text: Talk:Brobst v. Brobst (71 U.S. 2)/Opinion of the Court

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text: McGee v. Mathis

title: McGee v. Mathis


text: Talk:McGee v. Mathis

title: Talk:McGee v. Mathis


text:
McGee v. Mathis/Opinion of the Court

ERROR to the Supreme Court of Arkansas, the case, as stated by the Chief Justice in delivering the opinion of the court, being thus:

In 1850, the United States granted, by act of Congress, to the State of Arkansas, all the swamp and overflowed government lands within its limits, on condition that the proceeds of the lands, or the lands themselves, should be applied, as far as necessary, in reclaiming them for cultivation by means of levees and drains.

The State accepted the grant, and, by an act of the legislature, in 1851, provided for the sale of the lands; for the issue of transferable scrip receivable for any lands, not already taken up, at the time of selection by the holder; for contracts for the making of levees and drains, and for the payment of contractors in scrip or otherwise.

In the fourteenth section of this act it was provided that 'to encourage, by all just means, the progress and the completing of the reclaiming such lands, by offering inducements to purchasers and contractors to take up said lands, all said swamp and overflowed lands shall be exempt from taxation for the term of ten years, or until they shall be reclaimed.'

In 1855 this section was repealed, and provision was made by law for the taxation of swamp and overflowed lands, sold or to be sold, precisely as other lands.

The plaintiff in error, before this repeal, had become the owner, by transfer from contractors, of a large amount of the scriptissued under the act of 1851, and with this scrip, after the repeal, took up and paid for many sections and parts of sections of the granted lands lying in Chicot County.

In 1857 another act of the legislature, local in its nature, provided for the making of levees and drains in Chicot County, and authorized a special tax to meet the cost. This special tax was assessed upon the unreclaimed swamp lands of the plaintiff in error, as well as upon other lands, and the defendant in error, under authority of the act, proceeded to take the necessary measures for the collection of the tax.

The Constitution of the United States ordains that 'no State shall pass any law impairing the obligation of contracts.'

The plaintiff in error filed his bill in the proper State court, alleging that the acts of 1855 and 1857 impaired the obligation of the contract of the State with the United States, expressed in the grant by Congress in 1850 and its acceptance by the State; and also the contract between the State and the levee contractors, and other lawful holders of swamp land scrip, issued under the act of 1851, that such scrip should be receivable for unlocated swamp lands, and that such lands should not be subject to taxation for ten years from the time when taken up, or until reclaimed; and prayed an injunction to restrain the defendant in error from the collection of the taxes authorized by those acts.

In his answer to the bill, the defendant stated that the state and county taxes imposed on the lands of the complainant had been stricken out of the assessment by order of the County Court, and justified his proceeding as sheriff to collect the special levee tax under the act of 1857.

The cause was brought to hearing in the Supreme Court of Arkansas, by whose decree the bill of the complainant was dismissed, and it now came before this tribunal upon writ of error directed to that court.

Mr. Reverdy Johnson, with a brief of Mr. Garland, for the plaintiff in error:

We here controvert the validity of a statute passed through all branches of the law-making power, and afterwards, on argument, declared valid by the highest court of a State. Coming to such an office, we may be excused for some fulness of argument.

The plaintiff in error asserts that the act of 1857, familiarly known as the Levee Act, and under which his lands were taxed, is unconstitutional. And to show this, he maintains:

1st. The fourteenth section of the act of 1851, which exempted swamp lands from taxation for ten years, or until reclaimed, was a contract, it being a part of the law which accepted the grant from Congress.

2d. This levee act misuses and diverts from its proper channel the grant of Congress, inasmuch as the act of Congress of 1850 provides that, as far as necessary to the purpose of reclaiming swamp lands by means of levees and drains, the proceeds of the lands, whether from sale or by direct appropriation in kind, shall be applied in that way.

3d. That having received this scrip representing swamp land, which was issued to him on contracts made prior to the repeal of the fourteenth section of the act of January, 1851, although his lands were entered with this scrip after its repeal, they are as much exempt as if entered before the exempting clause was repealed.

In The State v. County Court of Crittenden, before the Supreme Court of Arkansas, it was held that the fourteenth section named above was a valid contract under the Constitution. As a contract, from the day of the passage of the act, it held out an encouragement to persons to take up these lands. It does not say from the day of entry, but it is general and operates necessarily from the day of its passage. When the legislature passed this law, exemption from taxation became at once one of the conditions of the acceptance of the grant. Until the legislature, by an act for that purpose, accepted the grant from Congress, it was of no avail, and could not be used for the benefit of any one. But when the legislature did accept it, the bounty was in a shape to be used; and whatever the legislature did in that behalf related back to the grant, and the act granting, as well as the one accepting, formed in themselves, together, one act-an entirety. Both stood then as material parts of the whole.

If, as we have contended, the two acts together made the grant complete, and they alone did this, the grant then became a contract, and any future changes of it were nullities.

