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Canada Southern Railway Company v. Gebhard/Opinion of the Court

1. There is no constitutional prohibition in Canada against the passage of laws impairing the obligation of contracts, and the parliament of the dominion had, in 1878, exclusive legislative authority over the corporation, and the general subjects of bankruptcy and insolvency in that jurisdiction. As to all matters within its authority, the dominion parliament has 'plenary legislative powers as large and of the same nature as those of the imperal parliament.' City of Fredericton v. The Queen, 3 Can. Sup. Ct. 559. On the twentieth of August, 1867, the parliament of Great Britain passed the 'railway companies act, 1867.' 2 St. 1332; 30, 31, Vict. c. 127. This act provides, among other things, for the prepara ion of 'schemes of arrangement' between railway companies unable to meet their engagements and their creditors, which can be filed in the court of chancery, accompanied by a declaration in writing, under the seal of the company and verified by the oaths of the directors, to the effect that the company is unable to meet its engagements with its creditors. Notice of the filing of such a scheme must be published in the Gazette, and the scheme is to be deemed assented to by the holders of mortgages. bonds, debenture stock, rent-charges, and preference shares, when assented to in writing by the holders of three-fourths in value of each class of security, and by the ordinary shareholders when assented to at an extraordinary general meeting specially called for that purpose. Provision is then made for an application to the court by the company for a confirmation of the scheme. Notice of this application must be published in the Gazette, and, after hearing, the court, if satisfied that no sufficient objection to the scheme has been established, may confirm it.

'The scheme, when confirmed, shall be enrolled in the court,     and thenceforth the same shall be binding and effectual to      all intents, and the provisions thereof shall, against and in      favor of the company and all parties assenting thereto or      bound thereby, have the like effect as if they had been      enacted by parliament.'

This act, it is apparent, was not passed to provide, for the first time, a way in which insolvent and embarrassed railway companies might settle and adjust their affairs, but to authorize the court of chancery to do what had before been done by parliament. Lord CAIRNS, L. J., said of it in Cambrian Railways Company's Scheme, L. R. 3 Ch. 294:

'Hitherto such companies, if they desired to raise further     capital to meet their engagements, have been forced to go to      parliament for a special act enabling them to offer such      advantages, by way of preference or priority, to persons      furnishing new capital as would lead to its being obtained. And parliament, in dealing with such applications, has been     in the habit of considering how far the arrangements      proposed, as to such new capital, were assented to or      dissented from by those who might be considered as the      proprietors of the existing capital of the company, either as      shareholders or bondholders. The object of the present act *     *  * appears to be to dispense with a special application to      parliament of the kind I have described, and to give a      parliamentary sanction to a scheme filed in the court of      chancery, and confirmed by the court, and assented to by      certain majorities of shareholders, and of holders of      debentures and securities ejusdem generis.' And even now in England special acts are passed whenever the provisions of the general act are not such as are needed to meet the wants of a particular company. A special act of this kind was considered in London Financial Ass'n v. ''Wrexham, M. & C. Q. Ry. Co.'' L. R. 18 Eq. 566.

In Canada no general statute like that in England has been enacted, but the old English practice of passing a special act in each particular case prevails, and OSLER, J., said in Jones v. ''Canada Cent. Ry. Co.'' 46 U. C. Q. B. 261, 'our statute books are full' of legislation of the kind. The particular question in that case was whether, after the establishment of the dominion government, the provincial parliaments had authority to pass laws with reference to provincial corporations which would operate upon debentures payable in England, and held by persons residing there, but it was not suggested, either by the court or counsel, that a statute of the kind, passed by the dominion parliament in reference to a dominion corporation, would not be valid as a law. So far as we are advised, the parliamentary authority for such legislation has never been doubted either in England or Canada. Many cases are reported in which such statutes were under consideration, but in no one of them has it been intim ted that the power was even questionable.

In Gilfillan v. Union Canal Co., [ante, 304,] at the present term, it was said that holders of bonds and other obligations issued by large corporations for sale in the market, and secured by mortgages to trustees, or otherwise, have, by fair implication, certain contract relations with each other. In England, we infer from what was said by Lord CAIRNS in Cambrian Railways Company's Scheme, supra, they are considered as in a sense part proprietors of the existing capital of the company, and dealt with by parliament and the courts accordingly. They are not there, any more than here, corporators, and thus necessarily, in the absence of fraud or undue influence, bound by the will of the majority as to matters within the scope of the corporate powers, but they are interested in the administration of a trust which has been created for their common benefit. Ordinarily their ultimate security depends in a large degree on the success of the work in which the corporation is engaged, and it is not uncommon for differences of opinion to exist as to what ought to be done for the promotion of their mutual interests. In the absence of statutory authority, or some provision in the instrument which establishes the trust, nothing can be done by a majority, however large, which will bind a minority without their consent. Hence, it seems to be eminently proper that where the legislative power exists some statutory provision should be made for binding the minority in a reasonable way by the will of the majority; and unless, as is the case in the states of the United States, the passage of laws impairing the obligation of contracts is forbidden, we see no good reason why such provision may not be made in respect to existing as well as prospective obligations. The nature of securities of this class is such that the right of legislative supervision for the good of all, unless restrained by some constitutional prohibition, seems almost necessarily to form one of their ingredients, and when insolvency is threatened, and the interests of the public as well as creditors are imperiled by the financial embarassments of the corporation, a reasonable 'scheme of arrangement' may, in our opinion, as well be legalized as an ordinary 'composition in bankruptcy.' In fact such 'arrangement acts' are a species of bankrupt acts. Their object is to enable corporations, created for the good of the public, to relieve themselves from financial embarassments by appropriating their property to the settlement and adjustment of their affairs, so that they may accomplish the purposes for which they were incorporated. The necessity for such legislation is clearly shown in the preamble to the Grand Trunk arrangement act, 1862, passed by the parliament of the province of Canada on the ninth of June, 1862, before the establishment of the dominion government, and which is in these words:

'Whereas, the interest on all the bonds of the Grand Trunk     Railway Company of Canada is in arrear, as well as the rent      of the railways leased to it, and the company has also become      indebted, both in Canada and in England, on simple contract,      to various persons and corporations, and several of the      creditors have obtained judgment against it, and much      litigation is now pending; and whereas, the keeping open of      the railway traffic, which is of the utmost importance to the      interests of the province, is thereby imperiled, and the      terms of a compromise have been provisionally settled between      the different classes of creditors and the company, but in      order to facilitate and give effect to such compromise the      interference of the legislature of the province is      necessary.'

The confirmation and legalization of 'a scheme of arrangement' under such circumstances is no more than is done in bankruptcy when a 'composition' agreement with the bankrupt debtor, if assented to by the required majority of creditors, is made binding on the non-assenting minority. In no just sense do such governmenta regulations deprive a person of his property without due process of law. They simply require each individual to so conduct himself for the general good as not unnecessarily to injure another. Bankrupt laws have been in force in England for more than three centuries, and they had their origin in the Roman law. The constitution expressly empowers the congress of the United States to establish such laws. Every member of a political community must necessarily part with some of the rights which, as an individual, not affected by his relation to others, he might have retained. Such concessions make up the consideration he gives for the obligation of the body politic to protect him in life, liberty, and property. Bankrupt laws, whatever may be the form they assume, are of that character.

