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Central Railroad and Banking Company v. Georgia/Opinion of the Court

By an act of the legislature of Georgia, enacted in 1833, a charter, unlimited in duration, was granted to 'The Central Railroad and Canal Company of Georgia,' with power to make, construct, and maintain a canal or railroad from the city of Savannah to the city of Macon. The seventh section was as follows: -

'The said canal or railway, and the appurtenances of the same, shall not be subjected to be taxed higher than a half per cent upon its annual net income.'

In 1835, by an amendment to the charter, the name of the company was changed to 'The Central Railroad and Banking Company of Georgia;' its capital stock was declared to consist of $3,000,000: and the eighteenth section of the amendment enacted that 'the said railroad, and the appurtenances of the same, shall not be subjected to be taxed higher than one-half of one per centum upon its annual net income; and no municipal or other corporation shall have the power to tax said company, but may tax any property, real or personal, of the said company, within the jurisdiction of said corporation, in the ratio of taxation of like property.' Under this latter act the company was organized in 1836, and proceeded to build the railroad. By subsequent enactments, the capital stock was increased to $5,000,000, and the company was authorized to build its road into Macon.

In 1847, the legislature of the State, by a statute approved Dec. 27, 1847, incorporated 'The Macon and Western Railroad Company,' with power to build a railroad from Macon to Atlanta.

The charter contained no exemption from taxation, and affixed no limits to it. An amendment, however, was made to the charter by an act approved Feb. 9, 1869, and assented to by the company, by which authority was given to increase the capital stock to $2,500,000; and the chartered rights of the company were continued during the term of thirty years from its passage. The amending act contained the following proviso:--

'Provided, nevertheless, that such additional stock as may be issued, as well as the present stock of said company, shall hereafter pay the same annual tax to the State as the other railroad companies of this State now do; viz., one-half of one per cent on the amount of the net income.'

Under this charter the railroad was constructed to Atlanta. Thus the western terminus of the Central Railroad and Banking Company of Georgia, and the eastern terminus of the Macon and Western Railroad, were both fixed at Macon.

On the twenty-fourth day of August, 1872, the legislature passed an act authorizing the union and consolidation of the two railroad companies, under the name andc harter of the first named, 'The Central Railroad and Banking Company of Georgia.' As the true meaning and effect of this act is the basis of all the questions presented by the case, we quote the first section entire:--

'Be it enacted by the general assembly of the State of Georgia, that the Macon and Western Railroad Company, and the Central Railroad and Banking Company of Georgia, be, and they are hereby, authorized and empowered to unite and consolidate the stocks of the said two companies, and all the rights, privileges, immunities, property, and franchises belonging or attaching to said companies, under the name and charter of the said 'The Central Railroad and Banking Company of Georgia,' in such manner that each and every owner and holder of shares of the capital stock of the Macon and Western Railroad Company shall be entitled to and receive an equal number of shares of the capital stock of the consolidated companies: Provided, that nothing herein contained shall relieve or discharge either of said companies from any contract heretofore entered into, but that all such contracts shall be assumed by, and be binding on, the Central Railroad and Banking Company of Georgia, and all benefits and rights under the same shall accrue to, and vest in, the said last-mentioned company: And provided further, that, upon such union and consolidation, the capital stock of the Central Railroad and Banking Company of Georgia shall not exceed the amount of the authorized capital thereof, and the present authorized capital of the Macon and Western Railroad Company added thereto.'

The second section enacted, that the union and consolidation provided for should not take place until at least two-thirds of the stockholders of each company assented thereto.

By the third section it was enacted, that when it should be ascertained, in the manner provided, that the assent required in the second section had been given, it should be the duty of the board of directors of each company to complete said union and consolidation, and to certify the same under the corporate seals of said companies, to the governor of the State, to be filed in the office of the Secretary of State.

The fourth section is as follows:--

'Be it further enacted, that upon the union and consolidation herein provided for, each stockholder in the Macon and Western Railroad Company shall be entitled to receive a certificate of stock as a shareholder in the Central Railroad and Banking Company of Georgia for a like number of shares, upon the surrender of his certificate of stock in the former company, which new certificate shall entitle the holder thereof to the same rights, privileges, and benefits as attach to the holders of stock now held by the shareholders in said companies, or either of them.'

Under the provisions of this act, and in the manner prescribed, the two companies united, the stock of the Central Company being at the time $5,000,000, and that of the Macon and Western being $2,500,000.

Such was the legal status of the Central Railroad and Banking Company on the twenty-eighth day of February, 1874, when the legislature passed an act entitled 'An Act to amend the tax-laws of the State so far as the same relate to railroad companies, and to define the liabilities of such companies to taxation, and to repeal so much of the charters of such companies, respectively, as may conflict with the provisions of this act.' The act required from each company an annual return to the comptroller-general of the value of its property, without deducting indebtedness, each class or species of property to be separately named and valued, to be taxed as other property of the people of the State. It also required the railroad companies to pay the taxes assessed upon them, and it repealed conflicting laws. Pursuant to this act of 1874, the comptroller-general assessed a tax of $46,034.87 against the Central Railroad and Banking Company, and issued an execution to collect it. The company then paid the tax of one-half of one perc ent required by the prior law, and instituted proceedings in the mode provided by the statute to resist the exaction of the remainder of the tax assessed, on the ground that by its charter it was not subject to be taxed higher than one-half of one per centum of its annual net income, and that the tax-law of 1874 impaired the obligation of its contract with the State. Having failed in the State courts, the case has been brought here for review.

It is not denied that, by the provisions of the charter granted in 1833, amended in 1835, and accepted by the Central Railroad and Banking Company, a contract was made that the company should not be taxed higher than one-half of one per cent upon its net income. Nor is it denied that the protection thus promised was as perpetual as the existence of the company itself. But it is contended on behalf of the State that the charter granted in 1833, and amended in 1835, was surrendered by the union and consolidation of the company under the act of 1872 with the Macon and Western Railroad Company; that the company is now existing under a charter granted by the latter act, a charter which is subject to repeal or modification at the will of the legislature; and, therefore, that the act of 1874, which imposes a more onerous tax than one-half of one per cent on the net income, is a violation of no contract, but that it is a legitimate exercise of legislative authority.

If it could be admitted, as contended by the State, that the charter granted in 1835 is no longer in existence, if in fact and in law it was surrendered in 1872, and if the 'Central Railroad and Banking Company of Georgia' is a new corporation, created when it united with the Macon and Western Railroad Company, the consequences claimed by the State might, and probably would, follow. The Code of Georgia, which went into operation Jan. 1, 1863, has the following provisions:--

SECT. 1682. 'In all cases of private charters hereafter granted, the State reserves the right to withdraw the franchise, unless such right is expressly negatived in the charter.'

SECT. 1683. 'Private corporations heretofore created, without the reservation of the right of dissolution, and where individual rights have become vested, are not subject to dissolution at the will of the State.'

Chartered rights granted subsequent to the Code may, therefore, be withdrawn. It is equally certain that those granted before Jan. 1, 1863, cannot be impaired by any legislative act.