If the law repealing the exempting clause stands, it is apparent that the whole grant falls to the ground. If an essential part of the grant be destroyed, it is a contradiction to say the grant still exists. The grant having been completed, the law would always dictate that it should be upheld and carried out. One rule of law is, that the contract should be supported, rather than defeated. And another, that, as in ordinary contracts, modifications or changes must be made by both parties, or with their knowledge and consent. So it is as to grants; the grantor must dispense with a condition before it is waived.

It is evident from the Levee Act, that its object was the attainment of the same end, and by the same means-that is, by leveeing-as contemplated by the act of Congress granting these lands to the State of Arkansas. For this object, Congress had put in the hands of the State a fund, by which she was to build these necessary levees, and the State was bound so to apply the fund. Her obligation to do this formed a part of the contract between her and the United States, and the owners of property have the right to have this contract performed by her. The granting act points out the purpose for which the grant was made. No other can be substituted. By the enactment of this levee law, the State declared, that the laying out and building of these levees in Chicot County was necessary. If so, there is a way already provided; that is, under the terms of the grant, the State must apply the lands granted to her. By this act, the State has attempted to discharge her contract in a different manner from that agreed upon. It amounts to this: she withholds the funds given her for a specific purpose, and to that extent she abrogates McGee's right, as well as the right of all property-holders there, under the act of Congress, to have those funds, or lands, applied to the building of levees; and besides this, imposes upon them additional burdens to complete the end which Congress had in view in making the grant. This is in the face of the grant. Every right the citizen or property-holder had under this grant is destroyed; and the grant thus misused and diverted is no bounty, but an oppression.

Under the law, a levee contractor might take his pay in lands, drained and leveed, or in scrip worth so much, each piece of scrip representing so many acres of land, and this scrip was made assignable, and could be located on any of the unlocated swamp lands. The law authorizing it stamped it with certain characters and properties; made it assignable, and made it the representative of so much land. No one can contend that any contractor took the scrip for itself, or for any inherent value in it, as so many dollars to him. With its value on its face, its negotiability, &c., it was at last but land. While the law made it the representative of land, it pointed out its ultimate destination, or purposes; that is, location upon swamp land. It gave the holder a right to so much land, and until it was located it had no value of itself. Independent of the idea of locating it, it was worthless. It might go from A. to B., and so on through numberless hands, but the last holder of it never received his rights under it till it was converted. Until then, its offices were incomplete.

We have seen that the law of this grant was a contract. This contract said, if A. will drain and levee 1000 acres of land, so as to reclaim the same, he will be paid therefor, if he desires, in swamp land scrip, with which he may enter lands, and such lands shall not be taxed for a period of ten years, or until reclaimed. A. does the work under this law, or this contract; how can his rights, or those of his assignee in the scrip, if there be one, be modified, restricted, or changed in the least? The original holder has the right, then, and the instrument assigned, or scrip transferred, carries its original legal liabilities into as many hands as it may chance to fall. Such is the well-settled rule as to all assignable paper. If, then, in a legal as well as a business point of view, the scrip was land; and if the land could not be taxed before the 11th day of January, 1855, how can that be taxed after that date which was the legal result or consequence of scrip issued prior to it? By what authority can the legal characters attaching to this paper, when issued, be changed? It might with equal propriety be said, that a holder of a promissory note, bearing ten per cent. interest upon its face, and allowed by law when it was executed, can be by a subsequent law deprived of the interest on the note, which was a part of the contract called for by settlement, as well as by the paper itself. Yet this cannot be done. This species of legislation, by which an attempt is made to abridge in any way the rights of a party to a contract already made and entered into, was fully expressed by this court in Suydam v. Broadnax et al.

This scrip issued to the levee contractor, carried along with it, by the law which created it, the contract that its fruits or its results should not be taxed; just as much so as the note we have instanced bears interest, and entitles its holder to receive such interest. Any act which enlarged, abridged, or in manner changed the intention of the parties, resulting from the stipulations in the contract, necessarily impaired it; any deviation from its terms, by postponing or accelerating the period of performance which it prescribed, imposing conditions not expressed in the contract, or dispensing with the performance of those expressed, however minute, or apparently immaterial in their effect upon it, impaired its obligation. The exemption, it is true, does not appear on the face of the scrip, nor does it appear either on the certificate of entry, and in both cases we are to fall back to the law for the exemption. It must be, beyond doubt, that when McGee received his scrip, it was his idea, as also that of the State, that whatever land he should locate with this scrip should be exempt from taxation. Now parties are always presumed to contract upon, and with a view to, the law. And in inquiries of this kind, could there be any doubt as to the law governing the contract, it is important to ascertain what each party did rely on. If this be true, the whole end and object, and the intention of the contract, are destroyed by taxing the land in question.