2. That the laws of a country have no extraterritorial force is an axiom of international jurisprudence, but things done in one country under the authority of law may be of binding effect in another country. The obligor of the bonds and coupons here sued on was a corporation created for a public purpose; that is to say, to build, maintain, and work a railway in Canada. It had its corporate home in Canada, and was subject to the exclusive legislative authority of the Dominion parliament. It had no power to borrow money or incur debts except for completing, maintaining, and working its railway. The bonds taken by the defendants in error showed on their face that they were part of a series amounting in the aggregate to a very large sum of money, and that they were secured by a trust mortgage on the railway of the company, its lands, tolls, revenues, etc. In this way the defendants in error, when they bought their bonds, were, in legal effect, informed that they were entering into contract relations, not only with a foreign corporation created for a public purpose, and carrying on its business within a foreign jurisdiction, but with the holders of other bonds of the same series, who were relying equally with themselves for their ultimate security on a mortgage of property devoted to a public use, situated entirely within the territory of a foreign government. A corporation 'must dwell in the place of its creation, and cannot migrate to another sovereignty,' (Bank of Augusta v. Earle, 13 Pet. 588,) though it may do business in all places where its charter allows and the local laws do not forbid. Railroad v. Koontz, 104 U.S. 12. But wherever it goes for business it carries its charter, as that is the law of its existence, (Relf v. Rundle, 103 U.S. 226,) and the charter is the same abroad that it is at home. Whatever disabilities are placed upon the corporation at home it retains abroad, and whatever legislative control it is subjected to at home must be recognized and submitted to by those who deal with it elsewhere. A corporation of one country may be excluded from business in another country, (Paul v. Virginia, 8 Wall. 168,) but, if admitted, it must, in the absence of legislation equivalent to making it a corporation of the latter country, be taken, both by the government and those who deal with it, as a creature of the law of its own country, and subject to all the legislative control and direction that may be properly exercised over it at the place of its creation. Such being the law, it follows that every person who deals with a foreign corporation impliedly subjects himself to such laws of the foreign government, affecting the powers and obligations of the corporation with which he voluntarily contracts, as the known and established policy of that government authorizes. To all intents and purposes, he submits his contract with the corporation to such a policy of the foreign government, and whatever is done by that government in furtherance therance of that policy, which binds those in like situation with himself, who are subjects of the government, in respect to the operation and effect of their contracts with the corporation, will necessarily bind him. He is conclusi ely presumed to have contracted with a view to such laws of that government, because the corporation must of necessity be controlled by them, and it has no power to contract with a view to any other laws with which they are not in entire harmony. It follows, therefore, that anything done at the legal home of the corporation, under the authority of such laws, which discharges it from liability there, discharges it everywhere.

No better illustration of the propriety of this rule can be found than in the facts of the present case. This corporation was created in Canada to build and work a railway in that dominion. Its principal business was to be done in Canada, and the bulk of its corporate property was permanently fixed there. All its powers to contract were derived from the Canadian government, and all the contracts it could make were such as related directly or indirectly to its business in Canada. That business affected the public interests, and the keeping of the railway open for traffic was of the utmost importance to the people of the dominion. The corporation had become financially embarrassed, and was and had been for a long time unable to meet its engagements in the ordinary way as they matured. There was an urgent necessity that something be done for the settlement of its affairs. In this the public, the creditors, and the shareholders were all interested. A large majority of the creditors and shareholders had agreed on a plan of adjustment which would enable the company to go on with its business, and thus accommodate the public, and to protect the creditors to the full extent of the available value of its corporate property. The dominion parliament had the legislative power to legalize the plan of adjustment as it had been agreed on by the majority of those interested, and to bind the resident minority creditors by it terms. This power was known and recognized throughout the dominion when the corporation was created, and when all its bonds were executed and put on the market and sold. It is in accordance with and part of the policy of the English and Canadian governments in dealing with embarrassed and insolvent railway companies, and in providing for their reorganization in the interest of all concerned. It takes the place in England and Canada of foreclosure sales in the United States, which in general accomplish substantially the same result with more expense and greater delay, for it rarely happens in the United States that foreclosures of railway mortgages are anything else than the machinery by which arrangements between the creditors and other parties in interest are carried into effect, and a reorganization of the affairs of the corporation under a new name brought about. It is in entire harmony with the spirit of bankrupt laws, the binding force of which, upon those who are subject to the jurisdiction, is recognized by all civilized nations. It is not in conflict with the constitution of the United States, which, although prohibiting states from passing laws imparing the obligation of contracts, allows congress 'to establish * *  * uniform laws on the subject of bankruptcy throughout the United States.' Unless all parties in interest, wherever they reside, can be bound by the arrangement which it is sought to have legalized, the scheme may fail. All home creditors can be bound. What is needed is to bind those who are abroad. Under these circumstances the true spirit of international comity requires that schemes of this character, legalized at home, should be recognized in other countries. The fact that the bonds made in Canada were payable in New York is unimportant, except in determining by what law the parties intended their contract should be governed, and every citizen of a country, other than that in which the corporation is located, may protect himself against all unjust legislation of the foreign government by refusing to deal with its corporations.

On the whole we are satisfied That the scheme of arrangement bound the defendants in error, and that these actions annot be maintained. The same result was reached by the court of queen's bench in the province of Ontariowhen passing on a similar statute in Jones v. ''Canada Cent. Ry. Co., supra''.

The judgments are reversed and the causes remanded, with instructions to enter judgment on the facts found in favor of the railway company in each of the cases.

The Canada Southern Railway Company is a corporation created and organized under the laws of the dominion of Canada. It was given, by its charter, power to borrow in Canada or 'elsewhere,' at a rate of interest not exceeding 8 per cent. per annum, such sums of money as might be necessary to complete, maintain, or work its railway; to issue bonds therefor, payable either in currency or in sterling, at such place, within Canada 'or without,' as might be deemed advisable; to sell the same at such prices or discount as might be deemed expedient or necessary; and to hypothecate, mortgage, or pledge the lands, tolls, revenues, and other property of the company for the payment of the said sums and the interest thereon. In pursuance of the authority thus conferred, the company, in 1871, issued its bonds in the customary form of negotiable securities, and made them payable in the year 1906, at the office of the Union Trust Company in the city of New York, with interest at the rate of 7 per cent. per annum, coupons being given for such interest. These bonds, with their interest, were secured by a deed of trust to William L. Scott and Kenyon Cox, citizens of the United States, conveying to them, and their successors in the trust, the railway of the company, its lands, tolls, revenues, present and future, property, effects, franchises, and appurtenances. That deed declared that the bonds, and also the rights and benefits arising therefrom, should pass by delivery. In 1873 the company issued certain bonds, of the denomination of $105 each, for the purpose of funding unpaid coupons. They were made payable, principal and interest in gold, at the office of the Union Trust Company in the city of New York. In order to effect this arrangement for funding, the latter company was made a trustee to deliver the bonds of $105 each to the parties surrendering the unpaid coupons. Of some of these bonds defendants in error, who are citizens of New York, became the holders. They were delivered to them at the city of New York. Upon their non-payment at maturity, the present suits at law were brought in one of the courts of that state, and judgment asked for the amount of the bonds. The railway company appeared, and upon its petition the suits were removed into the circuit court of the United States for the southern district of New York. In the latter court an answer was filed, to which the plaintiff demurred. The demurrer being sustained and the company declining to answer further, judgment was rendered for the amount due on the bonds in suit.

What is the defense which my brethren have declared to be sufficient to deprive the plaintiffs of their right to judgment? That the company had paid the bonds in suit, in whole or in part? That the That, by the terms of the contract, it was discharged from liability to pay them? By no means. Its defense is placed wholly upon an act of the parliament of Canada, ratifying a certain scheme or arrangement, which is inconsistent with the contract between the parties, and to which a large minority of the bondholders and stockholders have never given their assent. That scheme provided for the surrender of the old bonds, bearing 7 per cent. interest, and the substitution of other bonds, maturing at a later date, and bearing a less rate of interest-3 per cent. for the first three years, and 5 per cent. thereafter, the interest on the new bonds being guarantied by the New York & Hudson River Railroad Company. To this scheme the circuit court finds as a fact that the pl intiffs never assented. They stood, as they had the right to do, upon their contract with the company. But the parliament of Canada declares that this scheme shall be deemed to have been assented to by all the holders of the original first mortgage bonds of the company,' and that this arrangement shall be binding upon all the holders of the first and second mortgage bonds and coupons and bonds for interest thereon respectively, and upon all the shareholders of the company.' This defense, asserting the power of a foreign government, by its legislation, to destroy the contract rights of citizens of the United States, was well characterized, as it seems to me, by the learned circuit judge who tried this case, as a most extraordinary one to be made in a country where the obligation of contracts against impairment by legislative enactment, as well as the rights of persons and property, are carefully guarded by constitutional provisions. In this country, no state can pass any law impairing the obligation of contracts; the constitution of the United States forbids such legislation. And the principle is founded in justice, independently of this constitutional provision. The statute of Canada here relied on disregards this principle, and openly and in terms impairs the obligation of the contract which each holder of these bonds has with this foreign railway company. It assumes, without a hearing and without the consent of those who hold its bonds, to discharge the railway company from all liability thereon. If any state in this Union should assume to pass a law with reference to a railway corporation she had created, requiring the holders of its bonds, for which they had paid value, to surrender them and take in their place others of less value, and payable at a different time, our courts, federal and state, would be constrained, by their obligation to support the constitution of the United States, to declare such legislation to be in conflict with that instrument. More than that, a citizen of Canada, or even a railway corporation of that dominion, could have the benefit, in our courts, of the constitutional inhibition upon state laws impairing the obligation of contracts.

