation are to be strictly construed against the corporators, and in favor of the public; that nothing passes but what has been granted in clear and explicit terms; and that neither the right of taxation, nor any other power of sovereignty, will be held by this court to have been surrendered, unless such surrender has been expressed in terms too plain to be mistaken.

In respect to the power of a State Legislature to exempt persons, corporations, and things from taxation, and to bind the State by such enactment, we refer to the case of New Jersey vs. Wilson, (7 Cranch, 164.) The circumstances of that case were these: A legislative act declaring that certain lands should be purchased for the Indians, and that such lands should not be thereafter subject to taxation, it was decided by this court, that such language made a contract between the Indians and the State, which could not be rescinded by a subsequent legislative act, and that such a repealing act was void under that clause of the Constitution of the United States prohibiting the States from passing any law impairing the obligation of contracts. The case shows what has been the fidelity of this court to the Constitution in this particular. The illustration will be more decisive by briefly stating the circumstances of the case. In 1758 the State of New Jersey purchased the Indian title to lands in that State, and as a consideration for the purchase, bought a tract of land as a residence for the Indians, having previously passed an act declaring that such lands should not be subject thereafter to any tax by the State, any law or usage, or law then existing, to the contrary notwithstanding. The Indians, from the time of purchase, lived upon the land until the year 1801, when they were authorized, by an act of the Legislature, to sell the land. This last act contained no provision in respect to the future taxation of the land. Under it, the lands were sold. In October, the Legislature repealed the act of August, 1758, which exempted the lands from taxation, subjecting them to taxes in the hands of the purchasers. They were assessed and demanded; the purchasers resisted; and, upon the trial of the case, the taxes imposed by the act of 1804 were declared to be unconstitutional. This court then said, the privilege, though for the benefit of the Indians, is annexed by the terms which create it to the land itself, and not to their persons. In the event of a sale, the privilege was material, because the exemption from taxes enhanced its value.

Our reports have other cases of a like kind, passed upon by this court with like results. In every case, the vital importance of a State's right to tax was considered, and the relinquishment of it by a State has never been presumed. The language of the court has always been cautious, and affirmative of the right of the State to impose taxes, unless it has been relinquished by unmistakable words, clearly indicating the intention of the State to do so. This court has always said and acted upon it: 'We will not say that a State may not relinquish its right to tax in particular cases, or that a consideration sufficiently valuable to induce a partial increase of it may not exist, but as the whole community is interested in preserving it undiminished, it has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of a State to abandon it does not appear.'

We are aware, that the very stringent rule of construction of this court, in respect to taxation by a State, has not been satisfactory to all persons. But it has been adhered to by this court in every attempt hitherto made to relax it; and we presume it will be, until the historical recollections, which induced the framers of the Constitution of the United States to inhibit the States from passing any law impairing the obligation of contracts, have been forgotten. This court's view of that clause of the Constitution, in its application to the States, is now, and ever has been, that State Legislatures, unless prohibited in terms by State constitutions, may contract by legislation to release the exercise of taxing a particular thing, corporation, or person, as that may appear in its act, and that the contrary has not been open to inquiry or argument in the Supreme Court of the United States.

This brings us to the consideration of the legislation of Ohio, upon which its Supreme Court has passed judgment on the case now before us.

It has been decided three times by this court, that the 60th section of the charter of the State Bank of Ohio was a contract between the State and the bank within the meaning, and entitled to the protection of the Constitution of the United States against any law of the State of Ohio impairing its obligation; and that the acts of Ohio, upon which the Supreme Court of Ohio has assumed the State's right to tax the State Bank of Ohio and its branches differently from the tax stipulated for in the 60th section of the charter, were and are unconstitutional and void.

The first case in the order of time is that of the Piqua Branch, &c., &c., vs. Knoop. In that case, we declared the act of 1845 to be a general banking law, the 59th section of which required the bank to make semi-annual dividends, and that the 60th section required the officers of the banks to set off six per cent. of such dividends in the manner prescribed in it for the use of the State, which sum the State had consented to accept, and would accept in lieu of all taxes, to which the banks or their stockholders might otherwise be subject; that the act was a contract, fixing the amount of taxation, and not a rule or law prescribed until changed by the Legislature of the State of Ohio; that the act of 1851, to tax banks and other stocks the same as property, was an act to increase the tax upon the banks, and that such law being a violation of the State's contract, that the banks were not bound to pay the same; that a municipal corporation, in which is vested some portion of the administration of the Government, may be changed at the will of the Legislature; but that a bank, in which stock is held by individuals, is a private corporation, and its charter is a legislative contract, which cannot be changed without its consent; and in connection, this court again repeated that, by the 60th section of the act of 1845, the State bound itself by contract to levy no higher tax than was mentioned in it upon the bank, should it be organized under that law during the continuance of their charters.

Two years afterwards, in 1855, the particulars of the decision, as they have just been stated, were reaffirmed. It also then added, that a stockholder in a corporation has a remedy in chancery against the directors of a bank, to prevent them from doing acts which would amount to a violation of its charter, or to prevent them from any misapplication of its capital, which might lessen the value of the shares, if the acts intended to be done shall amount to what the law deems to be a breach of trust; also that a stockholder in a bank or other corporation had a remedy in chancery against individuals, in whatever character they profess to act, if the subject of complaint is an imputed violation of a corporate purchase, or the denial of a right growing out of it, for which there is not an adequate remedy at law; and if the stockholder who complains be a resident of another State than that in which the bank or corporation has its habitat, that he may then resort to the courts of the United States for a remedy.