Hence, it is of vital importance to this case to examine the effect of the union of the two companies, under what is called 'the consolidation act of the legislature,' of Aug. 24, 1872. Did the act contemplate a surrender of its charter by the Central Railroad and Banking Company, and the grant to it of a new charter, or a re-grant of the old? It may be that the consolidation of two corporations, or amalgamation, as it is called in England, if full and complete, may work a dissolution of them both, and its effect may be the creation of a new corporation. Whether such be the effect or not must depend upon the statute under which the consolidation takes place, and of the intention therein manifested. If, in the statute, there be no words of grant of corporate powers, it is difficult to see how a new corporation is created. If it is, it must be by implication; and it is an unbending rule that a grant of corporate existence is never implied. In the construction of a statute, every presumption is against it. True it is that in McMahan v. Morrison, 16 Ind. 172, where three corporations had consolidated under an act of the legislature, authorizing them to merge and consolidate their stock 'and make one joint company,' it was said that the effect of the act and the terms of consolidation under it was a dissolution of the three corporations, and at the same instant the creation of a new corporation with property, liabilities, and stockholders derived from those then passing out of existence. And this language was quoted approvingly by this court in Clearwater v. Meredith, 1 Wall. 40. But in neither case was an assertion of this doctrine necessary to the decision made. The first was a suit against the consolidated company on a claim against one of the old companies, and the other was a suit by a party who had consented that the stock of a railroad company should be merged and consolidated with that of another company, against one who had guaranteed that the stock should be worth a certain price at a fixed time. After having consented that the stock thus guaranteed should be consolidated with other stock, he was not permitted to recover. And, indeed, we find no case decided in this country where the question directly arose, or was necessarily determined. There are numerous cases where a consolidated company has been held liable for the debts of the old companies, and where it has been held to possess the rights of the old companies; but this does not necessarily imply a surrender of all the old charters. So there are cases where it has been held that a consolidation cannot be consummated against the consent of a stockholder in one of the companies unless his stock is purchased. This, however, may be doubted as applicable to all cases; but, if universally true, it leaves open the question, whether the consolidation is the creation of a new company. Lanman v. The Lebanon Valley R. R. Co., 30 Penn. 46, was a bill by a stockholder for an injunction against consolidation; and all that was decided was, that his interest must be protected before consolidation could take place. We are not called upon, however, now to determine whether a consolidation, effected under a statute making no express grant of new corporate existence, may not, in some cases, work a dissolution of the existing corporations, and at the same time the creation of a new company; for, in the present case, we think the act of 1872 plainly contemplated no such thing. It is true, the act speaks of union and consolidation. It authorizes the two companies to unite and consolidate their stock, and all their rights, privileges, immunities, property, and franchises; but it prescribes the manner in which this may be done, and its effect. It is to be done under the name and charter of the Central Railroad and Banking Company; that is, the union is to be under that charter, not under a new charter of a company bearing that name. The union is also to be in such a manner that every holder of the shares of the capital stock of the Macon and Western Railroad Company shall be entitled to, and shall, on the surrender of their certificates, receive, an equal number of shares of the capital stock, as a shareholder in the Central Railroad and Banking Company of Georgia, as declared in the fourth section. But there is no provision for a surrender of the certificates of stock of the shareholders of the Central, and none for the issue of other certificates to them. Their rights, whatever they may be after the union, are evidenced only by certificates of stock of the company chartered in 1835. If that charter has gone out of existence, they are stockholders in no company. Again: the act declared that all contracts of either of the companies should be assumed by and binding on the Central Railroad and Banking Company, and all benefits and rights under the same-that is, under the contracts-should vest in that company, not in a new corporation then springing into life. Nowhere in the act is there an intimation of any legislative purpose that the Central Railroad Company should cease to exist. The Macon and Western Railroad Company was undoubtedly intended to go out of existence: for provision was made for the surrender of all the shares of its capital stock; and without stockholders it could not exist. The existence of such a provision in regard to the one company, and its absence in regard to the other, is a strong argument in support of the conclusion that it was not intended the Central Railroad and Banking Company should surrender its charter, or dissolve. And still more, that company wasa uthorized to increase its capital, plainly for the purpose of making room for the new shareholders entitled to come in by virtue of their ownership of shares of the dissolved company's stock. The language of this provision is significant. It is, that, upon the union and consolidation, the capital stock of the Central Railroad and Banking Company 'shall not exceed the amount of the authorized capital thereof, and the present authorized capital of the Macon and Western Railroad Company added thereto.' This refers plainly to the corporation which it was contemplated should exist after the union and consolidation of the two companies. What, then, was intended by the expression 'authorized capital thereof;' that is, authorized capital of the Central Company? Had this reference to a new company? Certainly not; for no new company had any authorized capital. It must have referred, therefore, to the old Central Railroad and Banking Company, in existence when the act was passed; and that was the company the amount of whose stock was to be limited after the union had taken place. That company was to continue in existence, and its capital was restricted to the amount of what had been previously authorized, augmented by a sum equal to the capital of the absorbed company. This view is confirmed by the language of a subsequent act of the legislature, enacted Feb. 20, 1873, the preamble of which is, 'Whereas, the recent union and consolidation of the Macon and Western Railroad Company with the Central Railroad and Banking Company of Georgia, under the name and charter of the latter company, has largely increased the capital stock, and the number of stockholders of the said last-named company.' What company was it whose stock had been increased by the union? Plainly, one that was in existence before the union, the one under whose charter the companies had united. The stock of no new company had been increased. It is clear, therefore, that the legislature of 1873 did not understand that the old Central Company had gone out of existence.

If, then, this construction of the act of Aug. 24, 1872, be correct (and we cannot doubt that it is), that act contemplated and authorized no such union and consolidation of the two companies as should work a surrender of their charter by both of them, and the creation of a new company. At most, it intended a merger of the Macon and Western Railroad Company into the other, a mode of transfer of that company's franchise and property, and a payment therefor with stock of the Central Company. It is of no importance to the inquiry, whether a new corporation was created by the union and consolidation, that the Central acquired under the act new and enlarged powers as well as new stockholders. It was authorized to own and operate a railroad from Macon to Atlanta; to operate it as its own. It was also authorized to increase its capital stock. But the gift of new powers to a corporation has never been thought to destroy its identity, much less to change it into a new being. Such a gift is not a grant of corporate existence. It assumes corporate life already existing. Nor is it a necessary inference from the provision of the act of Aug. 25, 1872, requiring the board of directors of each company to certify the union and consolidation to the governor of the State, that the union was intended to be a surrender of the charter of both companies, and the acceptance of a new charter. There were sufficient reasons for that requirement, without the large inference attempted to be drawn from it. They were, that it might appear in the office of the Secretary of State that the Macon and Western Railroad Company was no longer in existence, and that the capital stock of the Central Company had been increased.

Our opinion, therefore, is, that the charter granted to the Central Railroad and Banking Company of Georgia, by the act of 1835, was not surrendered by its action under the later act of 1872; that it still has all the rights that were originally conferred upon it, holding them n der the charter originally granted to it; and, consequently, that it is not in the power of the legislature to impose upon it a greater tax than one-half of one per centum of its net annual income.