In the Sinking-fund Cases, 99 U.S. 718, we said that while the United States are not included within the constitutional prohibition which prevents states from passing laws impairing the obligation of contracts, yet 'equally with the states they are prohibited from depriving persons or corporations of property without due process of law. They cannot legislate back to themselves, without making compensation, the lands they have given this corporation to aid in the construction of its railroad. Neither can they by legislation compel the corporation to discharge its obligations in respect to the subsidy bonds otherwise than according to the laws of the contract already made in that connection. The United States are as much bound by their contracts as are individuals. If they repudiate their obligations, it is as much repudiation, with all the wrong and reproach that term implies, as it would be if the repudiator had been a state, or a municipality, or a citizen. No change can be made in the title created by the grant of the lands, or in the contract for the subsidy bonds, without the consent of the corporation.'

But the laws of Canada, by the judgment now rendered, are given effect here, to the injury of our own citizens, notwithstanding those laws arbitrarily deprive them of their contract rights. This railroad company, under express authority conferred by its charter, executed bonds payable, as we have seen, in New York, and secured them by mortgage executed to citizens of the United States. It sent them to this country for sale and our people invested their money in them. Intrenched behind the arbitrary edict of a foreign government, it now says to American holders of its bonds that it will not comply with its contract; that if they do not surrender those securities and take others of less value they shall not receive anything.

It is claimed by my brethren that the Canada statute provides a scheme which, in its practical effect, resembles a composition in bankruptcy. It seems to me that there are several answers to this suggestion: (1) It does not purport to be a scheme of bankruptcy in the sense of the word 'bankruptcy' as used either in England or America. (2) It is unlike a composition in bankruptcy in this: that whereas a composition is never had except upon notice, so that creditors may have their day in court, with opportunity to show that the proposed composition should not be made, here, no such opportunity was given to the holders of this company's bonds, in any court or other tribunal, to show that the arrangement which the Canadian parliament sanctioned ought not, in justice, to be made; but the arrangement was, by legislative enactment, made absolutely binding upon every bondholder and stockholder, even those who are citizens of other countries. It is said that the Canadian scheme is practically nothing more than might be accomplished in foreclosure proceedings instituted in one of our own courts by or at the instance of the assenting bondholders. My answer is that all bondholders and stockholders have their day in court in such proceedings; and when, upon the judicial sale of a railway and its appurtenances, they fail to realize the full amount of their claims, they are not deprived of their property without due process of law.

Reference is made by the court to the act of the English parliament WHICH AUTHORIZES SUCH ARRANGEMENTS TO BE effected through courts of chancery. But, in such proceedings, all interested have their day in court, with opportunity to show that the proposed scheme should not receive judicial sanction. In my judgment, the discharge in Canada, by statute, of this foreign railway company from all obligation to pay these bonds according to their terms-whatever may be the binding force of such legislation upon persons resident in that country, or upon those who may assert their rights under the original contract in the courts of Canada-can have no extraterritorial effect; certainly none as to persons who reside in a different state or country, where the contract is to be performed, and in the courts of which it becomes the subject of litigation.

In Baldwin v. Hale, 1 Wall. 223, it was held that a discharge obtained under the insolvent law of one state of the Union is not a bar to an action on a note, even when given in and payable in the same state, the party to whom the note was given having been and being of a different state. Story, in his Conflict of Laws, says that should a state provide that the discharge of an insolvent debtor under her own laws was a discharge of all his contracts, even of those made in a foreign country, such a discharge, although binding upon the courts of that state, would, or might be, mere nullities in other countries. Section 348. Chancellor KENT, referring to state insolvent laws, in operation when there is no national bankrupt statute, says:

'The discharge under a state law is no bar to a suit on a     contract existing when the law was passed, nor to an action      by a citizen of another state in the courts of the United      States, or of any other state than that where the discharge      was obtained. The discharge under a state law will not discharge a debt due to     a citizen of another state who does not make himself a party      to a proceeding under the law. It will only operate upon     contracts made within the state between its own citizens or      suitors, subject to state power. The doctrine of the supreme     court of the United States, in Ogden v. Saunders, 12 Wheat. 213, is that a discharge under the bankrupt law of one     country does not affect contracts made or to be executed in      another.' 2 Kent, 392, 393.

Such is the unvarying current of authority in this country. If a discharge by an insolvent law of one of the United States does not affect the contract rights of citizens of another state, how much stronger is the case where, by the terms of the contract, it is to be performed in a state or country other than that in which the discharge is granted. My brethern suggest, if I do not misapprehend their opinion, that the parties here suing must be understood to have purchased these bonds with reference to the power which the Canadian government has over corporations of its own creation. But this view, it seems to me, overlooks the principle, founded, says Story, in natural justice-and applicable here, even if the bonds in suit had been purchased and delivered in Canada-that 'where the contract is, either expressly or tacitly, to be performed in another place than where made, the rule is, in conformity with the presumed intention of the parties, that the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance.' Confl. Laws, § 280; Andrews v. Pond, 13 Pet. 65; Cook v. Moffat, 5 How. 307. Why should it not be presumed that the parties to these contracts made them with reference as well to that principle as to another principle which is thus forcibly stated by Kent:

'The laws of other governments have no force beyond their     territorial limits; and if permitted to operate in other      states, it is upon a principle of comity and only when      neither the state nor its citizens would suffer any      inconvenience from the application of the foreign law.' 2      Kent, 406.

Story announces the same doctrine in the following language: 'And even in relation to a discharge according to the laws of     the place where the contract is made, there are (as we have      seen) some necessary limitations and exceptions ingrafted      upon the general doctrine which every country will enforce,      whenever those laws are manifestly unjust, or are injurious      to the fair rights of its own citizens. It has been said by a     learned judge with great force: 'As the laws of foreign      countries are not admitted ex proprio vigore, but merely ex      comitate, the judicial power will exercise a discretion with      respect to the laws, which they may be called upon to      sanction; for should they be manifestly unjust, or calculated      to injure their own citizens, they ought to be rejected. Thus, if any state should enact that its citizens should be     discharged from all debts due to creditors living without the      state, such a provision would be so contrary to the common      principles of justice that the most liberal spirit of comity      would not require its adoption in any other state."

In 1 Burg. Col. & For. Laws, 5, the author says:

'It is established as a principle of international     jurisprudence that effect should be given to the laws of      another state whenever the rights of a litigant before its      tribunals are derived from, or are dependent on, those laws,      and when such recognition is not prejudicial to its own      interests or the rights of its own subjects.'

The same view is thus expressed by another American author:

'It [the state] must consult sound morals and the interests     and public policy of its own people, and if to enforce the      laws of another state or country would lead to their      infringement, it would be treacherous to its own duties to      lend aid to their execution.' 1 Daniel, Neg. Inst. § 866.

In Smith v. Buchanan, 1 East, 6, 11, the question was whether a discharge of an English contract under an insolvent act of the state of Maryland, where the debtor resided, was a bar to a suit upon that contract in the courts of England. The point was there made that the discharge under the laws of Maryland was analagous and equivalent to a certificate of bankruptcy in England; and having been issued by a competent jurisdiction in the case of subjects of Maryland residing there at the time, though it had not the binding force of law in England, yet the courts there should give effect to it 'by adoption and the courtesy of nations.' But to that argument the court, speaking by Lord KENYON, said: 'This is the case of a contract lawfully made by a sub ect in this country, which he resorts to a court of justice to enforce; and the only answer is that a law has been made in a foreign country to discharge these defendants from their debts on condition of their having relinquished all their property to their creditors.' 'But how,' said he, 'is that an answer to a subject of this country, suing on a lawful contract made here? How can it be pretended he is bound by a condition to which he has given no assent, either express or implied?' 'In America,' adds Story, referring to that case, 'the same doctrine has obtained the fullest sanction.' Story, Confl. Laws, § 342. So also in Bartley v. Hodges, 1 Best & S. 375, where the defendant pleaded, in a court of England, an insolvent discharge under the laws of Victoria, a British colony. The court said: 'No case has been cited to show that a discharge under the insolvent laws of Victoria is an answer to an action here, brought by an English subject on a bill of exchange drawn and payable in England. * *  * It is true that the colony of Victoria is not a foreign country in one sense of the word, yet its laws are the laws of that colony only. * *  * It might as well be said that the laws of the state of Maryland would apply here.' So also in Phillips v. Allan, 8 Barn. & C. 477, it was held that an insolvent discharge under the laws of Scotland was no bar to an action brought by an English subject in a court in England on a debt contracted in England, although it appeared that the English creditor had appeared in the Scottish proceedings for the purpose only of opposing the discharge.