The case falls within and much resembles Hawthorne v. Calef, fully considered a year or two since. It was there decided that a State statute, repealing a former statute which made the stock of stockholders in a chartered company liable to the corporation's debts, is, as respects creditors of the corporation existing at the time of the repeal, a law impairing the obligation of contracts.

The point is decided, also, in Woodruff v. Trapnall, in this court. There, in 1836, the legislature of Arkansas chartered a bank, the whole of the capital of which belonged to the State, and the president and directors of which were appointed by the General Assembly. One section provided, 'that bills and notes of said institution shall be received in all payments of debts due to the State of Arkansas.' In 1845, this section was repealed. The court ruled that the notes of the bank in circulation at the time of the repeal were not affected by it; holding that, by attempting to discharge the contract by the payment of a smaller sum, or at a different time, or in a different manner, than the parties had agreed, impairs the obligation by substituting a contract which the parties never entered into, and to the performance of which they never consented.

Curran v. State of Arkansas et al. seems also in point. The court there said, that the bills of a bank being payable on demand, there was a contract with the holder to pay them; and laws which withdrew the assets of the bank into a different channel, impaired the obligation of this contract.

In none of the acts of the Arkansas legislature is the time in which the scrip is to be located limited. The holder of the scrip could wait and use his own option as to the time of locating his scrip. McGee, as such holder, prior to the 11th day of January, 1855, was not entitled merely to the quantity of land represented by this scrip, but, as an encour-agement, the additional benefit of an exemption of that land from taxation for ten years from the date of entry.

These lands, then, cannot be taxed for state, county, general, special, or any other purposes. They are entirely free from all taxes for the time named.

Mr. Carlisle, who submitted a brief of Mr. Hemstead, deceased, contra:

I. The question whether the levee law of 1857 impaired any contract, has been decided by the Supreme Court of Arkansas, in The State v. County Court of Crittenden County, referred to on the other side, where it was held that swamp and overflowed lands sold by the State, under the provisions of the act of 1851, while the 14th section thereof was in force, were, by contract between the State and purchaser, exempt from general taxation for ten years, unless sooner reclaimed, and that the exemption began at the date of the purchase from the State;-in other words, that the terms of the sale must be regarded as the controlling fact on which the exemption was to be founded, and that if a sale was made when the 14th section was in force, the exemption applied; but if made afterwards, that such lands were taxable for all purposes, like other lands.

This decision is correct, for it is swamp and overflowed land that is exempted from taxation, and nothing else; and therefore no contract could spring into being until the land had been purchased from the State.

The contractor for making levees might, indeed, do either of two things: take land in kind, or take land scrip. If he took scrip he might locate it, as the law then stood, upon any unselected swamp land in the State. But it did not follow that because a contractor held scrip he might continue to hold it as long as he pleased, and finally locate it on swamp land, and then have the land exempted from taxation for ten years.

We concede that lands purchased before the repeal of the fourteenth section of the act of 1851, were not taxable for public purposes for ten years. The Supreme Court of Arkansas said so in the case just referred to and cited on the other side, and that is the law of that case. But we deny that the claims of the plaintiff in error in the case now before this court can receive any benefits from that decision.

That court, in the case we have under review, thus referred to that decision, and thus treated the question. We adopt its language as our argument.

'In the offer of the State the exemption was held out as an inducement to purchasers and contractors to purchase, or, in the language of the act, 'to take up' the lands, and not as an inducement to contractors to take scrip. Until the offer was accepted, or, in other words, until a purchase was made, there was no contract. Did the State not have a right to withdraw her offer? Was she bound to wait, in order that the holders of the scrip, after speculation had ceased to be desirable, might have an opportunity to secure the exemption? The State was under no obligation, legal or moral, to do so. According to the plain provisions of the act of 1851, the contractor might take land in kind or take land scrip. It was left to his choice to do either. Various consideration might, and doubtless in many instances did, influence the contractor to take scrip instead of land in kind. If he took land it was to be at the price per acre previously fixed by the commissioners, and he was confined in his selection to such lands only as were reclaimed, however undesirable they might be. But if he took scrip, it could, as the law then was, be floated, and with it the contractor could purchase unselected swamp land, lying anywhere within the limits of the swamp land grant, at the same price per acre, even though the land thus purchased should be intrinsically more valuable than those which had been reclaimed. Again: the lands being wild and productive of no present income, the contractor might not be willing to invest the proceeds of his labor in them, and wait indefinitely for the fruits of the investment; whereas the scrip being assignable, he could, by receiving and selling it, realize its then present cash value. To take land in kind was one thing, and to take scrip was quite another. If the contractor took land, he became a purchaser, and acquired the exemption. But if he took scrip, he did not become a purchaser, and did not acquire the exemption. To hold that the State, in the offer to sell her swamp lands, as expressed in the fourteenth section of the act of 1851, proposed as an inducement to contractors to take scrip, that the lands which they might afterwards purchase with it should be exempt from taxation, would not only do violence to a settled rule of construction, which is, that privileges and exemptions granted by the State shall be strictly construed, and that nothing shall be held to have passed except what is clearly and explicitly granted, but would also be at war with what seems to us to be the plain reading of the statute.'