It is still to be determined, however, whether the exemption from a higher tax applies to that portion of the company's property which was the road and franchise of the Macon and Western Railroad Company before its merger into the Central Railroad and Banking Company. The Macon and Western never had any contract with the State limiting its liability to taxation. Its original charter said nothing upon the subject, and the amending act of Feb. 9, 1869, gave it no exemption. It simply provided that the company should thereafter pay the same annual tax to the State as the other railroad companies then did; to wit, one-half of one per cent on the amount of net income. It contained no negative words. It did not declare that higher taxation should not be imposed at any future time. At most, it raised only an implication that a higher tax would not be levied for the State. But it is a well-settled principle that a claim for exemption from taxation cannot be supported, unless the statute alleged to confer it is so plain as to leave no room for controversy. No presumption can be made in support of the exemption; and, if there be a reasonable doubt, it must be resolved in favor of the State. Bailey v. Maguire, 22 Wall. 215; Delaware Railroad Tax, 18 id. 206. In the latter of these cases, it was ruled that a provision in a charter, requiring a company to pay annually into the treasury of the State a tax of one-quarter of one per cent upon its capital stock of $400,000, did not prevent a subsequent legislature from imposing a further or different tax upon the company. To the same effect is The Commonwealth v. The Easton Bank, 10 Penn. St. 451.

If, then, there was nothing in the charter of the Macon and Western Railroad Company by which its property was exempted from such taxation as the legislature might see fit to impose, did the union and consolidation with the Central Company bring it within the exemption which the Central enjoyed? We think it did not. Nothing within the act of Aug. 24, 1872, indicates that such was the intention of the legislature, and it is not a necessary result of the consolidation authorized. The obvious purpose of the act was to vest in the Central Company the rights, privileges, immunities, property, and franchises which had belonged to the Macon and Western Company; not to enlarge those rights, or to bestow new immunities. If, therefore, the Macon and Western held its franchises and property subject to taxation, the Central, succeeding to the franchises and property, holds them alike subject. It took them just as they were, acquiring no additional or enlarged rights as against the State. The case of The Philadelphia & Wilmington Railroad Co. v. Maryland, 10 How. 376, in its leading features is not unlike the one now before us. There, three railway companies were united and incorporated into one, in pursuance of statutory authority. One of the companies was by its charter partially exempted from taxation; and the law which authorized the union of the three companies declared that the new corporation should be entitled to all the powers and privileges and advantages belonging to the uniting companies. In construing this provision of the consolidating act, this court ruled, that as the constituent companies held their corporate privileges under different charters, the evident meaning of the provision was, that whatever privileges and advantages either of them possessed should in like manner be held and possessed by the new company, to the extent of the road they had respectively occupied before the union; that it should stand in their place, and possess the powers, rights, and privileges they had severally enjoyed in the portions of the road which had previously belonged to them, and be subject to the liabilities that rested upon them during their sp arate existence. A similar decision was made in The Delaware Railroad Tax Case, 18 Wall. 206. So in Tomlinson v. Branch, 15 id. 460, the same doctrine was maintained. Two railroad companies, the one exempt from taxation and the other not exempt, were authorized to unite, so that the latter should merge into the former; and the statute declared that thereafter all the rights, privileges, and property of the latter should be vested in the former, and that the former should be liable for all the debts and contracts of the latter. Under the statute, the union was consummated: and the question arose, whether the railroad property and works which had belonged to the company not exempt from taxation were exempt under the charter of the other after the union; and this court held that they were not. The case is hardly to be distinguished from the present, and it leads directly to the conclusion that the property and franchises formerly belonging to the Macon and Western Railroad Company (now converted into $2,500,000 of the stock of the Central Railroad and Banking Company) has no well-founded claim to exemption from such taxation as it is now argued the legislature is forbidden by the Federal Constitution to impose. It is not protected by any contract with the State. That property, by the articles of union between the two companies, sanctioned by the legislature, amounts to one-third of the entire property of the company which survived the union, and to that extent, to that extent only, is it taxable at any greater rate than was stipulated in the charter of the Central Railroad and Banking Company granted in 1835.

The judgment of the Supreme Court must, therefore, be reversed, and the record be remitted, with instructions to reverse the order of the Superior Court, and direct further proceedings in accordance with this opinion.

NOTE.-South-western Railroad Company v. Georgia, error to the Supreme Court of the State of Georgia, was argued by the counsel who appeared in the preceding case.

MR. JUSTICE STRONG delivered the opinion of the court. What we have said in Central Railroad & Banking Company v. Georgia, is applicable, in its largest extent, to the present case. It appears from the record that the South-western Railroad Company, chartered in 1845, with an exemption from taxation beyond one-half of one per cent of its annual net income, was united with the Muscogee Railroad Company, a company entitled by its charter to a similar exemption. The union was effected under an act of the legislature, approved March 4, 1856, the effect of which was to extinguish the Muscogee Company by its merger in the South-western. No new corporation was created by the union of the two companies; but the powers of the South-western were enlarged, and all the rights, privileges, and property of the Muscogee Railroad Company became the rights and property of the South-western. The exemption from taxation, which both the companies enjoyed under their original charters, cannot, therefore, be withdrawn by the legislature, and it is unaffected by the tax-laws of 1874.

The judgment of the Supreme Court is reversed, and the record is remitted, with instructions to reverse the order of the Superior Court.


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text: South-Western Railroad Banking Company v. Georgia


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Vol. XXXI.]

minutes of the last meeting were read and confirmed.

The election of Mr. S. Pararnesvara Aiyar, Mrs. Burgess and Mr. M. H. Picton-Keogh as members of the Society was announced. The enrolment of Firma K. L. Noording (Groningen), Paris École Normale Gupeneuve, and the Tottenham Public Library as subscribers was also announced.

Mr. F. C. Bartlett read a paper entitled “Some Experiments in the reproduction of Folk Stories”; and in the discussion which followed, the President, Mr. Wright, Miss Hull, Miss Moutray Read, and Professor Baudis took part.

The meeting terminated with a hearty vote of thanks to Mr. Bartlett for his paper. Rh

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South-Western Railroad Banking Company v. Georgia/Opinion of the Court

MR. JUSTICE STRONG delivered the opinion of the court. What we have said in Central Railroad & Banking Company v. Georgia, is applicable, in its largest extent, to the present case. It appears from the record that the South-western Railroad Company, chartered in 1845, with an exemption from taxation beyond one-half of one per cent of its annual net income, was united with the Muscogee Railroad Company, a company entitled by its charter to a similar exemption. The union was effected under an act of the legislature, approved March 4, 1856, the effect of which was to extinguish the Muscogee Company by its merger in the South-western. No new corporation was created by the union of the two companies;b ut the powers of the South-western were enlarged, and all the rights, privileges, and property of the Muscogee Railroad Company became the rights and property of the South-western. The exemption from taxation, which both the companies enjoyed under their original charters, cannot, therefore, be withdrawn by the legislature, and it is unaffected by the tax-laws of 1874.

The judgment of the Supreme Court is reversed, and the record is remitted, with instructions to reverse the order of the Superior Court.


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Branch v. City of Charleston

APPEAL from the Circuit Court of the United States for the District of South Carolina.

In City of Charleston v. Branch, 15 Wall, 470, the decree of the Circuit Court of the United States for the District of South Carolina was reversed, and the record remitted with instructions to proceed in conformity with the opinion of this court.

The Circuit Court ordered a special master to report:--

1st, What property of the South Carolina Railroad Company was acquired by it for the accommodation of the business of its original roads, or for the joint accommodation of the entire system of roads under its control; and of such property, how much, and in fair proportion, should be exempt from taxation.