The case, then, before us, is one in which a foreign railway corporation pleads in discharge of its liability to pay its negotiable securities held by citizens of the United States, and which were delivered and are payable in this country, not that it had paid such securities; not that there had been a composition in bankruptcy embracing these claims; not that any court had given its sanction to the scheme in question; but that a statute of a foreign country, without the consent of those who did not approve such scheme, and without giving an opportunity before any authorized tribunal to show that such scheme ought not to be ratified, had absolved it from liability to meet its contract engagements. This defense my brethren feel obliged, upon grounds of international comity, to sustain. Thus, an American court denies to American holders of foreign railway securities what an English court would not deny to English holders of American railway securities. An English court would not permit the rights of Englishmen, growing out of a contract between them and a foreign corporation, which is to be performed in England, to be injuriously affected by foreign laws in violation of the terms of that contract. I fully concur in what the circuit judge said:

'If any of our own states had passed such an act as the one     under consideration, it would have been the duty of the      courts of that state to treat it as an unlawful exercise of      power; and certainly it cannot be expected that this court      will tolerate legislation by a foreign state which it would      not sanction if passed here, and which, if allowed to      operate, would seriously prejudice the rights of a citizen of      this state. Comity can ask no recognition of such unjust     foreign legislation, and the case falls under the      qualifications of a general rule, which prescribes that when      the foreign law is repugnant to the fundamental principle of      the lex fori, it will be ignored.'

The principles for which I contend are not affected, in their application to this case, by the circumstance that the legislation of Canada relates to the contracts of a quasi public corporation and not to contracts wholly between individuals. For, in determining whether a statute impairs the obligation of a contract, within the meaning of our constitution, it must be conceded that that instrument protects such obligation against legislative impairment as well in cases of c ntracts with railway corporations as of contracts between individuals. It is equally clear that debts held against such corporations are property of which the citizen may not be deprived without due process of law. We said in Pritchard v. Norton, 106 U.S. 132, [1 SUP. CT. REP. 102,] that 'a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Whether it springs from contract or from the principles of the common law, it is not competent for the legislature to take it away.' Railway corporations are, undoubtedly, public instrumentalities employed by government to accomplish public purposes. But in this country the legislative department may not, under the guise of regulating such corporations, arbitarily deprive creditors of the benefit of their claims against them, or impair the obligation of contracts which individuals have with them. This, perhaps, would not be disputed were this a contest between American citizens, or even citizens of Canada, and an American railway corporation.

As I do not think that a foreign railway corporation is entitled, upon principles of international comity, to have the benefit, in our courts-to the prejudice of our own people and in violation of their contract and property rights-of a foreign statute which could not be sustained had it been enacted by congress or by any one of the United States, with reference to the negotiable securities of an American railway corporation; and, as I do not agree that an American court should accord to a foreign railway corporation the privilege of repudiating its contract obligations to American citizens, when it must deny any such privilege, under like circumstances, to our own railway corporations, I dissent from the opinion and judgment of the court.

Mr. Justice Field not being present at the argument of this case took no part in the decision.


text: Talk:Canada Southern Railway Company v. Gebhard/Opinion of the Court

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text:
Sullivan v. Iron Silver Mining Company (109 U.S. 550)

T. M. Patterson, for plaintiff in error.

G. G. Symes and Ashley Pond, for defendants in error.

GRAY, J.


text: Talk:Sullivan v. Iron Silver Mining Company (109 U.S. 550)


text:
Sullivan v. Iron Silver Mining Company (109 U.S. 550)/Opinion of the Court

This action was brought by the Iron Silver Mining Company, owning a tract of land or mining claim known as the Wells & Moyer placer claim, described by metes and bounds in the complaint, against Sullivan and others, to recover possession of part of the tract, likewise described, from which it had been ousted by the defendants. The answer originally filed was demurred to, and the demurrer sustained. The defendants thereupon, by leave of the court, filed an amended answer, alleging that on the eleventh of March, 1879, the United States issued to Wells & Moyer, the grantors of the plaintiff, for the premises described in the complaint, and known as No. 281, upon the application for and entry of the premises as the Wells & Moyer placer claim, a placer patent, or patent of and for a placer mining claim, containing the following restrictions and exceptions: 'First. That the grant hereby made is restricted in its  exterior limits to the boundaries of the said lot No. 281, as hereinbefore described, and to any veins or  lodes of quartz, or other rock in place, bearing gold,   silver, cinnabar, lead, tin, copper, or other valuable   deposits, which may hereafter be discovered within said   limits, and situate, and not claimed or known to exist,   at the date hereof.

'Second. That should any vein or lode of quartz, or other     rock in place, bearing gold, silver, cinnabar, lead, tin,      copper, or other valuable deposits, be claimed or known to      exist within the above-described premises at the date hereof,      the same is expressly excepted and excluded from these      presents.'

The amended answer also alleged 'that at the time of the location of said placer claim, and the survey thereof, and at the time of the application for said patent, and at the time of the entry of said land thereunder, and at the time and date of the issuing and granting of said patent, a lode, vein, or deposit of mineral ore in rock in place, carrying carbonates of lead and silver, and of great value, was known to exist, and was claimed to exist, within the boundaries and underneath the surface of said Wells & Moyer placer claim No. 281; and that the fact that said vein was claimed to exist, and did exist as aforesaid within said premises, was known to the patentees of said claim at all the times hereinbefore mentioned;' and 'that the said application for said patent by said patentees and grantors of said plaintiff did not include any application whatever for a patent of or to said lode or vein within its boundaries aforesaid. Wherefore these defendants aver that the said failure to include said vein or lode in said application amounted to a conclusive declaration by said patentees that they made no claim whatever to said lode or vein, or any part thereof, and that the same was expressly excepted and excluded from, and did not pass with, the grant of said premises in and by said patent for said premises.'

The amended answer further alleged that on the first of January, 1883, the defendants, then and now being citizens of the United States, went upon the premises last described in the complaint, and sunk a shaft thereon, which uncovered and exposed said lode, vein, or deposit; and thereupon proceeded to and did locate the same as a lode claim, by erecting a notice containing the name of the lode, the date of the location, and their own names as locators, and marked the surface boundaries by posts; and afterwards caused to be filed a location certificate containing the name of the lode, the names of the locators, the date of the location, the number of feet in length claimed on each side of the center of the discovery shaft, and the general course and direction of said claim as near as might be. 'Wherefore the defendants claim the right to occupy and possess the said premises in full accordance with and by virtue of a full compliance with the requirements of the laws of the United States, and of the state of Colorado, the said vein, lode, or deposit being a part and parcel of the unappropriated public mineral domain of the United States; and that the acts and doings of the defendants as hereinbefore set forth constitute the said supposed trespass complained of by the plaintiff.'

The plaintiff demurred to the amended answer, because neither of its allegations set forth any defense; because it showed that neither the defendants nor their grantors had duly discovered, located, or recorded any lode or vein such as is described in section 2320 of the Revised Statutes, at or before the time of the application for the placer patent, but that the defendants located their lode claim within the boundaries of the patented ground after the issuing of the placer patent; and because the applicants for the placer patent were not required to apply for the vein or lode claim, unless it had been duly discovered, located, and recorded, and was owned by the applicants for the placer patent at the time of applying for the patent. The circuit court sustained the demurrer to the amended answer, and gave judgment for the plaintiff, and the defendants sued out this writ of error.

The question in this case arises under section 2333 of the Revised Statutes, the different provisions of which will be more clearly distinguished from each other, without affecting the meaning of either, by separating them by periods, as follows:

'Sec. 2333. Where the same person, association, or     corporation is in possession of a placer claim, and also a vein or lode      included within the boundaries thereof, application shall be      made for a patent for the placer claim with the statement      that it includes such vein or lode, and in such case a patent      shall issue for the placer claim, subject to the provisions      of this chapter, including such vein or lode, upon the      payment of five dollars per acre for such vein or lode claim,      and twenty-five feet of surface on each side thereof. The     remainder of the placer claim, or any placer claim not      embracing any vein or lode claim, shall be paid for at the      rate of two dollars and fifty cents per acre, together with      all costs of proceedings. And where a vein or lode, such as     is described in section twenty-three hundred and twenty, is      known to exist within the boundaries of a placer claim, an      application for a patent for such placer claim which does not      include an application for the vein or lode claim shall be      construed as a conclusive declaration that the claimant of      the placer claim has no right of possession of the vein or      lode claim. But where the existence of the vein or lode in a     placer claim is not known, a patent for the placer claim      shall convey all valuable mineral and other deposits within      the boundaries thereof.'