That the fact, that the people of the State of Ohio had, in the year _____, adopted a new constitution, in which it was declared that taxes should be imposed upon banks in the manner provided for by the act of 13th April, 1852, cannot be applied to the State Bank of Ohio or its branches, without a violation of the contract contained in the charter of 1845. Having now noticed every essential point made in the argument in support of a claim, to subject the Bank of the State of Ohio and its branches to a higher rate of taxation than that stipulated in its charter, we will close this opinion in the language of the Chief Justice, in Knoop's case: 'I think, that, by the 60th section of the act of 1845, the State of Ohio bound itself by a contract to levy no higher tax than the one there mentioned upon the banks or stocks of the banks organized under that law during the continuance of their charters. In my judgment, the words used are too plain to admit of any other construction.'

We shall direct a reversal of the judgment of the Supreme Court of Ohio in this case, and direct a mandate to be issued accordingly.

Judgment of the Supreme Court of Ohio reversed.


text: Talk:Jefferson Branch Bank v. Skelly/Opinion of the Court


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Washington v. Ogden

Writ of error to the Circuit Court of the United States for the northern district of Illinois.

This suit was originally brought in the Superior Court of Cook county, Illinois, but removed thence to the Federal Circuit Court upon the petition of the defendants and proof that they were both citizens of Virginia, while the plaintiff was a citizen of Illinois.

The plaintiff filed his declaration in debt, claiming a right to recover the sum of thirty-five thousand dollars, being the amount payable and due on the paper copied by Mr. Justice Grier in his opinion, with interest thereon from the expiration of sixty days after the date of the paper, to wit, 20th July, 1859. The declaration describes fully the property which Washington and Turner agreed to buy from Ogden, and which is designated in their agreement merely as the property described in the John S. Wright contract of June 4, 1855. The narr. further avers that the contract with Wright (to whom the same land had been previously sold by the plaintiffs) was surrendered and cancelled, and that the plaintiffs were ready at all times to make a deed to the defendants for the property sold.

The defendants demurred first, and the declaration was amended. Then pleaded thirteen pleas, craving oyer four times of the paper on which suit was brought, and which was fully set out in plaintiff's declaration. The plaintiff demurred to some of the pleas, and some of the demurrers were sustained and some overruled. The pleadings were at length settled so as to raise the questions—

Whether the plaintiff was ready and willing to perform his part of the contract by making the proper conveyance to the defendants of the lands described in the agreement.

Whether the contract previously made with Wright for the sale of the same lands was surrendered and cancelled within sixty days, agreeably to the terms of the contract between the present parties.

Whether it was necessary that Wright should release his title by a written deed.

Whether the plaintiff, in demanding securities for the deferred payments, which he had no right to ask, absolved the defendants from the obligation of tendering the thirty-five thousand dollars now sued for.

Evidence on both sides was given, documentary and oral. The court decided the points of law and the jury found the facts in favor of the plaintiff, for whom a verdict and judgment were rendered for debt and interest, amounting to $36,481 66.

The defendants thereupon took this writ of error.

Mr. Arrington, of Illinois, for plaintiffs in error. The declaration is fatally defective. It alleges no title in Ogden, nor any right to convey, but merely his readiness to deliver a deed. The contract was an agreement to sell land, and that implies transmutation of property from one man to another. 2 Blackstone 446; Williamson vs. Berry, (8 Howard, 544;) Thomas vs. Van Ness, (4 Wendell, 549.) A deed might be executed without conveying and title. The declaration should have averred title in Ogden and a readiness to execute such a deed as would be effectual to transfer that title. 1 Chit. Pl., 327; Thomas vs. Van Ness, (4 Wendell, 549;) Glover vs. Tuck, (24 Wendell, 153;) Tyler vs. Young, (2 Scam., 146;) Burn vs. McNulty, (2 Gilman, 128.) You cannot compel a vendee to take a lawsuit instead of the land. Bank of Columbia vs. Hagner, (1 Peters, 455.) Performance must always be alleged according to the intent of the contract. It is not sufficient to follow merely the words. 1 Chit. Pl., 325.

The declaration does not allege notice to the defendants of the surrender and cancellation of the Wright contract, and this being a matter peculiarly within the knowledge of the vendor, should have been stated. 1 Chit. Pl., 328; Com. Dig., C. 73, 74; 2 Pars. Cont., 182. These defects in the declaration are not aided by the verdict. 1 Chit. Pl., 673; Dodson vs. Campbell, (1 Sumner, 319;) Addington vs. Allen, (11 Wendell, 375.)

The court below assumed that a bare declaration by the plaintiff that Wright's contract was forfeited would be legally equivalent to a surrender and cancellation of it. This was clearly erroneous, and misled the jury. Caldwell vs. United States, (8 Howard, 366;) Tucker vs. Moreland, (10 Peters, 58;) United States vs. Beitling, (20 Howard, 254.)

The court said that if it was the agreement and understanding of all parties in interest that the contract was at an end, then it might be regarded as substantially surrendered and cancelled. This statement tended to mislead the jury, whether as a rule of law it was true or false, for there was no evidence of any such understanding or agreement.

An error still more extraordinary is found in the sentence that 'the offer of the property for sale and a declaration of forfeiture after default of payment might be sufficient as showing the exercise of the option on the part of the grantor.' It is true that in Chrisman vs. Miller, (21 Ill., 226,) it was held that the mere act of offering the land for sale after default of the purchaser is sufficient to put an end to the contract. From this the judge of the Circuit Court deduced the startling inference that the mere offer of Ogden to sell the land to Washington and Turner was, per se, a performance of his covenants with them to have the contract with Wright surrendered and cancelled. The surrender and cancellation of Wright's contract was a condition precedent to that which Ogden made with Washington and Turner, and the court had no right to estimate either the importance or necessity of a compliance with it.

Mr. Fuller, of Illinois, and Mr. Carlisle, of Washington city, for defendants in error. In actions against a purchaser on a contract for the sale of land, the plaintiff is not bound to show that he has title to the land. The contract admits at least prima facie his title, and the onus is on the defendant to show that he has not. Bretthauph vs. Thurmand, (3 Richardson, 216;) Brown vs. Bellows, (4 Pickering, 179;) Dwight vs. Cutler, (3 Mich., 566;) Espy vs.Anderson, (14 Penn., 311.)