2d, What property of the South Carolina Railroad Company has been acquired by it directly under its own charter, and for purposes connected with its original road, that such property may be decreed exempt from taxation.

3d, What property, if any, besides that not directed to be apportioned, and that acquired by the South Carolina Railroad Company under its own charter, and belonging to the South Carolina Railroad Company, is exempt from taxation.

The master reported that:--

'The real estate within the present limits of the city of Charleston, now owned by the South Carolina Railroad Company, consists of two separate and well-defined parcels of land. The first is a long, narrow strip of land, lying between Meeting and King Streets, and extending from Hudson Street to the northern boundary of the city. Upon this, the d ep ots, shops, yards, and railroad tracks of the company are located. This property embraces:--

'1st, Various lots, purchased by the South Carolina Canal and Railroad Company, prior to December, 1837, and vested in the South Carolina Railroad Company by the act of 1843. This property cost $25,205, and this was probably its value when acquired by the South Carolina Railroad Company. Its present assessed value is $99,600. This increased value of $74,395 is entirely owing to the workshops, d ep ots, and other improvements which have been put upon the land by the South Carolina Railroad Company since 1843, the value of all other lands in the city having, in the mean time, greatly depreciated. According to the testimony of Mr. Magrath, the president of the road, all the d ep ots and other buildings existing prior to that time have been entirely destroyed or removed, and replaced by others of a far more costly and substantial character.

'2d, Various lots, purchased by the Louisville, Cincinnati, and Charleston Railroad Company, between December, 1837, and February, 1843. The lots are now valued in the aggregate at $2,300.

'3d, Various lots, purchased by the South Carolina Railroad Company since 1814, and now valued at $177,400.

'Prior to 1849 all of this land was without the corporate limits of the city of Charleston. By the act passed on the nineteenth day of December, 1849, the city limits were extended, and then they took in, for the first time, the property of the South Carolina Railroad Company.

'The second parcel of land belonging to the company lies in the eastern portion of the city, on Cooper River. It consists of various lots, purchased by the South Carolina Railroad Company between the years 1853 and 1870. Its present value is $94,900. The history of this purchase is as follows: The South Carolina Canal and Railroad Company was not u thorized to cross the limits of the city. It had only power to come to the boundary line of the city, and the city council were authorized to permit the extension of its road through the public streets and lands of the city. (A.A. 1832.) In 1840, the legislature authorized the South Carolina Railroad Company to extend their road to some one or more of the wharves in Charleston (A.A. 1840); and, in 1845, adopted a joint resolution, declaring that they regarded it as highly desirable that the company should forthwith lay down a track to connect the depot with the wharves of Charleston in such manner as might afford free access and competition to all.

'The evidence shows that the property in the eastern part of the city was purchased to carry out that purpose, and that it is the intention of the company to locate its d ep ots at that point as soon as the means to make the connection can be raised. Though not in actual use, there is no doubt that this property has been acquired by the South Carolina Railroad Company for the joint accommodation of the entire system of roads under its control. This is also true of all the other property (with an inconsiderable exception) now owned by the South Carolina Railroad Company, whether purchased from the South Carolina Canal and Railroad Company or other parties. The whole property which can, with any propriety, be said to have been purchased by the South Carolina Railroad Company directly under its own charter, for purposes connected exclusively with its original road, is the property purchased by it under the name of the Louisville, Cincinnati, and Charleston Railroad Company before 1843, and when the union of that company and the South Carolina Canal and Railroad Company had not been thought of. And this propery, even if it is properly to be regarded as having been purchased exclusively for the South Carolina Railroad, ceased to be so used after 1873, and from that time to the present has been used for the joint accommodation of the entire system of roads.

'I am, therefore, of opinion that all the property set forth in the schedule as having been owned by the South Carolina Canal and Railroad Company, with the appendages and appurtenances thereof, as they existed at the time of the transfer to the South Carolina Railroad Company, are liable to taxation. I find that the value of this property at that time was $25,205, its cost price, and that the increased value given to it by the d ep ots, workshops, railroad tracks, and other improvements since put upon it by the South Carolina Railroad Company, is $74,395. These improvements come under the category of property acquired by the South Carolina Railroad Company under its own charter, and must be taxed accordingly.

That of the company's property in Charleston, acquired by the South Carolina Railroad under its own charter, for the joint accommodation of the entire system of roads under its control, so much as is properly apportionable and applicable to that part of the line which extends from Branchville to Columbia and Camden, is exempt from taxation. This applies to all property purchased by the South Carolina Railroad Company since 1843. Its value, including the improvements put upon the land purchased from the South Carolina Canal and Railroad Company, is $346,695.

'What proportion of this property should be exempt from taxation? The length of the road is the only mode which has been suggested by either side of estimating this.

'The length of the road from Charleston to Hamburg is one hundred and thirty-six miles; from Branchville to Columbia, sixty-eight miles; and from Kingville to Camden, thirty-eight miles. If, therefore, I am right in supposing that it was the intention of the Supreme Court to exclude the South Carolina Railroad Company from exemption from taxation, in reference to that portion of the road acquired from the South Carolina Canal and Railroad Company, which extends from Charleston to Branchville, and which is now used jointly by the two roads, 106-242 of this property is exm pt from taxation.

'The personal property owned by the company within the city limits is appraised at $45,750. It was all acquired by the South Carolina Railroad Company, under its own charter, for the joint accommodation of all the roads under its control; and the same rule must be applied to it as has been adopted in reference to the real estate similarly acquired.'Exceptions were filed to the report of the master by both the plaintiffs and defendants. A supplemental report was filed by the master, which embraced the testimony of the president of the South Carolina Railroad Company, which was to the effect that all the tracks below Mary Street must have been constructed by the South Carolina Railroad Company. All the rails now on the track between Line Street and Mary Street were laid by the South Carolina Railroad Company. The cross-ties now on the track were also put there by the South Carolina Railroad Company, as was every thing connected with the track.

The following decree was thereupon passed by the court:--

'This case came up on the report of the special master, and the exceptions thereto on the part of the plaintiffs and the defendants, and the report thereon.

'The master reports that the various lots of land purchased by the South Carolina Canal and Railroad Company, prior to December, 1837, and vested in the South Carolina Railroad Company by the act of 1843, are taxable in toto only in the condition in which they passed into the hands of the latter company, and that the improvements which have been put upon the land by the South Carolina Railroad Company since 1843 come under the category of property acquired by the South Carolina Railroad Company under its own charter, and so taxable only pro tanto. To this ruling the city council excepts, and claims that all the improvements on the land, in the shape of d ep ots, workshops, railroad tracks, & c., before or since 1843, must be held taxable, inasmuch as said improvements are superstructures and fixtures upon the said lands, and not separable therefrom. I am of opinion that so much of this exception as refers to the d ep ots, workshops, and other buildings, erected by the South Carolina Railroad Company, on the lands acquired from the South Carolina Canal and Railroad Company, is well taken, and so much of the master's report as holds that these improvements, valued in the report at $74,395, are taxable only pro tanto, is overruled. I am satisfied by the evidence that the tracks and sidetracks within the city limits have all been replaced by the South Carolina Railroad Company since 1843, and are used for the joint accommodation of the united system of roads under its control, and are, therefore, taxable only pro tanto, according to the standard reported by the master. The same rule is also to be applied to the stationary engines, tools, machinery, &c., reported by the master as of the value of $20,750.