The section referred to in the third subdivision of this section is as follow:

'Sec. 2320. Mining claims upon veins or lodes of quartz or     other rock in place bearing gold, silver, cinnabar, lead,      tin, copper, or other valuable deposits, heretofore located,      shall be governed as to length along the vein or lode by the      customs, regulations, and laws in force at the date of their      location. A mining claim located after the tenth day of May,     eighteen hundred and seventy-two, whether located by one or      more persons, may equal, but shall not exceed, one thousand      five hundred feet in length along the vein or lode; but no      location of a mining claim shall be made until the discovery      of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each     side of the middle of the vein at the surface, nor shall any      claim be limited by any mining regulation to less than      twenty-five feet on each side of the middle of the vein at      the surface, except where adverse rights existing on the      tenth day of May, eighteen hundreed and seventy-two, render      such limitation necessary. The end lines of each claim shall     be parallel to each other.' The counsel of both parties, in their arguments, have discussed the question whether a vein or lode included within the boundaries of a placer claim, the application for which does not include an application for the vein or lode claim, is excepted out of the patent for the placer claim, if at the time of the application it is known to the applicant to exist, but no claim to the vein or lode has been located.

In accordance with the view expressed by the circuit court in the opinion delivered on sustaining the demurrer to the original answer, and reported in 16 Fed. Rep. 829, the defendants in error maintain that by virtue of section 2333, taken in connection with section 2320 therein referred to, a vein or lode within the boundaries of a placer claim is not excepted from a patent for the placer claim, unless a claim for the vein or lode had previously been located according to section 2320.

The plaintiffs in error contend that if the existence of the vein or lode is known to the applicant for a placer claim, he must include, in his application for the placer claim, an application for the vein or lode claim, and pay for the latter at the higher rate, in order to obtain any title to it.

The circuit court treated the question of the construction of this statute as one of much difficulty and of some doubt, and as affecting numerous cases. This court should not express an opinion upon it, unless its determination is necessarily involved in the adjudication of the case at bar. We are of opinion that the question is not presented for adjudication upon the record before us. The amended answer alleges that at the times of the location and survey of, entry upon, and application and patent for, the placer claim, the lode or vein was known to exist, and was claimed to exist, within the boundaries and underneath the surface of the placer claim, and the fact that the vein was claimed to exist and did exist within the premises was known to the patentees of that claim. The phrase 'claimed to exist,' as used in the amended answer, apparently intending to follow the form of patent therein set forth, is not indeed a statement that a claim for the vein or lode had been in due form made and located, but only that it was contended that the vein or lode existed. But the further allegation in the answer, that the vein was known by the patentees to exist at the times mentioned, is an allegation, in the very words of the statute itself, of the fact which the statute declares shall be conclusive against any right of possession of the vein or lode claim in a claimant of the placer claim only.

Whether the words 'known to exist,' as used in the statute, are satisfied by actual knowledge of the applicant, or imply also a located claim for the vein or lode, the same meaning must be attributed to them in the amended answer; and and the fact signified by the statute is well pleaded; for, by the elementary rules of pleading, facts may be pleaded according to their legal effect, without setting forth the particulars that lead to it; and necessary circumstances implied by law need not be expressed in the plea. Bac. Abr. 'Pleas & Pleading, I,' 7; Co. Litt. 303b. The fact that the vein or lode was known to exist as contemplated by the statute being well pleaded, although in general terms, is admitted by the demurrer. Eaton v. Southby, Willes, 131; Postmaster Gen. v. Ustick, 4 Wash. C. C. 347; Christmas v. Russell, 5 Wall. 290. In order to present the issue discussed in argument, the plaintiff should either have traversed the allegation, or have replied that no claim for the vein or lode had been located at the time in question. We find nothing in the statutes of Colorado which changes the rules of the common law in this respect. See Colo. Code Civil Proc. 1877, §§ 48, 49, 52, 61.

The judgment must therefore be reversed, and the case remanded to the circuit court, with liberty to either party to move in that court to amend the pleadings.


text: Talk:Sullivan v. Iron Silver Mining Company (109 U.S. 550)/Opinion of the Court


text:
Kan-Gi-Shun-Ca

109 U.S. 556

3 S.Ct. 396

27 L.Ed. 1030 Ex parte KAN-GI-SHUN-CA, (otherwise known as Crow Dog,) petitioner.1

December 17, 1883.

Walter H. Smith and A. J. Plowman, for petitioner.

''Sol. Gen. Phillips'', for respondent.

MATTHEWS, J.

title: Kan-Gi-Shun-Ca


text: Talk:Kan-Gi-Shun-Ca

title: Talk:Kan-Gi-Shun-Ca


text:
Kan-Gi-Shun-Ca/Opinion of the Court

The petitioner is in the custody of the marshal of the United States for the territory of Dakota, imprisoned in the jail of Lawrence county, in the first judicial district of that territory, under sentence of death, adjudged against him by the district court for that district, to be carried into execution January 14, 1884. That judgment was rendered upon a conviction for the murder of an Indian of the Brule Sioux band of the Sioux nation of Indians, by the name of Sin-ta-ge-le-Scka, or in English, Spotted Tail, the prisoner also being an Indian of the same band and nation, and the homicide having occurred, as alleged in the indictment, in the Indian country, within a place and district of country under the exclusive jurisdiction of the United States and within the said judicial district. The judgment was affirmed on a writ of error, by the supreme court of the territory. It is claimed on behalf of the prisoner that the crime charged against him, and of which he stands convicted, is not an offense under the laws of the United States; that the district court had no jurisdiction to try him, and that its judgment and sentence are void. It therefore prays for a writ of habeas corpus, that he may be delivered from an imprisonment which he asserts to be illegal. The indictment is framed upon section 5339 of the Revised Statutes. That section is found in title 70, on the subject of crimes against the United States, and in chapter 3, which treats of crimes arising within the maritime and territorial jurisdiction of the United States. It provides that 'every person who commits murder, * *  * within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States, *  *  * shall suffer death.' Title 28 of the Revised Statutes relates to Indians, and the sub-title of chapter 4 is, 'Government of Indian Country.' It embraces many provisions regulating the subject of intercourse and trade with the Indians in the Indian country, and imposes penalties and punishments for various violations of them. Section 2142 provides for the punishment of assaults with deadly weapons and intent, by Indians upon white persons, and by white persons upon Indians; section 2143, for the case of arson, in like cases; and section 2144 provides that 'the general laws of the United States defining and prescribing punishments for forgery and depredations upon the mails shall extend to the Indian country.' The next two sections are as follows:

'Sec. 2145. Except as to crimes, the punishment of which is     expressly provided for in this title, the general laws of the      United States as to the punishment of crimes committed in any      place within the sole and exclusive jurisdiction of the      United States, except the District of Columbia, shall extend      to the Indian country.

'Sec. 2146. The preceding section shall not be construed to     extend to [crimes committed by one Indian against the person      or property of another Indian, nor to] any Indian committing      any offense in the Indian country who has been punished by      the local law of the tribe, or to any case where by treaty      stipulations the exclusive jurisdiction over such offenses is      or may be secured to the Indian tribes respectively.'

That part of section 2146 placed within brackets was in the act of twenty-seventh March, 1854, c. 26, § 3, (10 St. 270,) was omitted by the re isers in the original Revision, and restored by the act of eighteenth February, 1875, c. 80, (18 St. 318,) and now appears in the second edition of the Revised Statutes. It is assumed for the purposes of this opinion that the omission in the original Revision was inadvertent, and that the restoration evinces no other intent on the part of congress than that the provision should be considered as in force, without interruption, and not a new enactment of it for any other purpose than to correct the error of the Revision.

The district courts of the territory of Dakota are invested with the same jurisdiction in all cases arising under the laws of the United States as is vested in the circuit and district courts of the United States. Rev. St. §§ 1907-1910. The reservation of the Sioux Indians, lying within the exterior boundaries of the territory of Dakota, was defined by article 2 of the treaty concluded April 29, 1868, (15 St. 635,) and by section 1839 Rev. St., it is excepted out of and constitutes no part of that territory. The object of this exception is stated to be to exclude the jurisdiction of any state or territorial government over Indians within its exterior lines, without their consent, where their rights have been reserved and remain unextinguished by treaty. But the district courts of the territory having, by law, the jurisdiction of district and circuit courts of the United States, may, in that character, take cognizance of offenses against the laws of the United States, although committed within an Indian reservation, when the latter is situate within the space which is constituted by the authority of the territorial government the judicial district of such court. If the land reserved for the exclusive occupancy of Indians lies outside the exterior boundaries of any organized territorial government, it would require an act of congress to attach it to a judicial district, of which there are many instances, the latest being the act of January 6, 1883, by which a part of the Indian territory was attached to the district of Kansas and a part of the northern district of Texas. 22 St. 400. In the present case the Sioux reservation is within the geographical limits of the territory of Dakota, and being excepted out of it only in respect to the territorial government, the district court of that territory within the geographical boundaries of whose district it lies, may exercise jurisdiction under the laws of the United States over offenses made punishable by them, committed within its limits. U.S. v. Dawson, 15 How. 467; U.S. v. Jackalow, 1 Black, 484; U.S. v. Rogers, 4 How. 567; U.S. v. Alberty, Hemp. 444, opinion by Mr. Justice DANIEL; U.S. v. Starr, Id. 469; U.S. v. Ta-wan-ga-ca, Id. 304. The district court has two distinct jurisdictions. As a territorial court it administers the local law of the territorial government; as invested by act of congress with jurisdiction to administer the laws of the United States, in has all the authority of circuit and district courts; so that, in the former character, it may try a prisoner for murder committed in the territory proper, under the local law, which requires the jury to determine whether the punishment shall be death or imprisonment for life; (Laws Dak. 1883, c. 9;) and, in the other character, try another for a murder committed within the Indian reservation, under a law of the United States, which imposes, in case of conviction, the penalty of death.