Under the Wright contract, neither Wright himself nor his assignee had any interest or estate in the premises, and could acquire none, except by complying with the terms of it. This had not been done, and Ogden had a right to treat the contract as at an end. He exercised that right by selling the property to the defendants. Wright and his assignee, Clapp, both knew this, and acquiesced in it. This was a complete surrender and cancelment of the contract. Chrisman vs. Miller, (21 Ill., 227;) Steele vs. Bigg, (22 Ill., 643.) Although the contract was not released of record, that formed no valid objection to the title, as was decided in Greenleaf vs. Queen, (1 Peters, 138;) Espy vs. Anderson, (14 Penn., 308.)

The duty of defendants was to pay the money sued for, and execute bonds and mortgage. No notice from the plaintiff was required. The averment of the plaintiff's readiness to perform his part of the contract was sufficient. 1 Chit. Pl., 326; Rowsen vs. Johnson, (1 East., 208;) Tierney vs. Ashley, (18 Pickering, 546;) West vs. Emmons, (5 Johnson, 179;) Williams vs. Bank of United States, (2 Peters. 96.) A time and place being fixed for the performance by the defendants of their part of the contract, and they not having attended, and the first act of performance resting on them, the plaintiff could do nothing but be ready to perform his part. In the absence of the defendants, he could do no more. The averment of readiness to perform is sufficient, especially after verdict. 1 Chit. Pl., 359.

Mr. Justice GRIER.

title: Washington v. Ogden


text: Talk:Washington v. Ogden

title: Talk:Washington v. Ogden


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Washington v. Ogden/Opinion of the Court

The very numerous exceptions to the sufficiency of the pleadings, and the correctness of the instructions given by the court, all depend on the construction given to the covenants of the agreement, which is the foundation of the suit. It is in the following words:

'CHICAGO, June 20, 1859.

'We will give M. D. Ogden, trustee Chicago Land Company, sixty-seven thousand and five hundred dollars for the property described in the John S. Wright contract with the trustees of the Chicago Land Company, dated June 4, 1855, or thereabouts, and pay for the same as follows: thirty-five thousand in cash within the next sixty days, and the balance in one, two, and three years, in equal instalments, with six per cent. interest, payable annually. It is understood that it is all payable at the office of Ogden, Fleetwood & Co., in Chicago. In the event of our being deprived of the water front on block 35, Elston's addition to Chicago by Robins, a difference in the purchase-money shall be made, corresponding to the value of the property lost. The said M. D. Ogden, trustee, &c., agrees to sell to John A. Washington and Wm. F. Turner, both of Virginia, the above described property for the said sum of sixty-seven thousand five hundred dollars, payable as above; and on the payment of the said thirty-five thousand dollars cash, within the next sixty days, he will make a deed to said Washington and Turner for said property, and take a bond and mortgage on the same, for payment of the balance of thirty-two thousand five hundred dollars, to be paid as above stated. This agreement is to be dependent on the surrender and cancelment of said contract with said Wright.'

It is evident that the covenants of this contract are not independent. They are concurrent or reciprocal, constituting mutual conditions to be performed at the same time. The vendor is not bound to convey, unless the money due on the first instalment be paid; nor is the purchaser bound to pay unless the vendor can convey a good title, free of all incumbrance. The agreement shows that the vendor at that time was not able to give a satisfactory title, having a deed on record, by which he had covenanted to convey the same land to another. It is therefore made a condition precedent by this agreement, that this previous contract should be surrendered and cancelled. The declaration avers that the contract with Wright was surrendered and cancelled on the 28th day of June, and that the plaintiff has been ever ready and willing to receive the money at the time and place, and 'to deliver to defendants a deed of the property.' But there is no averment in the narr. that the plaintiff had a good and sufficient title, free from all incumbrance, which he was ready and willing to convey. It is true, the words of his covenant are, 'that he will make a deed' to his vendees on receipt of the first instalment. But the meaning of these words in the contract requires that the deed shall convey the land, and it is not sufficient to aver his readiness to perform, merely according to the letter of the contract. The performance must always be averred according to the intent of the parties. It is not sufficient to pursue the words, if the intent be not performed. The legal effect of a covenant to sell is, that the land shall be conveyed by a deed from one who has a good title, or full power to convey a good title.

A sale, ex vi termini, is a transfer of property from one man to another. It is a contract to pass rights of property for money. This defect in the declaration cannot be cured by the verdict, under a presumption that the facts necessary to support it have been proved before the jury, because it appears by the record that no such proof was offered to aid the insufficient averments of the declaration.

It appears, also, that the averment with regard to the surrender and cancelment of the contract with Wright, even if sufficiently pleaded, was wholly without proof to support it, and that the court instructed the jury that they might presume it without proof. It is clearly a condition precedent, without the literal performance of which the purchasers were not bound to pay their money. The vendor had, on the 4th of June, 1855, covenanted to sell this land to John S. Wright, on payment of certain instalments. The vendors had reserved to themselves very stringent and unusual powers of declaring the contract forfeited in case of non-payment of the several instalments. John S. Wright, on the third of July, 1837, by his deed, conveyed all his right and title to the premises to Timothy and Walter Wright. This deed was recorded 13th July, 1837.

T. & W. Wright, on the 3d day of December, 1857, conveyed to James Clapp, and the deed was recorded on the 12th of December, 1857. These deeds could not be surrendered or cancelled by parol. Both the original and the record should have been cancelled and surrendered by act of the parties thereto under seal; if not by all, yet certainly by Clapp. This was not done. The plaintiffs in error had prepared their money. Their agent called on Ogden to obtain an abstract of the title, and a proper surrender or release of the outstanding title, and was instructed to prepare proper bonds and a mortgage. Ogden promised to attend to having a proper surrender executed, but none was shown or tendered to the agent; on the contrary, Ogden handed him a mortgage and notes to be sent to the purchasers to be executed by them. They refused to sign instruments in that form, and returned them to their agent. He returned them to Ogden, stating, among other reasons, that they expected a proper release or surrender of the outstanding title, and that in the absence of such a release Ogden could not make a good title nor give possession. A second mortgage and bonds were then drawn and sent to the purchasers by Ogden, which were also objected to, and another promise given, 'that the release should be attended to.'