'All other exceptions by plaintiffs and defendants are overruled, and the report of the master, except as herein above modified, is confirmed and made the decree of the court.'

From which decree both parties appealed to this court.

Mr. A. G. Magrath and Mr. James Conner for Branch et al.

Mr. D. T. Corbin, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Branch v. City of Charleston


text: Talk:Branch v. City of Charleston

title: Talk:Branch v. City of Charleston


text:
Branch v. City of Charleston/Opinion of the Court

These cases require but very little discussion, as they have already been before the court and substantially settled in Tomlinson v. Branch and City of Charleston v. Branch, reported in 15 Wall., pp. 460, 470. The result to which we came in those cases was substantially this: that the respective roads and the property of the two companies, which had become consolidated in the hands of the South Carolina Railroad Company,-namely, that of the Canal and Railroad Company, and that of the Louisville and Charleston Railroad Company,-respectively retained their original status towards the public and the State, the same as if they had not been consolidated under a i ngle proprietorship. As one of these roads has become taxable, and the other has not, the rights of the State and the public growing out of this accidental diversity may sometimes raise questions of some embarrassment. This occasions the only difficulty remaining to be solved in these cases. From Branchville to Charleston there is but one road, and that is a part of the original road of the Canal and Railroad Company, used in common for the accommodation of both branches of the property. The Louisville and Charleston Railroad Company had a chartered right to extend their road to Charleston, but were met by the exclusive privileges of the elder company; and hence the purchase of its property and the ultimate consolidation. Now, the fact that the elder company had this exclusive privilege, shows that, even if the consolidation had not taken place, the old road would have continued to do the work of both companies between Branchville and Charleston, and this part of the line would have been now subject to taxation. It does not follow, therefore, that this part of the road, though used for the accommodation of both branches, should be regarded as divisible into proportional parts, one subject to taxation, and the other not. It is to be regarded as simply the road and property of the old company; in the hands of the new company it is true, but subject to all the liabilities of its original charter. Hence we held that the entire line of road between Branchville and Charleston is subject to taxation; and that prima facie the railroad terminus and depot in Charleston and the property accessory thereto belong to the elder portion of the joint property. But inasmuch as the charter right of the present company extended to Charleston, we further held, that if it could be fairly shown that any of the company's property there was acquired by the present company for the accommodation of the business belonging to its original roads, or for the joint accommodation of the entire system of roads under its control, such property would, pro tanto and in fair proportion, be exempt from taxation. This was intended to meet the case of such property as the present company might have acquired in Charleston, either separately or in conjunction with the old company, had no consolidation taken place, and had the line between Branchville and Charleston, used by both, remained the property of the old company. Of course, in carrying out this principle, any repairs or improvements made on the old line or the property of the old company would become a part thereof, and be subject to taxation. But newly acquired property might not be. This is the general principle. The method of carrying it out in detail admits of some latitude for the exercise of deliberation and judgment. We have examined the report of the special master to whom the matter was referred, and the review of that report by the court below, and we think that a result was reached corresponding in the main to the principle which we have endeavored to establish. There is but one item which we regard as calling for any interference with the decree appealed from; that is the item of $25,000 for replacing the tracks and side-tracks within the city limits, which we think fairly belongs to the old road, and should have been taxed in toto, and not pro tanto.

With this modification, decree affirmed.


text: Talk:Branch v. City of Charleston/Opinion of the Court


text:
Garsed v. Beall

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

The case was argued by Mr. Robert Toombs for the appellant, and by Mr. Benjamin H. Hill for the appellee.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Garsed v. Beall


text: Talk:Garsed v. Beall

title: Talk:Garsed v. Beall


text:
Garsed v. Beall/Opinion of the Court

Peculiar as the controversy is, it will be necessary to make some reference to the pleadings, in order to understand its origin, and the precise character of the questions presented here in the assignment of errors.

Two of the complainants-to wit, Jeremiah Beall and William A. Beall-claime, in the original bill of complaint, filed in the Superior Court of the State, to be joint owners with the other appellee, in equal proportions, of eight thousand six hundred and ninety-four bales of cotton; and the second complainant claimed that he was a joint owner with the aforesaid appellee, of the other parcel of cotton, consisting of one thousand one hundred bales: making, in all, nine thousand seven hundred and ninety-four bales of cotton, of the alleged value of $2,000,000. They not only claimed to be the owners of the cotton, in the proportions described, but they claimed that John Garsed and George Schley, therein named as respondents, had, at that date, commenced to seize and remove the same, for their own benefit, under some pretended military orders, and that Thomas S. Metcalf, the other part owner, was deterred, by fear of bodily harm, from making any effort to prevent such seizure and removal, or to join with them in asserting the plain and undoubted right of the described parties to the joint ownership of the property.

Suffice it to say, without entering into details, that the bill of complaint exhibits a detailed description of all the alleged pretences, and proceeds to allege that the same, one and all, are without any legal or equitable foundation whatever.

Two other parcels of cotton, it is admitted, were sold by said Metcalf to the first-named respondent; but the complainants allege that he never possessed any authority to sell any portion of the cotton in question, and they aver that he never did make any offer of the same to the respondent. Voluntary recognition of the pretended contract being refused, the respondent applied to the military authorities of the district to enforce the same; and it appears that the military authorities decided that the cotton had been sold to the respondent, as he claimed, and that they promulgated an order that the supposed contract of sale should be carried into effect.

Sufficient appears to warrant the conclusion that it was under that order that the respondents commenced to seize and remove the cotton; and it appears that the complainants contested the legality of that order, and prayed the court in which the bill of complaint was filed to restrain and enjoin the respondents from removing the cotton, and from all attempts to take possession of the same, and to abstain from all interference with the cotton until the final hearing of the cause.

Pursuant to the prayer of the bill of complaint, a temporary injunction was granted. Service was made, and the respondents appeared and filed separate answers.

Ownership of the cotton, as alleged in the bill of complaint, is admitted by the first-named respondent; but he sets up the defence that he purchased the same of the other respondent, and that the other respondent was authorized to sell the same by Thomas S. Metcalf, who was one of the joint owners. Detailed reply to every allegation of the bill of complaint is set forth in the answer, which need not be reproduced.

Apart from that, the respondent first named prayed that he may have the decree of the court in his favor, and alleged that it was evident that a recovery of damages in a suit at law, for and on account of the breach of the contract committed by the complainants, would not be an adequate compensation for the non-performance of the same; and he also prayed that the complainants may be ordered, by the decree of the court, to perform the contract, and if any thing prevents it, that they may be ordered, directed, and adjudged to respond in damages to the respondent, to an amount which will compensate him as fully as if specific performance of the contract had been completely carried into effect, and that the issues presented in the pleadings may be, fully and fairly, and without multiplication of actions, adjudicated between him and the complainants. Most of the allegations in the answer of the other principal respondent, so far as respects the pretended sale of the cotton, correspond with the allegations in the n swer of the first-named respondent. Metcalf was also made a party respondent, and he appeared and filed an answer, in which he admitted, in substance and effect, that the allegations of the bill of complaint were correct.