Section 2145 of the Revised Statutes extends the general laws of the United States as to the punishment of crimes committed in any place within their sole and exclusive jurisdiction, except the District of Columbia, to the Indian country, and it becomes necessary, therefore, to inquire whether the locality of the homicide, for which the prisoner was convicted of murder, is within that description.

The first section of the Indian intercourse act of June 30, 1834, defines the Indian co ntry as follows:

'That all that part of the United States west of the     Mississippi, and not within the states of Missouri and      Louisana or the territory of Arkansas, and also that part of      the United States east of the Mississippi river not within      any state, to which the Indian title has not been      extinguished, for the purposes of this act, be taken and be      deemed to be the Indian country.'

Since the passage of that act great changes have taken place by the acquisition of new territory, by the creation of new states, and by the organization of territorial governments, and the Revised Statutes, while retaining the substance of many important provisions of the act of 1834, with amendments and additions since made regulating intercourse with the Indian tribes, has, nevertheless, omitted all definition of what now must be taken to be 'the Indian country.' Nevertheless, although the section of the act of 1834 containing the definition of that date has been repealed, it is not to be regarded as if it had never been adopted, but may be referred to in connection with the provisions of its original context which remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country, where it is spoken of in the statutes. It is an admitted rule in the interpretation of statutes that clauses which have been repealed may still be considered in construing the provisions that remain in force. BRAMWELL, L. J. in Atty. Gen. v. Lamplough, 3 Exch. Div. 223-227; Hardc. St. 217; Savings Bank v. Collector, 3 Wall. 495-513; Com. v. Bailey, 13 Allen, 541. This rule was applied in reference to the very question now under consideration in Bates v. Clark, 95 U.S. 204, decided at the October term, 1877. It was said in that case by Mr. Justice MILLER, delivering the opinion of the court, that 'it follows from this that all the country described by the act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of congress.' In our opinion that definition now applies to all the country to which the Indian title has not been extinguished within the limits of the United States, even when not within a reservation expressly set apart for the exclusive occupancy of Indians, although much of it has been acquired since the passage of the act of 1834, and notwithstanding the formal definition in that act has been dropped from the statutes, excluding, however, any territory embraced within the exterior geographical limits of a state, not excepted from its jurisdiction by treaty or by statute at the time of its admission into the Union, but saving, even in respect to territory not thus excepted and actually in the exclusive occupancy of Indians, the authority of congress over it, under the constitutional power to regulate commerce with the Indian tribes, and under any treaty made in pursuance of it. U.S. v. McBratney, 104 U.S. 621. This definition, though not now expressed in the Revised Statutes, is implied in all those provisions, most of which were originally connected with it when first enacted, and which still refer to it. It would be otherwise impossible to explain these references, or give effect to many of the most important provisions of existing legislation for the government of Indian country. It follows that the locus in quo of the alleged offense is within Indian country over which, territorially, the district court of the first judicial district of Dakota, sitting with the authority of a circuit court of the United States, had jurisdiction. But if section 2145, Rev. St., extends the act of congress, section 5339, punishing murder, to the locality of the prisoner's offense, section 2146 expressly excepts from its operation 'crimes committed by one Indian against the person or property of another Indian;' an exception which includes the case of the prisoner, and which, if it is effective and in force, makes his conviction illegal and void. This brings us at once to the main question of jurisdiction, deemed by congress to be of such importance to the prisoner and the public as to justify a special appropriation for the payment of the expenses incurred on his behalf in presenting it for decision in this proceeding to this court. 22 St. p. 624, c. 143, March 3, 1883. The argument in support of the jurisdiction and conviction is, that the exception contained in section 2146, Rev. St., is repealed by the operation and legal effect of the treaty with the different tribes of the Sioux Indians of April 29, 1868, (15 St. 635;) and an act of congress, approved February 28, 1877, to ratify an agreement with certain bands of the Sioux Indians, etc. 19 St. 254.

The following provisions of the treaty of 1868 are relied on:

'Article 1. From this time forward all war between the     parties to this agreement shall forever cease. The government     of the United States desires peace, and its honor is hereby      pledged to keep it. The Indians desire peace, and they now pledge their     honor to maintain it.

'If bad men among the whites, or among other people subject     to the authority of the United States, shall commit any wrong      upon the person or property of the Indians, the United States      will, upon proof made to the agent and forwarded to the      commissioner of Indian affairs at Washington city, proceed at      once to cause the offender to be arrested and punished      according to the laws of the United States, and also      reimburse the injured person for the loss sustained.

'If bad men among the Indians shall commit a wrong or     depredation upon the person or property of any one, white,      black, or Indian, subject to the authority of the United      States and at peace therewith, the Indians herein named      solemnly agree that they will, upon proof made to their agent      and notice by him, deliver up the wrong-doer to the United      States, to be tried and punished according to its laws. And     in case they wilfully refuse so to do, the person injured      shall be reimbursed for his loss from the annuities or other      moneys due or to become due to them under this or other      treaties made with the United States. And the president, on     advising with the commissioner of Indian affairs, shall      prescribe rules and regulations for ascertaining damages      under the provisions of this article as in his judgment may      be proper. But no one sustaining loss while violating the     provisions of this treaty or the laws of the United States      shall be reimbursed therefor.'

The second article defines the reservation, which, it is stipulated,--

'Is set apart for the absolute and undisturbed use and     occupation of the Indians herein named, and for such other      friendly tribes or individual Indians as from time to time      they may be willing, with the consent of the United States,      to admit among them; and the United States now solemnly      agrees that no person except those herein designated and      authorized so to do, and except such officers, agents, and      employes of the government as may be authorized to enter upon      Indian reservations in discharge of duties enjoined by law,      shall ever be permitted to pass over, settle upon, or reside in the territory described in this      article.' *  *  *

'Article 5. The United States agrees that the agent for said     Indians shall in future make his home at the agency building;      that he shall reside among them, and keep an office open at      all times for the purpose of prompt and diligent inquiry into      such matters of complaint by and against the Indians as may      be presented for investigation under their treaty      stipulations, as also for the faithful discharge of other      duties enjoined upon him by law. In all cases of depredation     on person or property he shall cause evidence to be taken in      writing and forwarded, together with his findings, to the      commissioner of Indian affairs, whose decision, subject to      the revision of the secretary of the interior, shall be      binding on the parties to this treaty.'

Other provisions of this treaty are intended to encourage the settlement of individuals and families upon separate agricultural reservations, and the education of children in schools to be established. The condition of the tribe, in point of civilization, is illustrated by stipulations on the part of the Indians, that they will not interfere with the construction of railroads on the plains or over their reservation, nor attack persons at home or traveling, nor disturb wagon trains, mules, or cattle belonging to the people of the United States, nor capture nor carry off white women or children from the settlements, nor kill nor scalp white men, nor attempt to do them harm.

By the Indian appropriation act of August 15, 1876, congress appropriated $1,000,000 for the subsistence of the Sioux Indians, in accordance with the treaty of 1868, and 'for purposes of their civilization,' (19 St. 192,) but coupled it with certain conditions relative to a cession of a portion of the reservation, and with the proviso 'that no further appropriation for said Sioux Indians for subsistence shall hereafter be made until some stipulation, agreement, or arrangement shall have been entered into by said Indians with the president of the United States, which is calculated and designed to enable said Indians to become self-supporting.' In pursuance of that provision the agreement was made, which was ratified in part by the act of congress of February 28, 1877. The enactment of this agreement by statute, instead of its ratification as a treaty, was in pursuance of the policy which had been declared for the first time in a proviso to the Indian appropriation act of March 3, 1871, (16 St. 566 c. 120,) and permanently adopted in section 2079 of the Revised Statutes, that thereafter 'no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty,' but without invalidating or impairing the obligation of subsisting treaties.