But no such deed of release or surrender was made, executed, or tendered to the purchasers within the sixty days. Clapp did not execute a release till after the 1st of September, which was antedated as of the 15th of August. On this evidence, which was uncontradicted, it was clearly the duty of the court to have instructed the jury that the plaintiffs below had not made out a case which entitled them to a verdict; on the contrary, the court instructed the jury as follows: '2d. By the terms of the John S. Wright contract, if default were made in the payment of the instalment due in 1859, it was competent for the Messrs. Ogden, at their option, to declare it forfeited and at an end as a contract for conveyance, and the land might be granted to another. No release or conveyance in writing by Wright or his assignee was absolutely necessary in such case, in order to put an end to the contract to convey. Strictly speaking, Wright, having parted with his interest in the land to Clapp, had no power over the contract; but if he, with the acquiescence and consent of Clapp, after default of payment, delivered the contract to Mr. Ogden, and it was the agreement and understanding of all parties in interest that the contract was at an end, then it might be regarded as substantially surrendered and cancelled. That the offer of the property for sale, and a declaration of forfeiture after default of payment, might be sufficient, as showing the exercise of the option on the part of the grantor.'

This instruction was excepted to by defendant. It was a very grave error to instruct the jury that the acquiescence of Clapp, and the mutual understanding of the parties to that transaction, might be regarded by the jury as an actual cancellation and surrender as between the parties to this suit. Acquiescence expressed by parol, and mutual understanding that a title should be released, cannot be made a substitute for a deed of release or surrender, executed and recorded. Deeds under seal can be surrendered and cancelled only by other deeds under seal. No prudent man would accept a title with full notice on record, and knowledge of such an outstanding title. This contract, by its plain terms, is 'dependent on such surrender and cancelment being made within the sixty days.' It is a condition precedent, without the performance of which, within the term specified, the purchaser had a just right to declare the contract annulled. To entitle the plaintiffs below to recover in this suit, the declaration should have averred that such deeds of surrender and cancellation had been duly executed; that the plaintiff had a perfect title, free of all incumbrances, and was able as well as willing and ready to convey a good title to the plaintiff on the day named in the agreement. But he was not able to prove such averments, if they had been made, and his case failed both in its pleadings and its proofs; consequently there was error in ruling the demurrers of the plaintiff to the 4th, 6th, and 7th pleas of defendant in favor of plaintiffs. The pleas alleged proper matters of defence to the suit, either in whole or in part. They were sufficient on general demurrer, which goes back to the first error in pleading. And from what we have already said, the first error in pleading is found in the declaration. It is not necessary to discuss more at large the form of the pleadings, or whether the action should not have been covenant and not debt, as the plaintiff was not entitled to recover in any form of action, according to the undisputed facts in evidence.

The judgment of the Circuit Court reversed, and venire de novo.


text: Talk:Washington v. Ogden/Opinion of the Court


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McCool v. Smith.

Writ of error to the Circuit Court of the United States for the northern district of Illinois.

Hamilton McCool brought ejectment in the Circuit Court against Spencer Smith for the northeast quarter of section eleven, in township 10 north, of range 1 west, of the fourth principal meridian. The defendant pleaded not guilty, and a jury being called, found the following special verdict:

'That the land mentioned in the said declaration was, on the 7th day of June, 1818, duly granted by the United States to Alonzo Redman, for his military services in the late war between the United States and Great Britain; that said Redman was the illegitimate son of Polly Norris; that said Polly Norris had three other illegitimate children, named Eleanor Fogg, Joseph Melcher, and Sophia Norton; that Eleanor Fogg died without issue in the year 1824; that Joseph Melcher died without issue in the year 1814; that Alonzo Redman died without issue in the year 1825; that Polly Norris died without any other issue than as above stated, in the year 1837; that Sophia Norton married Reuben Rand in the year 1816; that Reuben Rand died in June, 1853; that Sophia Rand, on the 23d day of June, 1854, by her quit claim deed of that date july executed, conveyed said land to one Levi F. Stevens; that said Stevens, on the 21st day of April, 1855, by his quit claim deed of that date, duly conveyed said land to Spencer Smith, the plaintiff.

'That the General Assembly of the State of Illinois passed an act, entitled 'An act to amend an act concerning the descent of real property in this State, approved February 12, 1853,' which act was approved by the Governor on the 16th day of February, 1857, which act is in the words and figures following, viz:

"SECTION 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That in all cases where any person shall have died, leaving any real property, before the passage of the act to which this is an amendment, which, by the provisions of the act to which this is an amendment, would have descended to any illegitimate child or children, such child or children shall be deemed and adjudged to be the owner of such real property, the same as if such act had been in force at the time of such death, unless such property shall have been proceeded against, and the title thereto vested in the State, or other persons, under the law of this State concerning escheats.

"SECTION 2. In all such cases, hereinbefore specified, where any such illegitimate child or children shall have sold and conveyed such real property by deed duly executed, or where the same would have descended by the provisions of the act to which this is an amendment, and shall have been conveyed by deed by the person to whom the same would have descended, then such conveyances shall vest the same title thereto in the grantee as by this act is vested in such illegitimate child, from the date of such deed, and in all actions and courts such grantee shall be deemed to be the owner of such real property from the time of the date of the conveyance.

"SECTION 3. This act shall be in force from and after its passage.'

'That said lands have never been proceeded against, and the title thereto vested in the State, or other persons, under the law of this State concerning escheats.