The fourteenth section was a gratuity or bounty offered to a small part of the community at the expense of the rest; and while it is true that those who availed themselves of it, by purchasing lands when it was in force, must have its benefits, yet those who did not can have no claim of that sort at all. They, at least, must take the law as they find it when they become the owners of swamp land by purchase from the State. They are not deceived. No faith has been broken. They are only called upon to contribute their mite to the support of a government which protects them and their property.

II. But supposing the fourteenth section had not been repealed, still the exemption in that section must be construed in reference to state and ordinary county taxes alone, and should not be held to embrace special or local assessments. Every exemption of property from taxation must be strictly received, and terms of ambiguity in the grant must operate against the grantee, and in favor of the public. In other words, nothing passes which is not clearly granted.

It will be observed that the fourteenth section of the act of 1851 exempts lands taken up from 'taxation.' This term does not embrace special local assessments where the fund raised is expended for the improvement of the property taxed. Legislative sanction of such assessments is ordinarily procured by the action of the parties interested, and is widely distinguishable from taxation from governmental or public purposes.

In The State v. ''New Orleans Nav. Co.'', Judge Martin says:

'The words impost, tax, or duty, must be confined to the idea which they commonly and ordinarily present to the mind,-exactions to fill the public coffers, for the payment of the debt and the promotion of the general welfare of the country, not to a contribution provided to defray the expenses of building bridges, erecting causeways, or removing obstructions in a water-course, to be paid by such individuals only who enjoy the advantages resulting from such labor and expense.'

'All navigable waters leading into the St. Lawrence and Mississippi, and the carrying-places between the same, shall be common highways, and forever free, as well to the inhabitants of the territory as the citizens of the United States, or those of any other state that may be admitted into the confederacy, without any impost, tax, or duty therefor.'

This provision was literally copied in the act of Congress of March 2d, 1805, and it was held in the case from which Judge Martin's remarks are quoted, that the charter of the New Orleans Navigation Company, which authorized a tax to be levied on vessels navigating the Mississippi, for the purpose of raising a fund to be applied to the improvement of that navigation, was not a tax, or impost, or duty within the meaning of the act of Congress, or the ordinance from which it was copied.

Under a law of Louisiana, the owner of land on the Mississippi River was required to construct levees or embankments; and if the owner failed to construct or keep in repair his portion of the levee, the district inspector had the levee built or repaired, and assessed the cost upon the land of the delinquent proprietor. And in Crowley v. Copley, this assessment was held not to be within the act of Congress, which exempted from State taxation all public lands of the United States for five years after sale by the government.

In The matter of the Mayor of New York, certain churches insisted that their lots were exempt from assessments for opening, enlarging, or otherwise improving streets in the city of New York, made pursuant to an act of legislature, passed in 1813. The court said that 'these assessments were intended and directed to be made upon the owners of lands and lots who might receive 'benefit and advantage' by the improvement. The exemption granted by the act of 1801 was in the general act for the assessment and collection of taxes; and the provisions of that act referred to general and public taxes to be assessed and collected for the benefit of the town, county, or state at large. The words of the exemption were, that no church, or place of public worship, nor any school-house, should be taxed by any law of this State. The word 'taxes' meant burdens, charges, or impositions put or set upon persons or property for public uses, and this was the definition which Lord Coke gives to the word talliage, and Lord Holt gave the same definition, in substance, to the word 'tax.' To pay for the opening of a street, in a ratio to the benefit or advantage derived from it, was no burden. It was no talliage or tax, within the meaning of the exemption.'

In Northern Liberties v. St. John's Church the same question arose, and the Supreme Court of Pennsylvania put the same construction on the word 'tax,' and held that the church property, though exempt from taxation under the general revenue law, was nevertheless subject to local assessments, appropriated to the improvement of the property itself.

The same principle has been decided by the Supreme Court of Arkansas, in Washington v. The State, and by the highest court in Missouri, in Egyptian Levee Co. v. Hardin.

The cases, in short, show the uniform construction which the judiciary have put upon the terms, 'taxes,' and 'taxation,' as employed in their constitutions and revenue laws. And when we apply the rule, already alluded to, that exemptions must be strictly construed, it becomes clear that the fourteenth section of the act of 1851 did not intend to exempt swamp lands from special local assessments, to be expended for the benefit of the lands themselves, by making and repairing levees to protect them; and if the levee act of 1857 has that object in view only, it is obnoxious to no constitutional objection, whether repealed or unrepealed, and the obligation of no contract was impaired, because, as to that, no contract ever existed.

The CHIEF JUSTICE delivered the opinion of the court, and after stating the case, proceeded:

The first question which requires consideration in the case before us is: Was the levee tax imposed in violation of any contract between the State and the United States?