Proofs were taken on both sides, but the counsel of the complainants, in vacation, before the cause came to final hearing, filed a motion in the clerk's office, dismissing the suit, to which motion the first-named respondent objected. Hearing upon the objection was had, and the court finally decided that the bill of complaint was properly dismissed, but that the answer of the first-named respondent, being in the nature of a cross-bill, must, under the law of the State, be retained for the purpose of adjudicating the question of relief prayed therein by that respondent in the original bill of complaint, and that he, the respondent, by those allegations, made himself complainant, and that the complainants in the original bill thereby became and are made the respondents, as in a cross-bill. Attaway v. Dyer, 8 Ga. 189; Code (Ga.), sect. 4181.

Due application was subsequently made by the complainant in the cross-bill, that the cause be removed into the Circuit Court of the United States; and the record shows that the motion was granted, and that the order of removal was carried into effect, so far as respects the cross-bill, as constituted under the decision of the State court.

New pleadings, in such a case, should have been filed in the Circuit Court, and such, it would seem, were the views of the appellees, as they submitted a motion that the cause be not entertained in the Circuit Court; but the parties subsequently entered into stipulations, in respect to the conduct of the cause, which authorized the conclusion that all such objections are waived by the parties. Enough appears to warrant that conclusion, in the fact that proofs taken in the original suit were in some instances brought forward by stipulation, and made a part of the record in the Circuit Court; and in the more important fact, that the parties made respondents in the cross-bill appeared in the Circuit Court, and filed separate answers.

Reference will first be made to the answer of William A. Beall. He alleges that all the cotton, except the one thousand one hundred bales, was bought by Jeremiah Beall in his own name, under an arrangement between the purchaser and the other two respondents, that he, Jeremiah, should buy, store, and control, and dispose of the cotton in his own name, as if sole owner; that William A. Beall should negotiate loans for all the money needed, except what the purchaser might advance; and that the other respondent should give credit to the paper of the party contracting to furnish the money, or discount the notes of his firm for that purpose.

Subsequently, sales of the cotton purchased were to be made by the designated purchaser, as he should see fit; and the alleged stipulation was, that the proceeds of the sale should be applied to the extinguishment of the loans, and that the profits should be divided equally between the parties. Sales sufficient to pay all the loans contracted for the purchase of the cotton had been made, before the present controversy arose, except the advances made by the purchaser, and a few small debts, amounting in all to about $200,000; and the same respondent avers that his interest in the cotton, and that of the last-named appellee, were only silent interests in the accounts to be rendered on final settlement, the other party having the sole right and power of purchasing, preserving, and disposing of the cotton in his own individual name, as the sole owner.

Other defences are also set up in the answer, as follows: (2.) That Schely was not the agent of Metcalf, nor of himself, nor of the purchaser of the cotton; nor was he himself or Metcalf authorized to sell the same or any part thereof, nor to employ or appoint a broker or agent to sell or dispose of the same. (3.) That the appellant never purchased the cotton of any one, and that he well knw that neither Schley nor Metcalf possessed any authority to sell the cotton upon any terms whatever.

Separate answer was also filed by Jeremiah Beall, to the effect following: That all the cotton, except the one thousand one hundred bales, was purchased by him in his own name, and that it was in his sole and exclusive possession and control, and that neither of the other respondents had any authority whatever to sell or dispose of the same.

Appearance was also entered by Thomas S. Metcalf, in the Circuit Court, and he also filed an answer, in which he denied all the material allegations of the appellant in respect to the pretended purchase of the cotton, and averred, in the most explicit and positive manner, that he never offered to sell the cotton either to Schley or the appellant, as alleged by the latter in his answers to the original bill of complaint.

Voluminous proofs were taken by both parties in the Circuit Court; and on the 14th of May, 1869, it was ordered that the commission for taking testimony be closed, and that the cause be set down for hearing. Such hearing was subsequently had before the district judge, sitting in the Circuit Court; and he delivered and elaborate opinion, in which he discussed most of the matters of law and fact involved in the case, without announcing any final conclusion as to the rights of the parties. Instead of that, he entered an order in the cause, to the effect that certain prescribed issues, formally set forth in the transcript, should be tried by a jury, and prescribed certain rules and regulations to be observed by the parties in conducting the trial.

Pursuant to that order, a jury was subsequently called; and the transcript shows that the parties appeared, and that all the issues framed by the court were duly submitted to their determination. These issues were framed by the district judge, sitting in the Circuit Court; but the transcript shows that the circuit judge presided at the trial of the same, and that the jury, by their verdict, made a response to each issue. All of the findings were in favor of the respondents; and it appears that both the circuit and the district judges concurred in the final decree, which is, that the case be dismissed with costs, including the cross-bill. Immediate appeal was taken by the complainant, in the cross-bill, to this court.

Five principal errors are assigned, as follows: (1.) That the court below erred in dismissing the case, including the cross-bill. (2.) That the court erred in holding that there was no valid contract for the sale of the cotton. (3.) That the court erred in holding that the code of the State required that the authority of the alleged agent must be in writing. (4.) That the court erred in holding that the contract for the sale of the three parcels of cotton in this case was not an entire contract. (5.) That the court erred in not admitting the statement of the agent to prove that he received authority from Metcalf to sell the cotton in controversy.

Years of litigation have ensued since the original bill of complaint was filed in the State court, but the court here is unanimously of the opinion that the decision of the controversy must turn chiefly upon the issues of fact involved in the pleadings; and in that view of the case it becomes necessary to advert, with some more particularity, to the preliminary transactions out of which the controversy arose.

Cotton in bales to a very large amount was collected under the orders of a Confederate officer, and was piled in certain fields adjacent to the city of Augusta, to be burned in case our army should approach that city. Certain quantities of cotton belonging to the appellee Metcalf were collected for that purpose under those orders; but our army did not enter Augusta, and the cotton was left where it was deposited by the Confederate military forces. Of course it was much exposed; and Metcalf and Schley entered into an agreement by which the latter undertook to remove as much of the cotton belonging to the formera § he could, to a place of safety, and in consideration of such service he was to be entitled to one-third of the quantity so removed and saved. Twenty-five hundred bales were, by that contract and one other of a like character, saved to the owner, he being entitled to two-thirds of the cotton saved by the other parties to the contract.

How much time was consumed in the operation does not appear; but it does appear that the appellant was in Augusta about that time to buy cotton, and that Metcalf and Schley agreed to sell to him the cotton belonging to them which was saved by that contract. Schley and the appellant were acquainted; and it appears that the former offered the cotton to the latter, and that the latter desired to purchase it if he could have some indulgence, which was finally given him by Schley, in pursuance of an arrangement between the owners of the cotton.

Beyond controversy, that matter was amicably arranged; and it was during one of these interviews that Metcalf informed the appellant of the existence of another large lot of cotton, stored in the name of another party, in the south-western part of the State, in which he, the informant, as he represented, had an interest, and which, as the informant believed, could be bought in cash for the same price.

Evidence was also introduced which shows that Metcalf handed to Schley a memorandum in writing, touching that large lot, and that the lot therein described contained nine thousand seven hundred and ninety-four bales, and that the same was deposited or stored at the several places named in the memorandum exhibited in the transcript. Appended to the memorandum was the following: 'Believed to be in very good order as a whole lot, and to average five hundred pounds to the bale.' Speaking of the bales, he says, 'They belong to, and were bought by, a large planter in the south-west part of the State, and can this day be bought for twenty cents a pound in greenbacks. They are mostly crop-lots entire, and, therefore, are desirable for spinners, as cottons in that section are long-staple. There is not much doubt but that they can be had at that price a short time hence, if a buyer should come out with cash and go down and see the owner and the cotton.'