'We further find, that John Brown, collector of taxes, in and for the county of Warren, and State of Illinois, did, on the 25th day of May, 1840, sell said land to Isaac Murphy, for the taxes due to the State and county aforesaid, upon said land, for the year 1839, and that he did, on the 9th day of September, 1843, in pursuance of said sale by deed of that date, convey said land to the said Murphy; that said collector, in making such sale and conveyance, did not comply with the law authorizing the sale of lands for taxes, and that said deed was for that reason invalid as a conveyance of the legal title. That said Murphy claiming said land in good faith, under said deed, improved, occupied, and cultivated the same, and paid all the taxes assessed thereon, for and during the years 1843, 1844, 1845, and 1846. That said Murphy, on the 7th day of April, 1847, by his deed of that date, conveyed the said land to Hamilton J. McCool, the defendant, who immediately thereafter took possession thereof, and has been in the actual possession thereof ever since, claiming the same in good faith, under said conveyances, and that he has paid all the taxes assessed upon said land for and during the years 1847, 1848, 1849, 1850, 1851, 1852, 1853, 1854, 1855, and 1856. That the taxes so paid to the said State and county, by the said Murphy and McCool, amount to the sum of one hundred and nine dollars. If from these facts the court is of the opinion that the plaintiff is entitled to recover, &c., then we find for the plaintiff, and that said plaintiff is the owner of the land, in fee simple, and assess his damages at one cent; otherwise, we find for the defendant.'

Upon this verdict the Circuit Court gave judgment for the plaintiff, and the defendant took his writ of error.

Mr. Browning, of Illinois, for plaintiff in error. Redman being an illegitimate child, his mother could not take under the ordinance of 1787, which speaks only of children, descendants, parents, next of kin, &c. When words denoting kindred are used, either in laws or private instruments, without other additions, they include none but legitimate kindred. 2 Kent's Com., 212-13; 4 Kent's Com., 413-14; 3 Cruise Dig. Tit., 29, ch. 2, sec. 8, and note; 2 Domat., p. 26, Art. 2455; p. 49, Art. 2497 and 8; p. 88, Art. 2571; p. 211, Art. 2861; p. 280, Art. 3029; p. 283, Art. 3036; p. 178, Articles 2793 and 4; Illinois Stat. of Wills, sections 46, 47, and 53; Bayley vs. Mollard, (1 Russel & Mylne, 575;) S.C.. 4 Cond. Eng. Chancery R., 565; Wilkinson vs. Adams, (1 Ves. & Bea., 422;) Swaine vs. Kennedy, (1 Ves. & Bea., 469;) Beachcroft vs. Beachcroft, (1 Madd., 234;) Sherman vs. Angel, (1 Bailey Eq. R., 351;) Collins vs. Hoxie, (9 Paige, 88;) Durant vs. Friend, (11 Eng. Law and Eq. R., 2;) Owen vs. Bryant, (13 Eng. Law and Eq. R., 217.)

The Illinois statute of 1829 provided, not that bastards should inherit from each other, or that their mother should inherit from them, but only that they should inherit from their mother. At any rate it does not embrace this case, for Redman died four years before it was passed.

The act of 1853 did provide, that upon the death of an illegitimate person leaving no husband, wife, or children, his or her estate should go to the mother; and if there was no mother, then to the mother's next of kin. But this act was prospective, and did not meet a case like this, where the decedent had died long before.

It was after the commencement of this suit that the plaintiff procured the act of 1857 to be passed, which is set forth in the special verdict, and which declares that the act of 1853 shall relate back to the cases of illegitimate persons who died before its passage. As a law which impairs existing rights, its validity cannot be sustained. Gaines et al. vs. Buford, (1 Dana, 499;) Holden vs. James, (11 Mass., 404;) Hoke vs. Henderson, (4 Dev., 7;) Walley's Heirs vs. Kennedy, (2 Yerg., 554;) Bank vs. Cooper's Securities, (2 Yerg., 600;) Jones vs. Perry, (10 Yerg., 69;) Picquet's Appeal, (5 Pick., 65;) Lewis et al. vs. Webb, (3 Greenl., 326.) Was it a legislative grant of public land by the State? The title was not vested in the State by a judgment of escheat, and therefore the grantee could take nothing, certainly nothing more than the inchoate right of the State. Ill. St. of Esch., Rev. Code of 1845, p. 225; 3 Blackstone Com., 259; Fairfax's Devisee vs. Hunter's Lessee, (7 Cranch, 625-6;) 2 Curtis, 690-1; Craig vs. Bradford, (3 Wheat., 599;) S.C.. 4 Curtis, 308; 3 Com. Dig., Tit. Escheat, page 598, bottom paging; Den vs. Simpson, (Cam. & Nor., 192;) Marshall vs. Loveless, (Cam. & Nor., 233;) McCrury vs. Allender, (2 Har. & McHen., 409;) Doe vs. Horniblea, (2 Hayw., 37.)

If a proceeding had been instituted against the land as escheated, the present defendant would have been made a party, and his defence would have been unanswerable. He had bought the land from the State at a tax sale, paid for it, and been in possession fourteen years. But the grant was not to the plaintiff. If it vested title in anybody, it was either in Sophia Rand, who would have inherited under the act of 1853, or else in her grantee, Levi F. Stephens. True, Stephens attempted to convey to the plaintiff, but he had no title, and as his deed was merely a quit claim, his subsequently acquired title did not inure to the benefit of the plaintiff. Jac. Law Dict. Grant Dellany vs. Burrett, (4 Grl., 493;) Funk vs. Dart, (14 Ill., 307;) Phelps vs. Kellog, (15 Ill., 135.)

Even admitting that the act of 1857 was valid, conceding that it could operate retrospectively, and granting that it vested a title in the plaintiff himself, still he could not recover in this action, because it was commenced before he acquired his title. Such is the rule of the common law, and the ejectment statute of Illinois is emphatic and clear to the same effect. Section 3 provides that no person shall recover in ejectment unless he has title at the time of commencing the action.