It is not doubted that the grant by the United States to the State upon conditions, and the acceptance of the grant by the State, constituted a contract. All the elements of a contract met in the transaction,-competent parties, proper subject-matter, sufficient consideration, and consent of minds. This contract was binding upon the State, and could not be violated by its legislation without infringement of the Constitution.

The contract required the State to appropriate the lands granted to the purpose of reclaiming them. The lands themselves might be conveyed to the levee contractors for work performed, or the contractors might be paid in money or in scrip representing land. If the State, therefore, after acceptance of the grant, and without applying the lands or their proceeds in money or scrip to the purpose of reclamation, had sought, by means of taxation, to compel purchasers to pay for the levees and drains necessary to reclaim their land, it would certainly be difficult to say that the contract was not violated. But the case before us hardly comes within this description. The allegation and proofs do not show that the State had not applied all the lands granted and their proceeds to the making of levees and drains before proceeding to impose the special tax; and if this was done, and the work of reclamation remained still incomplete, the imposition of such a tax for the completion or preservation of the work, cannot be regarded as inconsistent with the obligation of the contract between the State and the United States.

The next and only remaining question is: Was the levee tax in violation of any contract between the State and the complainant?

It seems quite clear that the act of 1851, authorizing the issue of transferable land scrip and its receipt from locators of land in payment, and the provision in the fourteenth section, offering inducements to purchasers and contractors by exempting from taxation, for ten years or until reclaimed, all the swamp or overflowed lands, constituted a contract between the State and the holders of the land scrip issued under the act.

When the scrip was issued to a contractor, it represented a certain quantity of land untaxable for ten years, unless the land should be sooner made fit for cultivation. When transferred to another person, it represented to him a like quantity of like land. The contract of the State was to convey the land for the scrip, and to refrain from taxation for the time specified. Every piece of scrip was a contract between the State and the original holder and his assigns. Now what was the effect of that contract when made? Did it not bind the State to receive the scrip in payment for swamp land, exempted for a limited time from taxation? The scrip, if not receivable for lands, was worthless. To annul the quality of receivability was to annul the contract. But the exemption of the lands for which it was receivable from taxation was a principal element in its value; and repeal of the exemption was the destruction of this element of value. This was clearly an impairment of the contract. The State could no more change the terms of the contract by changing the stipulated character of the land to be conveyed in satisfaction of the scrip as to liability to taxation, than it could abrogate the contract altogether by refusing to receive the scrip at all in payment for land.

We are constrained to regard the repeal of the exemption act, so far as it concerns lands paid for, either before or after the repeal, by scrip issued and paid out before repeal, as impairing the contract of the State with the holders of the scrip.

It was strenuously urged for the defendant, that the exemption contemplated by the statute was exemption from general taxation, and not from special taxation for local improvements benefiting the land, such as the making of levees; and many authorities were cited in support of this view. The argument would have great force if the provision for exemption had been contained in a general tax law, or in a law in framing which the legislature might reasonably be supposed to have in view general taxation only. But the provision under consideration is found in a law providing for the construction of levees and drains, and devoting to that object funds supposed to be more than adequate, derived from the very lands exempted, and the exemption is for ten years, or until reclaimed, and is offered as an inducement to take up the lands, and thus furnish those funds. It is impossible to say that this exemption was not from taxation for the purpose of making these levees and drains as well as from taxation in general. Any other construction would ascribe to the legislature an intention to take the whole land for the purposes of the improvement, and then to load it with taxation for the same object, in the hands of purchasers whom it had led to expect exemption from all taxation, at least until the land should be reclaimed.

The decree of the Supreme Court of Arkansas must, therefore, be reversed and the cause remanded, with instructions to enter a

DECREE IN CONFORMITY WITH THIS OPINION.

N. B. The same order was made in cases Nos. 28, 29, 30, 31, 32, and 33, argued with the above case, and which the Chief Justice said were governed by its decision.

title: McGee v. Mathis/Opinion of the Court


text: Talk:McGee v. Mathis/Opinion of the Court


text:
United States v. Hoffman (71 U.S. 158)

ON a motion for prohibition.

At the last term of this court the relator made application for a writ of prohibition to the judge of the District Court of the Northern District of California, to prevent that court from proceeding further in a certain cause in admiralty. This court, without looking into the question of the alleged want of jurisdiction, granted a rule on the judge of that court to show cause why the writ should not be issued; and an order accompanied the rule, that he should proceed no further in the case until the decision of this court in the premises.

The return of the judge to that rule was now before this court. The substance of it was, that after the rule had been served upon him the libellant in the admiralty suit came into court, and moved for permission to pay all the costs that had accrued, and to dismiss his suit. After hearing argument the court granted the motion, and the libellant, having paid all the costs of both parties, an order was made dismissing the suit.