Authority to sell the large lot, it is manifest, is not there conferred; but Schley sets up in his answer that Metcalf, when he handed him the memorandum, gave him verbal authority to sell the large lot also to the appellant, and that he afterwards, on the same day, agreed that the terms of sale should be the same as the terms for the other lot. Written proof of that allegation is not exhibited; and Metcalf denies, both in his answer and in his testimony, that he ever gave Schley any such authority, and insists that he handed him the memorandum merely as information, which he might show to the appellant, to let him know where and from whom the large lot of cotton could be purchased; and he denies also that he himself had any authority to sell it, and he avers that he so informed Schley when he handed him the memorandum.

Opposed to that is the testimony of Schley; and it appears that his offer to the appellant was reduced to writing, dividing the cotton into three classes, in substance and effect as follows, stating in respect to class No. 1, that he controlled two thousand and eighty-nine bales of selected cotton, previously shown to the appellant, and which he offered to sell to him, to be reweighed and delivered at the gin-house where it then was, at twenty-five cents per pound, payable there in greenbacks; adding, 'you have the privilege to the 6th of July to close the trade by telegraph,' and that he, the seller, would wait for the money until he, the buyer, could reach there with it. What he said in respect to class No. 2 was, that he had six hundred bales of his own, of the same lot, which 'you can have for eighteen cents in gold, payable here as soon as you can return with it.' Both of those parcels were, undoubtedly, sold to the appellant, and they are not now inc ontroversy.

Class No. 3 is in controversy, and in respect to that the same party stated, in the same communication, that he also controlled, and would have authority to sell by the 3d of July, nine thousand seven hundred and seventy-eight bales of cotton, stored as therein specifically described, and that he would sell the same, delivered where stored, at twenty-three cents per pound, the cotton to be reweighed, and payable in greenbacks; adding as follows: 'This purchase secured after I telegraph you.' Late in the same afternoon Schley sent, by his servant, the following note to the appellant: 'Since you left town I saw the party controlling the large lot of cotton No. 3, and it is agreed that if you telegraph to take it they will ratify what I have agreed,' &c.

Three days later Schley informed Metcalf of the substance of the note sent by the servant to the appellant, and it appears that Metcalf promptly replied that he was misunderstood: that he had given no such authority. Whereupon Schley immediately sent a telegraph to the appellant, that he had misunderstood the parties in respect to lot No. 3, and requested him, if he still wished to purchase that lot, to say so by telegraph, and that he would answer if they would sell.

Conflicting testimony is exhibited in the transcript as to the precise period of time when the preceding telegram was received by the appellant; but it appears that he, on the 6th of the same July, telegraphed to his correspondent that he accepted lots 1, 2, and 3, and that gold and greenbacks would be sent by Adams Express in the next vessel, and directing his correspondent to forward the cotton. Schley, immediately on the receipt of that telegram, showed it to Metcalf, who repudiated so much of it as related to lot No. 3, and dictated the following answer, which Schley, without delay, sent to the appellant: 'Parties owning the nine-thousand-bale lot refuse to sell unless the funds are here.' 'If here to-day, the bargain could be closed, and probably can be on your arrival.'

Neither the gold nor greenbacks were shipped to pay for the three lots, as stated in the prior telegram; but it does appear that the contracts for lots 1 and 2 were subsequently closed, and that the amount was paid partly in money and partly in drafts.

Metcalf refused to deliver lot No. 3, and the appellant applied to the military authorities for an order to compel the delivery. Orders of the kind were at one time give; but it is unnecessary to discuss that topic, as the court is unhesitatingly of the opinion that the military authorities were entirely without jurisdiction in the premises, and that all such orders and the proceedings therein are absolutely null and void, which is all that need be said upon the subject.

Pending those proceedings, the original bill of complaint was filed, and the complainants obtained the writ of injunction, to which reference has already been made. On the 20th of September following all the military orders touching the cotton in controversy were revoked, and, four days later, the complainants proposed to dismiss the bill of complaint. Counsel were heard; and the court decided that the bill of complaint might be dismissed, but that the answer of the appellant must be retained, for the purpose and under the conditions heretofore sufficiently explained.

Controversies seldom arise where the proofs are more conflicting and irreconcilable than in the case before the court and that remark applies with all its force to the testimony of the parties as well as to many of the other witnesses. Taken as a whole, the court here is of the opinion that the case is one where it was quite proper that the Circuit Court should invoke the aid of a jury in settling the controverted matters of fact.

Feigned issues were accordingly framed, and ten questions were submitted to the jury, all of which appertain to the material matters of fact in dispute between the parties,-the two great questions being as follows: (1.) Whether the appellant ever purchased lo No. 3, either of Schley or of the owners, or either of them. (2.) Whether Schley ever had any authority to sell that lot, either from Metcalf or the other owners.

Presented as those questions were in every proper form to the jury, it will be sufficient to reproduce the findings of the jury without reqeating the questions, except in one or two instances. Considering the importance of the first question, it will be given in the form exhibited in the transcript:--

1. Whether there was a sale of lots 1, 2, and 3, by Schley to Garsed; and, if so, whether the contract of sale was intended by the parties to be one entire and indivisible contract.

Responsive to that question, the jury found that there was a sale of lots Nos. 1 and 2, but that there was no sale as to lot No. 3; and if there was a sale of lot No. 3, Schley had no authority from Metcalf to make the sale, and that it would have been a separate, unauthorized, and distinct sale.

They also responded to the second question, and found that the contract was not entire, and that as to lot No. 3, it was never confirmed or ratified by Metcalf.

Part of the third question is equally important, and in response to that the jury found that lot No. 3 was never sold; and if so, without authority from Metcalf. Consequently it was not sold at a stipulated price. In response to the fourth question, the jury found that there was no time fixed for the delivery of the cotton.

Much less importance is attached to the fifth question, as it presents the inquiry whether the cotton was to be weighed or otherwise prepared for delivery; and the jury found upon that subject that neither of the parties was to prepare or weigh the cotton for delivery. In response to the sixth question, that the cotton, so far as appeared, was never reweighed.

Inquiry was also made of the jury, in the seventh place, as to the market-price of cotton; and the jury found that a reasonable price at that time was eighteen or twenty cents per pound at the different localities.

Beyond all doubt, every one of the preceding findings of the jury tends more or less strongly to support the theory of the appellees; but the finding of the jury to the eighth question is even more conclusive that the claim of the appellant is without merit, as they find that Schley had no verbal authority from Metcalf to sell lot No. 3, and that it was not included in the sale of lots Nos. 1 and 2, and that the appellant, by virtue of his contract with Schley as to lots 1 and 2, neither accepted nor actually received any part of lot 3, or paid any part of the purchase-money.

Suppose the appellant never paid any part of the purchase-money for lot No. 3, still it was insisted that he offered to perform, and was ready to perform, his part of the contract; and, in order that that issue might be determined by the jury, the ninth question was framed, and it appears that the jury found, in response to that inquiry, that the appellant did not perform, or offer to perform, his part of the contract, and that he was never in a condition to perform it so as to entitle him to demand a delivery of the cotton; and they found, in response to the tenth inquiry, that he sustained no damages in relation to lot 3, upon the assumption that the findings are correct.