Besides all this, the defendant was completely protected by the statute of limitations, which declares that seven years' possession of land, with payment of taxes, shall entitle the occupant to be adjudged the legal owner to the extent of his proper title.

Mr. Kellogg, of Illinois, for defendant in error, argued that the mother of Redfield was his next of kin within the meaning of the law of descents, though the son was illegitimate; that his illegitimate sister could inherit, through her mother; and that the act of 1857 was constitutional.

1. The subtleties and refinements of the common law are not adopted in Illinois. In Hays vs. Thomas, (Breese, 136,) the Supreme Court of that State held that the civil law mode of ascertaining who are next of kin ought to be adopted in construing our statute; and therefore the mother is to be regarded as next of kin to her son. This is conclusive.

2. An illegitimate child may inherit land from the mother. The Illinois statute of descents declares, as its first proposition, that estates of persons dying intestate shall descend to his or her children and their descendants in equal parts.

That at common law, the word child, when used in statutes of this character, was limited to one born in lawful wedlock, is undeniable. But does the English law on this subject prevail in Illinois? No. From the earliest history of that State the policy of her legislation has been to change the English law. The statute of Virginia, passed in 1787, made bastards capable of inheriting from their mother, and transmitting inheritances on her part. This positive enactment, directly contravening the common law, became and was the law of Illinois until 1845, when the Legislature of the State expressly adopted the Virginia statute, by providing that the children of a single woman should not be excluded from taking her property by inheritance on account of their illegitimacy. Following this act of 1845, and amendatory of it, was the act of 1857.

Even at common law, bastards are recognised as children for every purpose but that of succession. Tenn.Rep., 101. They may take under a devise as children of their mother: Com. Dig., Bastard, E. They are punishable for incest: Regina vs. Chaffin.

It is established by the authority of Hays & Thomas that the statutes of distribution are to be construed by the civil law. By that law an illegitimate person may inherit from the mother, she being sufficiently certain, though the father is not.

The very point was decided in Heath vs. White, (5 Conn., 228,) that the word children in a statute for the purpose of inheriting from the mother shall be construed to include illegitimate children; and the same doctrine was expressly held in Burlington vs. Fosby, (6 Va., 83.)

3. The act of 1857 was constitutional and valid. To make a statute void it must be shown that it comes in direct conflict with some constitutional prohibition. It is not enough that it is retroactive, or divests antecedent rights, or gives remedies for defects in a title which would otherwise have been fatal, or affects pending suits, or gives a party rights which he did not possess before, unless it also impairs the obligation of a contract, or has the character of an ex post facto law. Satterlee vs. Matthewson, (2 Pet., 380;) Watson vs. Mercer, (8 Pet., 110;) Charles River Bridge vs. Warren Bridge, (11 Pet., 509;) Wilson vs. ''Baptist Educ. Soc., (10 Bach., 318;) Syracuse Bank vs. Davis, (16 Bach., 188;) Underwood vs. Lilly, (10 Serg. & Rawle, 97;) Tate vs. Stoolzfoas, (16 Serg. & R., 35;) Hepburn vs. Kurtz, (7 Watts, 360;) Baugher vs. Nelson, (9 Gill, 299;) Goshen vs. Stonington, (4 Conn., 410;) Mather vs. Chapman, (6 Conn., 54;) Beech vs. Walker, (6 Conn., 190;) Booth vs. Booth, (7 Conn., 365;) Norton vs. Pettibone'', (7 Conn., 316.) But this act of 1857 took away no existing right; it simply construes the acts of 1845 and 1853 by making them relate to previous as well as to subsequent cases. It confirms rights, but does not destroy them.

Mr. Justice SWAYNE.

title: McCool v. Smith.


text: Talk:McCool v. Smith.

title: Talk:McCool v. Smith.


text:
McCool v. Smith./Opinion of the Court

This was an action of ejectment in the court below. Smith was plaintiff, and McCool defendant. A special verdict was found by the jury. The court rendered judgment for the plaintiff. The defendant has brought the case here by a writ of error, and is the plaintiff in error in this court.

The material facts of the case, as shown in the record, are as follows:

Polly Norris had four illegitimate children. Their names were: Alonzo Redman, Eleanor Fogg, Joseph Melcher, and Sophia Norton.

Alonzo Redman was the patentee of the land in controversy. He died without issue in the year 1825.

Joseph Melcher died without issue in the year 1814.

Eleanor Fogg died without issue in the year 1824.

Sophia Norton married Reuben Rand in the year 1816. Reuben Rand died in June, 1853.

Polly Norris died in 1837 without having had any other issue than those named.

Sophia Rand, on the 23d day of June, 1854, by her quit-claim deed of that date, duly executed, conveyed the land in controversy to Levi F. Stevens. Stevens, on the 21st of April, 1855, by a like deed of that date, conveyed the land to Smith, the plaintiff.

The first law of Illinois, making the blood of bastards heritable, was passed in 1829. This was wholly prospective, and is no otherwise material in this case than as showing the sense of the Legislature of the necessity of such legislation to produce that result.

On the 12th of February, 1853, the Legislature passed another law upon the same subject. It provides, that 'on the death of any such person'--

His or her property shall go to the widow or surviving husband and children, as the property of other persons in like cases.

If there be no children, the whole property shall vest in the surviving widow or husband.

If there be no widow or husband, or descendants, the property shall vest in the mother and her children, and their descendants: the mother taking one-half; the other half to be equally divided between her children and their descendants.

If there be no heirs as above provided, then the property shall vest 'in the next of kin of the mother, in the same manner as the estate of a legitimate person.'

This act also was prospective, and did not affect this case.

On the 16th of February, 1857, the Legislature passed an act amending the preceding act.

The first section provides, that where any person shall have died before the passage of the amended act, leaving property, which by the provisions of that act would have descended to any illegitimate child or children, such child or children shall be deemed the owner of such property, 'the same as if such act had been in force at the time of such death,' unless the title shall have been 'vested in the State, or other persons, under the law of this State concerning escheats.'