The relator now asked that the writ of prohibition might issue notwithstanding the return, and whether it should or not, presented the question to be here decided.

The suggestion of the relator, it may be here mentioned, stated that four other suits in admiralty against vessels owned by him, and founded on libels of the same character as the libel in this case, were pending in the same court.

Mr. Carlisle, in support of the motion:

The only fact stated in the return which can be alleged as cause why the prohibition should not issue, is that the libel has been dismissed by the order of the District Court.

This, however, was done after the rule was issued, and after it had been served, and against the objection of the party here suing for the prohibition, and while the question of the writ was sub judice, and was against the express mandate in the rule, that further proceedings in the said District Court upon the said libel be stayed until the further order of this court in the premises. It is therefore wholly impertinent to the return, and is at best mere surplusage.

But if such subsequent proceedings be properly before the court they present no objection to the writ. The law upon this subject is fully stated by Lord Coke, in his second Institute.

'Objection. As touching the time when prohibitions are granted, it seemeth strange to us that they are not only granted at the suit of the defendant in the ecclesiastical court after his answer, whereby he affirmeth the jurisdiction of the said court, and submitted himself unto the same; but also after all allegations and proofs made on both sides, when the cause is fully instructed and furnished for sentence; yea, after sentence; yea, after two or three sentences given, and after execution of the said sentence or sentences, and when the party for his long-continued disobedience is laid in prison upon the writ of excommunicato capiendo; which courses, forasmuch as they are against the rules of the common law in like cases (as we take it), and do tend so greatly to the delay of justice, vexation, and charge of the subject, and the disgrace and discredit of his majesty's jurisdiction ecclesiastical, the judges (as we suppose), notwithstanding their great learning in the laws, will hardly be able in defence of them to satisfy your lordships.'

'Answer. Prohibitions by law are to be granted at any time to restrain a court to intermeddle with or execute anything which by law they ought not to hold plea of, and they are much mistaken that maintain the contrary. And it is the folly of such as will proceed in the ecclesiastical court for that whereof that court hath not jurisdiction, or in that whereof the king's temporal courts should have the jurisdiction. And so themselves (by their extraordinary dealing), are the cause of such extraordinary charges, and not the law; for their proceedings in such case are coram non judice. And the king's courts that may award prohibitions, being informed either by the parties themselves, or by any stranger, that any court temporal or ecclesiastical doth hold plea of that (whereof they have not jurisdiction), may lawfully prohibit the same as well after judgment and execution as before.'

And the law continues the same to this day.

The authorities, however, cited in the note, fall short of the present case, and the books, it is believed, furnish no instance of an inferior court proceeding in any direction or to any degree in the suit before it, while the very question of its jurisdiction was pending upon a motion for a prohibition in a superior court. Still less can any case be found of an inferior court so proceeding in the face of an express mandate to stay all proceedings in the premises until further order.

To allow the prohibition to be defeated in this manner, would not only be against principle and precedent, but injurious and vexatious to the party suing here.

It appears by the suggestion that other suits by libel against the vessels of the same party are pending in the same court, under similar circumstances. If that court has no jurisdiction in the premises, the prohibition in the present case would have disposed of all the others. But if the proceeding set up by the return be sanctioned, the same thing may be repeated in each of those cases; and in this manner onerous costs may be put upon the party suing for, and, as is here assumed, entitled to the protection of this court, while he is still left exposed to the assertion of the same unfounded jurisdiction.

In the analogous case of an injunction, even where the defendant admitting the wrong discontinues it, and promises not to repeat it, the complainant is, nevertheless, entitled to the judgment of the court for his protection.

By much greater reason should the prohibition issue in this case, as the question is one of jurisdiction, in which the public is concerned, when the writ will issue upon the suggestion of a stranger to correct a usurpation, as the authorities above cited show; whereas, in the absence of the writ, the records of the District Court can only show that the libellant there, for some undisclosed reason, thought proper to withdraw his suit; the judge, by the record, still affirming his jurisdiction, as to which he intimates no doubt in his return.

Mr. Justice MILLER delivered the opinion of the court.

title: United States v. Hoffman (71 U.S. 158)


text: Talk:United States v. Hoffman (71 U.S. 158)


text:
United States v. Hoffman (71 U.S. 158)/Opinion of the Court

The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act; and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction. In the case before us the writ, from its very nature, could do no more than forbid the judge of the District Court from proceeding any further in the case in admiralty.

The return shows that such an order is unnecessary, and will be wholly useless, for the case is not now pending before that court, and there is no reason to suppose that it will be in any manner revived or brought up again for action. The facts shown by the return negative such a presumption.

Counsel has argued very ingeniously that the case should be considered as remaining in the court below, in the same position as it was when the issued from this court; but we cannot so regard it. By the action of the libellant and the consent of the court, the case is out of court, and the relator is no longer harassed by an attempt to exercise over him a jurisdiction which he claims to be unwarranted. If the return shows no more, it shows that the district judge has no intention of proceeding further in that case. Now, ought the writ to issue to him under such circumstances? It would seem to be an offensive and useless exercise of authority for the court to order it.