The instrument in which the agreement was embodied was signed by the commissioners, on the part of the United States, and by the representative chiefs and head men of the various Sioux tribes, but with certain exceptions on the part of some of the latter, and consisted of 11 articles. The first defines the boundaries of the reservation; the second provides for wagon roads through it to the country lying west of it, and for the free navigation of the Mississippi river; the third for the places where annuities shall be received. Article four was as follows:

'The government of the United States and the said Indians     being mutually desirous that the latter shall be located in a      country where they may eventually become self-supporting and      acquire the arts of civilized life, it is therefore agreed      that the said Indians shall select a delegation of five or      more chiefs and principal men from each band, who shall,      without delay, visit the Indian territory, under the guidance      and protection of suitable persons, to be appointed for that      purpose by the department of the interior, with a view to      selecting therein a permanent home for the said Indians. If     such delegation shall make a selection which shall be      satisfactory to themselves, the people whom they represent,      and to the United States, then the said Indians agree that      they will remove to the country so selected within one year      from this date. And the said Indians do further agree in all     things to submit themselves to such beneficent plans as the      government may provide for them in the selection of a country      suitable for a permanent home, where they may live like white men.'

The fifth article recites that, in consideration of the foregoing cession of territory and rights, the United States agrees 'to prov de all necessary aid to assist the said Indians in the work of civilization; to furnish to them schools, and instruction in mechanical and agricultural arts, as provided for by the treaty of 1868;' to provide subsistence, etc. Article 8 is as follows:

'The provisions of the said treaty of 1868, except as herein     modified, shall continue in full force, and, with the      provisions of this agreement, shall apply to any country      which may hereafter be occupied by the said Indians as a      home; and congress shall, by appropriate legislation, secure      to them an orderly government; they shall be subject to the      laws of the United States, and each individual shall be      protected in his rights of property, person, and life.

'Art. 9. The Indians, parties to this agreement, do hereby     solemnly pledge themselves, individually and collectively, to      observe each and all of the stipulations herein contained; to      select allotments of land as soon as possible after their      removal to their permanent home, and to use their best      efforts to learn to cultivate the same. And they do solemnly     pledge themselves that they will, at all times, maintain      peace with the citizens and government of the United States;      that they will observe the laws thereof, and loyally endeavor      to fulfill all the obligations assumed by them under the      treaty of 1868 and the present agreement, and to this end      will, whenever requested by the president of the United      States, select so many suitable men from each band to      co-operate with him in maintaining order and peace on the      reservation as the president may deem necessary, who shall      receive such compensation for their services as congress may      provide.'

By the eleventh and last article it was provided that the term 'reservation,' as therein used, should be held to apply to any country which should be selected under the authority of the United States as their future home. The fourth article and part of the sixth article of the agreement, which referred to the removal of the Indians to the Indian territory, were omitted from its ratification, not having been agreed to by the Indians.

If this legislation has the effect contended for to support the conviction in the present case, it also makes punishable, when committed within the Indian country by one Indian against the person or property of another Indian, the following offenses, defined by the general laws of the United States as to crimes committed in places within their exclusive jurisdiction, viz.: Manslaughter, section 5341; attempt to commit murder or manslaughter, section 5342; rape, section 5345; mayhem, section 5348; bigamy, section 5352; larceny, section 5356; and receiving stolen goods, section 5357. That this legislation could constitutionally be extended to embrace Indians in the Indian country, by the mere force of a treaty, whenever it operates of itself, without the aid of any legislative provision, was decided by this court in the case of U.S. v. 43 Gallons of Whisky, 93 U.S. 188. See Holden v. Joy, 17 Wall. 211; The Cherokee Tobacco, 11 Wall. 616. It becomes necessary, therefore, to examine the particular provisions that are supposed to work this result.

The first of these is contained in the first article of the treaty of 1868, that 'if bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws.' But it is quite clear from the context that this does not cover the present case of an alleged wrong committed by one Indian upon the person of another of the same tribe. The provision must be construed with its counterpart, just preceding it, which provides for the punishment by the United States of any bad men among the whites, or among other people subject to thei authority, who shall commit any wrong upon the person or property of the Indians. Here are two parties, among whom, respectively, there may be individuals guilty of a wrong against one of the other-one is the party of whites and their allies, the other is the tribe of Indians with whom the treaty is made. In each case the guilty party is to be tried and punished by the United States, and in case the offender is one of the Indians who are parties to the treaty, the agreement is that he shall be delivered up. In case of refusal, deduction is to be made from the annuities payable to the tribe, for compensation to the injured person. a provision which points quite distinctly to the conclusion that the injured person cannot himself be one of the same tribe. Similar provisions for the extradition of criminals are to be found in most of the treaties with Indian tribes, as far back, at least, as that concluded at Hopewell with the Cherokees, November 28, 1785. 7 St. 18.

The second of these provisions, that are supposed to justify the jurisdiction asserted in the present case, is the eighth article of the agreement, embodied in the act of 1877, in which it is declared: 'And congress shall, by appropriate legislation, secure to them an orderly government; they shall be subject to the laws of the United States, and each individual shall be protected in his rights of property, person, and life.' It is equally clear, in our opinion, that these words can have no such effect as that claimed for them. The pledge to secure to these people, with whom the United States was contracting as a distinct political body, an orderly government, by appropriate legislation thereafter to be framed and enacted, necessarily implies, having regard to all the circumstances attending the transaction, that among the arts of civilized life, which it was the very purpose of all these arrangements to introduce and naturalize among them, was the highest and best of all,-that of self-government, the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs. They were nevertheless to be subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards, subject to a guardian; not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of the laws, but as a dependent community who were in a state of pupilage, advancing from the condition of a savage tribe to that of a people who, through the discipline of labor, and by education, it was hoped might become a self-supporting and self-governed society. The laws to which they were declared to be subject were the laws then existing, and which applied to them as Indians, and, of course, included the very statute under consideration, which excepted from the operation of the general laws of the United States, otherwise applicable, the very case of the prisoner. Declaring them subject to the laws made them so, if it effected any change in their situation, only in respect to laws in force and as existing, and did not effect any change in the laws themselves. The phrase cannot, we think, have any more extensive meaning than an acknowledgement of their allegiance, as Indians, to the laws of the United States, made or to be made in the exercise of legislative authority over them as such. The corresponding obligation of protection on the part of the government is immediately connected with it, in the declaration that each individual shall be protected in his rights of property, person, and life, and that obligation was to be fulfilled by the enforcement of the laws then existing appropriate to those objects, and by that future appropriate legislation which was promised to secure to them an orderly government. The expressions contained in these clauses must be taken in connection with the en ire scheme of the agreement as framed, including those parts not finally adopted, as throwing light on the meaning of the remainder; and looking at the purpose, so clearly disclosed in that, of the removal of the whole body of the Sioux nation to the Indian territory proper, which was not consented to, it is manifest that the provisions had reference to their establishment as a people upon a defined reservation as a permanent home, who were to be urged, as far as it could successfully be done, into the practice of agriculture, and whose children were to be taught the arts and industry of civilized life, and that it was no part of the design to treat the individuals as separately responsible and amenable, in all their personal and domestic relations with each other, to the general laws of the United States, outside of those which were enacted expressly with reference to them as members of an Indian tribe.

It must be remembered that the question before us is whether the express letter of section 2146 of the Revised Statutes, which excludes from the jurisdiction of the United States the case of a crime committed in the Indian country by one Indian against the person or property of another Indian, has been repealed. If not, it is in force and applies to the present case. The treaty of 1868 and the agreement and act of congress of 1877, it is admitted, do not repeal it by any express words. What we have said is sufficient at least to show that they do not work a repeal by necessary implication. A meaning can be given to the legislation in question, which the words will bear, which is not unreasonable, which is not inconsistent with its scope and apparent purposes, whereby the whole may be made to stand. Implied repeals are not favored. The implication must be necessary. There must be a positive repugnancy between the provisions of the new laws and those of the old. Wood v. U.S. 16 Pet. 342; Daviess v. Fairbairn, 3 How. 636; U.S. v. Tynen, 11 Wall. 88; State v. Stoll, 17 Wall. 425.