The second section provides, that in all the cases before specified where such illegitimate child has conveyed the property by deed, duly executed, 'or when the same would have descended by the provisions of the act to which this is an amendment, and shall have been conveyed by deed by the person to whom the same would have descended, then such conveyances shall vest the same title thereto in the grantee, as by this act is vested in such illegitimate child from the date of such deed, and in all actions and courts such grantee shall be deemed to be the owner of such real property from the time of the date of the conveyance.'

This act took effect from its date.

It is claimed by the counsel of the defendant in error that, 'at the time of the cession of the northwestern territory to the General Government by the State of Virginia, the statute of that State directing the course of descents, passed in 1785, and which took effect January 1st, 1787, provided as follows:

'In making title by descent, it shall be no bar to a party, that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien. Bastards also shall be capable of inheriting, or of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.'

It is claimed, also, that this statute continued in force in Illinois during the whole period of her Territorial existence, and after she became a State to a period later than the death of Alonzo Redman.

To this proposition there is a conclusive answer.

The General Assembly of Virginia, by a resolution of the 20th of October, 1783, authorized her delegates in Congress to execute a deed, ceding to the United States all her 'right, title, and claim, as well of soil as jurisdiction,' to the territory northwest of Ohio. The deed was executed on the 1st of March, 1784. From that time, except as to the reservations expressed in the deed, which in nowise affect the question here under consideration, Virginia had no more claim to, or jurisdiction over that territory, than any other State of the Union.

It is also claimed, that the act of the Legislature of Illinois of 1819, which was in force at the time of the death of Alonzo Redman, gave his estate, under the circumstances, to 'the next of kin,' and that applying the civil law interpretation to those terms, his mother was such 'next of kin,' and hence took an estate of inheritance in the land in question under that act. Breese's Reports, 136, Hays vs. Thomas, is relied upon as authority for this proposition. In that case, the principle was applied as between legitimate persons claiming under a legitimate decedent. The same remark applies to Hillhouse vs. Chester, (3 Day's Rep., 166;) which the case of Hays vs. Thomas followed.

'It cannot be pretended that the plaintiff is next of kin to Mary, if we give the same construction to the words which they have received in the English law.'

'It has always been held that, to ascertain who this person is, the computation is to be made according to the rules of the civil law.' 'Our statute, which directed that, in such an event, the estate of the intestate, both real and personal, should go to the next of kin, was enacted at a time when the aforesaid statute of Car. II, and the construction given to it, was perfectly known. It is a sound rule, that whenever our Legislature use a term without defining it, which is well known in the English law, and there has been a definite appropriate meaning affixed to it, they must be supposed to use it in the sense in which it is understood in the English law.'

The class of adjudications in England referred to were never claimed to affect the legal condition of bastards there. How can the same principle, decided in Hays & Thomas, have that effect in Illinois?

It is also claimed that the legal status of Alonzo Redman, at the time of his death, is to be determined by the civil and not by the common law; and it is insisted, that by the provisions of the civil law legitimate and illegitimate children stood upon a footing of equality. We have not deemed it necessary to examine the provisions of the civil law referred to, because, in our judgment, they have no application to the subject. When Alonzo Redman died, the common law of England was in full force in the State of Illinois.

The ordinance of 1787 guaranteed that 'judicial proceedings' in the Territory should be 'according to the course of the common law.' In 1795, the Territorial governor and judges adopted that law for the Territory.

By an act of the Legislature of Illinois, of the 4th of February, 1819, it was provided:

'That the common law of England, and all statutes or acts of the British Parliament made in aid of the common law prior to the 4th year of the reign of King James the 1st, excepting the second section of the sixth chapter of XLIII Elizabeth, the eighth chapter XIII Elizabeth, and ninth chapter XXXVII Henry VIII, and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered of full force until repealed by legislative authority.'

This act has been in force ever since its date:

3 Scam., 301, Penny vs. Little; idem, 120, Boger vs. Sweet; id., 396, Stewart vs. The People; 5 Gil., 130, Seeley vs. Peters.

The Wills act of 1829, section 47, that of 1845, section 53, and the act of 1853, all, by the clearest implication, recognise the heritable disabilities of the illegitimate in the absence of enabling statutes. Such is also the theory of the act of 1857.

By the rules of the common law, terms of kindred, when used in a statute, include only those who are legitimate, unless a different intention is clearly manifested. This is conceded by the counsel for the defendant in error. The proposition is too clear to require either argument or authority to sustain it.

The legal position of Alonzo Redman, at the time of his death, was what the common law made it. In the eye of that law, he was filius nullius. He had neither father, mother, nor sister. He could neither take from, nor transmit to, those standing in such relations to him, any estate by inheritance.

These views bring us to the conclusion that no title to the land in controversy was ever vested in Polly Norris, and none in Sophia Rand, nor in the plaintiff below, until the act of February 16, 1857, took effect.

This suit was commenced on the 2d day of July, 1855. Conceding that the act of 1857 vested in the defendant in error a valid title, can he recover in this action? The rule of the common law is inflexible, that a party can recover in ejectment only upon a title which subsisted in him at the time of the commencement of the suit. Johnson vs. Jones, decided at this term. So regardful has the State of Illinois been of this principle, that she has embodied it in a statute. Her ejectment act provides that—

'No person shall recover in ejectment unless he has, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover possession thereof, or some share, interest, or portion thereof, to be proved or established at the trial.'

If the plaintiff below can succeed in this action, it must be because the act of 1857 impliedly repeals this provision as to this case. If there were no such statutory provision, the act of 1857, being in derogation of the common law, would be construed strictly. 'A repeal by implication is not favored.' 'The leaning of the courts is against the doctrine, if it be possible to reconcile the two acts of the Legislature together.' Sedg. Stat. and Cons. Law, 127; 4 Gill and J., 1, Canal Co. vs. Railroad Co.; 5 Hill, 221, Bowen vs. Lease; 2 Barb. S.C.. R., 316, Williams vs. Potter.