The suggestion that there are or may be other cases against the relator of the same character can have no legal force in this case. If they are now pending, and the relator will satisfy the court that they are proper cases for the exercise of the court's authority, it would probably issue writs instead of a rule, but a writ in this case could not restrain the judge in the other cases by its own force, and could affect his action only so far as he might respect the principle on which the court acted in this case. We are not prepared to adopt the rule that we will issue a writ in a case where its issue is not justified, for the sole purpose of establishing a principle to govern other cases.

We have examined carefully all the cases referred to by counsel which show that a prohibition may issue after sentence or judgment; but in all these cases something remained which the court or party to whom the writ was directed might do, and probably would have done, as the collection of costs, or otherwise enforcing the sentence.

Here the return shows that nothing is left to be done in the case. It is altogether gone out of the court.

These views are supported by the following cases:

In United States v. Peters, which was an application for prohibition to the admiralty, this court suspended its decision to give the libellant an opportunity to dismiss his libel. The court finally issued the writ, but there seems no reason to doubt, from the report of the case, that it would have considered such action by the libellant as an answer to the request for the writ.

In the case of Hall v. Norwood -a very old case, when writs of prohibition were much more common than now-a prohibition was asked to a court of the Cinque Ports at Dover. While the case was under consideration, the reporter says: 'On the other hand the court was informed that they had proceeded to judgment and execution at Dover, and therefore that they move here too late for a prohibition, and of this opinion was the court, since there is no person to be prohibited, and possessions are never taken away or disturbed by prohibitions.' The marginal note by the reporter is this: 'Prohibition will not lie after the cause is ended.'

The rule heretofore granted in this case is

DISCHARGED.


text: Talk:United States v. Hoffman (71 U.S. 158)/Opinion of the Court


text:
Walker v. United States (71 U.S. 163)

THE United States had recovered judgment against Walker in the Circuit Court for the Eastern District of Louisiana, 'for the sum of $2000, with interest thereon at the rate of six per cent.,' &c., and the case was now here on writ of error. Mr. Ashton, Assistant Attorney-General, citing the twenty-second section of the Judiciary Act of 1789, which gives a right to review in this court over judgments of the Circuit Courts 'where the matter in dispute exceeds the sum or value of $2000,' now moved to dismiss the writ; the matter in dispute, as he argued, not exceeding $2000, but being just equal to it. He observed that in Knapp v. Banks, in this court, where the motion was to dismiss a writ where the judgment was for $1720, but with interest added exceeded $2000, the court granting the motion had indeed said in its order, 'that where the plaintiff in the court below claims $2000 or more, and the ruling is for a less sum, he is entitled to a writ.' But this, the counsel argued, was said obiter only, and could not be maintained.

No one appeared against the motion.

The CHIEF JUSTICE delivered the opinion of the court.

title: Walker v. United States (71 U.S. 163)


text: Talk:Walker v. United States (71 U.S. 163)


text:
Walker v. United States (71 U.S. 163)/Opinion of the Court

By the terms of the twenty-second section of the Judiciary Act the jurisdiction of this court to re-examine the judgments of the Circuit Court, is limited to cases where the matter in dispute exceeds the sum or value of two thousand dollars.

It has been a good deal controverted whether sum or value in controversy is to be determined by reference to the amount claimed or the amount of the judgment, or the amount in dispute in this court. It has been long settled, however, that when the judgment is for the defendant or for the plaintiff, and for less than two thousand dollars, and the plaintiff sues out the writ of error, this court has jurisdiction if the damages claimed in the declaration exceed that sum; but that if the judgment is for plaintiff and not more than two thousand dollars, and the defendant prosecutes in error, this court has not jurisdiction, for the amount in controversy, as to the defendant, is fixed by the judgment. In determining the jurisdictional sum or amount it is obvious that neither interest on the judgment nor costs of suit can enter into the computation, for costs form no part of the matter in dispute, and interest on the judgment can only arise after rendition, while the jurisdictional amount, if determined by the judgment, is fixed at rendition. And this was settled in Knapp v. Banks. In that case some expressions in the opinion and in the order seem to support the idea that if the amount of the matter in controversy is precisely two thousand dollars a writ of error will lie. But the attention of the court was not directed to such a case, and we are not aware that such a case until now was ever before the court. But there is nothing doubtful in the rules applicable to it. This court has no appellate jurisdiction, except such as is defined by Congress. The act of Congress limits this jurisdiction to cases where the matter in dispute exceeds two thousand dollars. We can no more take jurisdiction where the matter does not exceed than we can where it is less than that sum. The amount in controversy in the case before us, ascertained in conformity with the settled principles of the court, does not exceed two thousand dollars. We have, therefore, no jurisdiction of the writ of error, and it must be

DISMISSED.


text: Talk:Walker v. United States (71 U.S. 163)/Opinion of the Court


text:
Brown v. Wiley (71 U.S. 165)

A PETITION was filed in the Orphans' Court of the District of Columbia, by John Wiley and Emily his wife, setting forth that the said Emily was the child of Tillotson Brown, deceased, and his sole heir and distributee; that her mother, Elizabeth Brown, the widow of the said Tillotson, had duly administered upon his estate; that a surplus was left in her hands from the assets of the estate, and praying that such portion of the same as the petitioner was entitled to might be paid over to her.