The language of the exception is special and express; the words relied on as a repeal are general and inconclusive. The rule is, generalia specialibus non derogant. 'The general principle to be applied,' said BOVILL, C. J., in Thorpe v. Adams, L. R. 6 C. P. 135, 'to the construction of acts of parliament is that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together.' 'And the reason is,' said Wood, V. C., in Fitzgerald v. Champneys, 30 Law J. Ch. 782; 2 Johns. & H. 31-54, 'that the legislature having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intent, by a general enactment afterwards, to derogate from its own act when it makes no special mention of its intention so to do.'

The nature and circumstances of this case strongly reinforce this rule of interpretation in its present application. It is a case involving the judgment of a court of special and limited jurisdiction, not to be assumed without clear warrant of law. It is a case of life and death. It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inab lity to understand it. It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality. It is a case, too, of first impression, so far as we are advised; for, if the question has been mooted heretofore in any courts of the United States, the jurisdiction has never before been practically asserted as in the present instance. The provisions now contained in sections 2145 and 2146 of the Revised Statutes were first enacted in section 25 of the Indian intercourse act of 1834. 4 St. 733. Prior to that, by the act of 1796, (1 St. 469,) and the act of 1802, (2 St. 139,) offenses committed by Indians against white persons, and by white persons against Indians, were specifically enumerated and defined, and those by Indians against each other were left to be dealt with by each tribe for itself, according to its local customs. The policy of the government in that respect has been uniform. As was said by Mr. Justice MILLER, delivering the opinion of the court in U.S. v. Joseph, 94 U.S. 614, 617:

'The tribes for whom the act of 1854 was made were those     semi-independent tribes whom our government has always      recognized as exempt from our laws, whether within or      wilthout the limits of an organized state or territory, and,      in regard to their domestic government, left to their own      rules and traditions, in whom we have recognized the capacity      to make treaties, and with whom the governments, state and      national, deal, with a few exceptions only, in their national      or tribal character, and not as individuals.'

To give to the clauses in the treaty of 1868 and the agreement of 1877 effect, so as to uphold the jurisdiction exercised in this case, would be to reverse in this instance the general policy of the government towards the Indians, as declared in many statutes and treaties, and recognized in many decisions of this court, from the beginning to the present time. To justify such a departure, in such a case, requires a clear expression of the intention of congress, and that we have not been able to find. It results that the first district court of Dakota was without jurisdiction to find or try the indictment against the prisoner; that the conviction and sentence are void, and that his imprisonment is illegal.

The writs of habeas corpus and certiorari prayed for will accordingly be issued.

title: Kan-Gi-Shun-Ca/Opinion of the Court


text: Talk:Kan-Gi-Shun-Ca/Opinion of the Court


text:
Young v. Duvall

[Statement of Case from 574 intentionally omitted]

Enoch Totten and F. W. Jones, for appellant.

''Jos. H. Bradley and A. B. Duvall'', for appellees.

HARLAN, J.

title: Young v. Duvall


text: Talk:Young v. Duvall

title: Talk:Young v. Duvall


text:
Young v. Duvall/Opinion of the Court

It is provided by the Revised Statutes of the United States, relating to the District of Columbia, that 'when any married woman shall be a party executing a deed for the conveyance of real estate or interest therein, and shall only be relinquishing her right of dower, or when she shall be a party with her husband to any deed, it shall be the duty of the officer authorized to take acknowledgments, before whom she may appear, to examine her privily and apart from her husband, and to explain to her the deed fully;' further, 'if upon such privy examination and explanation, she shall acknowledge the deed to be her act and deed, and shall declare that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it, the officer shall certify such examination, acknowledgment, and declaration, by a certificate annexed to the deed, and under his hand and seal,' to the effect indicated in the form prescribed by the statute. Rev. St. D. C. § 450. It is also provided that 'when a privy examination, acknowledgment, and declaration of a married woman is taken and certified and delivered to the recorder of deeds for record, in accordance with the provisions of this [the fourteenth] chapter, the deed shall be as effectual in law as if she had been an unmarried woman; but no covenant contained in this deed shall in any manner operate upon her or her heirs, further than to convey effectually her right of dower or other interest in the real estate which she may have at the date of the deed.' Id. § 452.

These statutory provisions being in force, there was placed upon record in the proper office in the District of Columbia, on the seventeenth day of November, 1875, a deed of trust purporting to have been executed by Mark Young and Virginia Young, his wife, and to have been, on the same day, acknowledged before B. W. Ferguson, a justice of the peace in and for the District of Columbia. The certificate of that officer, under his hand and seal, shows that the grantors were personally known to him to be the persons who executed the deed; that they personally appeared before him, in this district, 'and acknowledged the same to be their act and deed; and the said Virginia Young, wife of said Mark Young, being by me [him] examined privily and apart from her husband, and having the deed aforesaid fully explained to her, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it.' This deed of trust conveyed certain real estate in the city of Washington, the property of Mrs. Young, to the appellees, Duvall and Holtzman, in trust to secure the payment of a note executed by the grantors, whereby they promised to pay to the order of John Little, two years after date, at the National Metropolitan Bank, the sum of $8,000, with interest at the rate of 10 per cent. until paid. Neither Little nor the present holder of the note had any knowledge of the circumstances attending the execution of the deed. Default having occurred in the payment of the debt so secured, the trustees advertised the property for sale at public auction. Thereupon Mrs. Young instituted this suit for the purpose of preventing such sale and to obtain a decree declaring the deed of trust fraudulent and void, and requiring it to be surrendered for cancellation.

The bill sets forth several grounds upon which relief to that extent is asked, but those only deserve serious consideration which are embraced by averments, to the following effect: That the contents of the deed were never explained to her; that she signed it because she was required, ordered, and commanded to do so by her husband and a person who was with him; that its contents were never known or explained to her by the officer; that so far from her having been examined, in reference to the deed, privily and apart from her husband, the latter remained in the presence of herself and the officer on the occasion when it is claimed she signed, acknowledged, and delivered it. It was in proof that Mrs. Young signed the note and the deed, having an opportunity to read the papers before signing them; she was before an officer competent under the law to take her acknowledgment, and he came into her presence for the purpose of receiving it; he so came at the request of the husband, who expected, by means of the executed deed of trust, to secure a loan from John Little of the amount specified in the note; and she knew, or could readily have ascertained while in the presence of the officer, as well to what property the deed referred as the object of its execution. There is, however, a conflict in the evidence as to whether she willingly signed, sealed, and delivered the deed, or had its contents fully or at all explained to her by the officer, or was examined privily and apart from her husband.

It is not necessary to enter upon a review of the adjudged cases bearing upon the general question of the effect to be given to the certificate of an officer taking an acknowledgment of a married woman to a conveyance of real estate; for if it be assumed for the purposes of this case that it is only prima facie evidence of the facts stated in it, we are of opinion that the integrity of the certificate before us has not been successfully impeached. The certificate of the officer states every fact essential under the statute to make the deed, upon its being delivered for record, as effectual in law as if Mrs. Young was an unmarried woman. The duties of that officer were plainly defined by statute. It was incumbent upon him to explain the deed fully to the wife, and to ascertain from her whether she willingly signed, sealed, and delivered the same, and wished not to retract it. The responsibility was upon him to guard her against coercion or undue influence upon the part of the husband, in respect of the execution and delivery of the deed. To that end he was required to examine her privily and apart from the husband. These facts were to be manifested by a certificate under his hand and seal. Of necessity, arising out of considerations of public policy, his certificate must, under the circumstances disclosed in this case, be regarded as an ascertainment, in the mode prescribed by law, of the facts essential to his authority to make it; and if, under such circumstances, it can be contradicted, to the injury of those who in good faith have acted upon it,-upon which question we express no opinion,-the proof to that end must be of such a character as will clearly and fully show the certificate to be false or fraudulent. ''Ins. Co. v. Nelson'', 103 U.S. 544, 547. The mischiefs that would ensue from a different rule could not well be overstated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity in the titles to real estate which would inevitably follow from one less rigorous. It is sufficient for the disposition of this case to say that, even upon the assumption that the certificate is only prima facie evidence of the facts stated in it, the proof is not of that clear, complete, and satisfactory character which must be required to impeach the official statements of the officer who certified Mrs. Young's acknowledgment of the deed in question.

The decree must, therefore, be affirmed. It is so ordered.

title: Young v. Duvall/Opinion of the Court


text: Talk:Young v. Duvall/Opinion of the Court


text:
Providence New York Steam-Ship Company v. Hill Manufacturing Company

Moorfield Storey and ''Jos. H. Choate'', for plaintiffs in error.

S. A. B. Abbott and J. G. Abbott, for defendant in error.

BRADLEY, J.


text: Talk:Providence New York Steam-Ship Company v. Hill Manufacturing Company