We see nothing in the act of 1857 which indicates a purpose to contravene this common law principle and supersede this statutory provision as respects this action. It is possible to reconcile the two acts. It may well be that the Legislature intended to vest the title retrospectively for the purpose of giving effect to mesne conveyances and preventing frauds, without intending also to throw the burden of the costs of an action of ejectment, then pending, upon a defendant, who, as the law and the facts were at the commencement of the action, must have been the successful party. A stronger case than this must be presented to induce us to sanction such a result by our judgment. If the plaintiff below can recover, it must be in action brought after the 16th of February, 1857. He cannot recover upon a title acquired since the commencement of this suit.

In holding otherwise, the court below committed an error.

Several other very important questions have been discussed by the counsel of the parties. We have not considered them, and intimate no opinion in regard to them.

The judgment below must be reversed, and the cause remanded, with instructions to enter a judgment for the plaintiff in error upon the special verdict.

title: McCool v. Smith./Opinion of the Court


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


text:
Verden v. Coleman (66 U.S. 472)

Writ of error to the Supreme Court of Indiana.

Coleman filed a bill in equity against Verden in the Benton county circuit, Indiana, to foreclose a mortgage. The complainant set out a note given by Verden to him for $2,315, and a mortgage on six pieces of land to secure its payment, and prayed a decree of foreclosure. The defendant, in his answer, admitted the making of the note and the execution of the mortgage; and set up, by way of avoidance, the following facts: That he purchased, at the time the note and mortgage were given, six pieces of land, five from the complainant and one from Samuel Coleman, for the gross sum of $4,315, of which he paid down $2,000, and gave the note and mortgage to secure the balance, $2,315. The whole six lots were included in the mortgage, and the whole constituted one transaction. But the defendant alleged, that for one of the six lots, the value of which alone was greater than the sum specified as due on the note and mortgage, he had got a worthless title. The title which he got rested upon a patent given to one Hewett in 1841, as a pre-emptor. He alleged that the land patented to Hewett had been reserved by the treaty of 1832 with the Pottawatomie Indians, to one To-pen-na-be, a member of the tribe, and that previous to the date of Hewett's preemption title the President of the United States had selected and located the tract in question and assigned it to the Indian to whom it legally belonged at the date of the patent. The defendant set out the documents upon which To-pen-na-be's title rested. In reply, the complainant insisted that Hewett acquired the legal title as pre-emptor, and that To-pen-na-be acquired none by the treaty and the proceedings had under it. He set out the documents upon which the Hewett title rested. The defendant demurred to the replication, but the demurrer was overruled and a decree of foreclosure entered. He appealed to the Supreme Court of the State, where the decree was affirmed. He, thereupon, removed the cause to the Supreme Court of the United States by a writ of error under the 25th section of the judiciary act.

Mr. Gillet, of Washington city, and Mr. Mace, of Indiana, for plaintiff in error.

Mr. Baird, of Indiana, for defendant in error.

Mr. Justice GRIER.

title: Verden v. Coleman (66 U.S. 472)


text: Talk:Verden v. Coleman (66 U.S. 472)

title: Talk:Verden v. Coleman (66 U.S. 472)


text:
Verden v. Coleman (66 U.S. 472)/Opinion of the Court

Does this case come within the 25th section of the judiciary act?

The bill in the State court is for the foreclosure of a mortgage. The defence set up by the mortgagor was, that the consideration of the note which the mortgage secured was the purchase money of the land mortgaged; that the title to one of the tracts was through a patent of the United States to Hannamah Hewett; that this patent did not convey a good title, because in 1832 the United States concluded a treaty of purchase of a large tract of country with the Pottawatomie Indians; that by the terms of this treaty a section was reserved for an Indian named To-pen-na-be, to be located under direction of the President; that before the date of the patent to Hewett for this quarter section the whole section, including it, had been assigned to To-pen-na-be.

The patent was, nevertheless, granted to Hewett because of a prior equity by settlement.

The Supreme Court of Indiana decided that the patent to Hewett was a valid grant of the land. The decision will not bring the case within the 25th section. Nor can we claim it because of the title set up under the treaty with the Indians, because neither To-pen-na-be nor any one claiming under him is party to the suit.

This court has decided in the cases of Owings vs. Norwood, (5 Cranch, 344,) and of Henderson vs. Tennessee, (10 How., 311,) that 'in order to give jurisdiction to this court the party must claim that title under the treaty for himself, and not for a third person, in whose title he has no interest.'

This case is, therefore, dismissed for want of jurisdiction.


text: Talk:Verden v. Coleman (66 U.S. 472)/Opinion of the Court


text:
Franklin Branch Bank v. Ohio

Writ of error to the Supreme Court of Ohio. The State of Ohio, by Mr. Walcott, her Attorney General, brought suit in the Supreme Court of Franklin county against the Franklin Branch of the State Bank of Ohio, claiming the sum of $4,076 30, as due from the bank to the State for taxes assessed pursuant to an act of the Legislature, passed 5th April, 1859. The bank pleaded that the 60th section of the charter was a contractor, by which the State bound herself to levy no other or greater taxes on the State Bank or its branches than what are stipulated for in that section, and that the act of 1859, under which the taxes claimed in this case are assessed, is void, as being a violation of the contract. The plaintiff demurred. The court gave judgment against the defendant for the sum claimed. The defendant took the case into the Supreme Court of the State, where the judgment of the county court was affirmed. There upon the bank took this writ of error.

Mr. Stanbery, of Ohio, for the plaintiff in error.

No argument was made in this court for defendant in error.

Mr. Justice WAYNE.

title: Franklin Branch Bank v. Ohio


text: Talk:Franklin Branch Bank v. Ohio

title: Talk:Franklin Branch Bank v. Ohio