Costs were awarded to the respondents in the cross-bill; and the recital of the final decree shows that the parties were heard upon the pleadings and evidence in the case, and upon the findings of the jury rendered in response to the issues sent down to be tried at law, and which were duly returned to the Circuit Court sitting in equity. Error is not assigned in respect to that proceeding, and inasmuch as nothing is exhibited in the record to the contrary, the presumption must be that it is correct. Issues of the kind are properly directed, in a case where the questions of fact are involved in great doubt, by conflicting or insufficient evidence, and it is clear that the case before the subordinate court was one of that character. Adams's Eq., 6th Am ed., 376; Flagg v. Mann, 2 Story, 387; Field v. Holland, 6 Cranch, 8.

Equity courts may decide both fact and law, but they may, if they see fit, refer doubtful questions of fact to a jury. Findings of the kind, however, are not conclusive, and, if not satisfactory, they may be set aside or overruled; but if the finding is satisfactory to the Chancellor, the practice is to regard it as the proper foundation for a decree. Harding v. Handy, 11 Wheat. 103. Such findings are regarded as influential in an appellate court, but they are not conclusive. Goodyear v. Rubber Co. 2 Cliff. 365; Brockett v. Brockett, 3 How. 691; 2 Dan. Chan. Prac., 4th Am. ed., 1072. Consequently counsel were allowed to review the whole evidence in the case, and the court has followed the course adopted by the counsel at the argument, and the result of the review of the evidence is, that the court is clearly of the opinion that the findings of the jury were correct in all material respects, and that there is no error in the record.

Decree affirmed.

title: Garsed v. Beall/Opinion of the Court


text: Talk:Garsed v. Beall/Opinion of the Court


text:
The Alabama and the Game-Cock

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

The case was argued by Mr. Edwards Pierrepont for the 'Alabama,' by Mr. W. R. Beebe for the 'Game-cock,' and by Mr. John E. Parsons for the libellant.

MR JUSTICE BRADLEY delivered the opinion of the court.

title: The Alabama and the Game-Cock


text: Talk:The Alabama and the Game-Cock

title: Talk:The Alabama and the Game-Cock


text:
The Alabama and the Game-Cock/Opinion of the Court

Without entering upon a discussion of the evidence in this case, it is sufficient to say, that, having carefully examined the same, we see no reason to be dissatisfied with the conclusions of fact arrived at by the District and Circuit Courts. On the question of blame, the conclusion is, that both the 'Alabama' and the 'Game-cock' were in fault, and contributed to the loss; and that the 'Ninfa,' which was in tow of the 'Game-cock,' and suffered the loss, was not in fault. On this finding arises the question of law which is of principal interest in the case; namely, against whom, and in what manner, should the damage be adjudged? The 'Alabama' was a large steamer, and was bonded for $100,000; whilst the 'Game-cock' was a small tug, bonded at the stipulated value of $10,000. The loss was found to be about $80,000. The District Court rendered a decree against both for the whole, regarding them as liable in solido. The Circuit Court, on appeal, reversed this decree, and divided the loss between them, rendering a decree against each for one-half the amount. The court adopted this division of liability in obedience to the supposed views of Dr. Lushington, in the case of The Milan, 1 Lush. 404, which was followed in the case of the steamboat 'Atlas,' both by the District and Circuit Courts of the Southern District of New York. 4 Ben. 27; 10 Blatch. 459. The theory which underlies this decision seems to be, that the 'Game-cock' and her tow, the 'Ninfa,' being moved by one power, are to be regarded as one vessel, the same as a ship and her cargo; and that the two combined, whatever be their mutual relations to each other, are, as regards the 'Alabama,' affected by the fault of the tug; and that those vessels on the one side, and the 'Alabama' on the other, according to the admiralty rule in collision cases, must each bear half of the damage. The rule has been thus applied when the ship and her cargo constituted one opposing force, and a single ship the other; the entire damage to ships and cargo being equally divided between the two ships. Where both ship and cargo on one side belong to the same owners, the case is no way different from that of the two ships alone being injured. And even so long as the ship having cargo is able to respond to half the loss, no difficulty arises; for the other ship is liable for the balance, so that the owner of the cargo injured will lose nothing. But, if the carrying ship is unable to respond to half the damage sustained by her cargo, the deficiency will be entirl y lost if the other offending vessel can only be made liable for a single moiety. And yet it would seem to be just that the owner of the cargo, who is supposed to be free from fault, should recover the damage done thereto from those who caused it; and if he cannot recover from either of them such party's due share, he ought to be able to recover it from the other. The same reason for a division of the damage does not apply to him which applies to the owners of the ships. The safety of navigation requires that if they are both in fault, they should bear the damage equally, to make them more careful. And this consideration may well require, or at least justify, a primary award against each of a moiety only of the damage sustained by the cargo, for as between themselves that would be just. But if either is unable to pay his moiety of damage, there is no good reason why the owner of the cargo should not have a remedy over against the other. He ought not to suffer loss by the desire of the court to do justice between the wrong-doers. In short, the moiety rule has been adopted for a better distribution of justice between mutual wrong-doers; and it ought not to be extended so far as to inflict positive loss on innocent parties.

In the cases which have been cited from Lushington and others, it does not appear that any difficulty arose from the inability of either of the condemned parties to pay their share of the loss. No such inability seems to have existed. And when it does not exist, the application of the moiety rule operates justly as between the parties in fault, and works no injury to others. It is only when such inability exists that a different result takes place. The cases quoted, therefore, may have been well decided, and yet furnish no precedent for the case under consideration.

Conceding, therefore, that a vessel in tow, and without fault, is to be regarded as sustaining the same relation to the collision which is sustained by cargo (and it seems fair thus to consider it), we think that the decree of the Circuit Court was erroneous, and that a decree ought to be made against the 'Alabama' and the 'Game-cock,' and the irrespective stipulators, severally, each for one moiety of the entire damage, interest, and costs, so far as the stipulated value of said vessel shall extend; and any balance of such moiety, over and above such stipulated value of either vessel, or which the libellant shall be unable to collect or enforce, shall be paid by the other vessel or her stipulators to the extent of the stipulated value thereof beyond the moiety due from said vessel.

This is substantially the form of decree sanctioned by this court in The Washington and The Gregory, 9 Wall. 516, a case involving similar principles, although the particular point was not fully discussed in that case.

Decree reversed, and record remanded with instructions to enter a decree in conformity with this opinion.

MR. JUSTICE CLIFFORD dissented.


text: Talk:The Alabama and the Game-Cock/Opinion of the Court


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Hot Springs Cases Rector v. United States

APPEALS from the Court of Claims.

These cases were argued by— ''Mr. Matt. H. Carpenter and Mr. Albert Pike'' for Rector.

Mr. Frederick P. Stanton for Hale.

Mr. E. W. Munford for Gaines et al.

Mr. John A. Grow for Russell.

Mr. Attorney-General Pierrepont for the United States.

MR. JUSTICE BRADLEY delivered the opinion of the court.


text: Talk:Hot Springs Cases Rector v. United States