Marshall Brown filed an answer to the petition, setting forth that he was the brother of said Tillotson, and alleging that the said Tillotson was never married to the said Elizabeth Brown, and that if he ever was so married, the petitioner, Emily Wiley, was not his child.

Thereupon the Orphans' Court, on the 10th of February, 1863, sent the following issues to the Circuit Court of the District of Columbia:

1st. Whether the petitioner, Emily Wiley, was the child of the said Tilloson?

2d. Whether the said Tillotson was ever married to the mother of said Emily?

3d. Whether, after the said marriage, the said Tillotson ever acknowledged the said Emily to be his child?

After this, that is to say, March 3d, 1863, an act of Congress abolished the Circuit Court, and established in its stead the Supreme Court of the District of Columbia.

The issues were submitted to a jury, at a special term of this Supreme Court, November, A.D. 1865, and a verdict rendered thereon in the affirmative on all the questions.

A motion for a new trial was made, on exceptions taken at the trial, which was heard before all the four judges at a general term of the Supreme Court of the District of Columbia, in the manner prescribed by the statute constituting the court. The motion was overruled, and the cause remanded with directions that the same should be proceeded in according to law.

Thereupon an order was entered by the court, before which the issues had been tried, directing that the finding of the jury on the issues sent from the Orphans' Court be certified by the clerk to said Orphans' Court.

The writ of error in this case was sued out, that the foregoing order might be brought up to this court.

It is proper here to remark that, by the eleventh section of the act of March 3d, 1863, abolishing the Circuit Court of the district, and establishing in its stead the Supreme Court, any final judgment, order, or decree of said court may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same cases and in like manner as is now provided by law in reference to final judgments, orders, or decrees of the Circuit Court of the United States for the District of Columbia;' and that in the Circuit Court referred to, as was provided by the law establishing it (an act of 1801), any final judgment, order, or decree,'. . . wherein the matter in dispute exceeded the value of $100, might 'be re-examined, reversed, or affirmed in this court.' It may also be mentioned, that by the eighth section of the act of 1863, it is enacted, 'that if upon the trial of any cause an exception be taken,. . . it may be stated in writing in a case, or in a bill of exceptions, with so much of the evidence as may be material to the questions to be raised. . . . The justice who tries the cause may in his discretion entertain a motion to set aside a verdict and grant a new trial, upon exceptions, or for insufficient evidence, or for excessive damages.'

A motion having been previously made and argued by Mr. Bradley, for a certiorari to supply an alleged diminution of the record, and by ''Mr. Merrick, contra-Messrs. Brent and Merrick'' now moved to dismiss the case for want of jurisdiction.

In support of the motion. The right of appeal from the Supreme Court of the district is no greater under the act of 1863 constituting it, than was the right of appeal from the old Circuit Court, under the act of 1801, constituting it. In either case the writ of error lay only to 'a final judgment, order, or decree.' Now, the matter in contest in the Orphans' Court was the right to a certain surplus. The suit between the parties has to remain pending until a decree in the Orphans' Court is pronounced, giving it to one party on to the other. The certificate from the Supreme Court is nothing more than evidence of the finding of a jury upon the trial of the issue. It but certifies a fact; that is to say, that the jury had so found. The case is like Van Ness v. Van Ness, A.D. 1848, in which,-on an issue sent out of the Orphans' Court to the old Circuit Court, whose place the Supreme Court of the district supplies, to ascertain whether a certain Mary Ann Van Ness was the wife of J. P. Van Ness, a case, therefore, much like this,-Taney, C. J., says: 'The order of the Circuit Court directing a fact to be certified to another court to enable it to proceed to judgment, can hardly be regarded as a judgment order or decree, in the legal sense of these terms as used by the act of Congress. Certainly, it is not a final judgment; for it does not put an end to the suit in the Orphans' Court, as that court alone can dismiss the petition of the plaintiff which is there pending; and no other court has the power to pass a judgment upon it.'

Messrs. Bardley and Davidge contra:

Neither the act of 1801 nor of 1863 requires the final judgment or order to be rendered in a suit pending in a court as required by the Judiciary Act of 1789, § 22. Whilst under that act only final judgments or decrees can be re-examined, the jurisdiction as respects this district is broader and embraces all final judgments, orders, or decrees.

The only matters in controversy in the Orphans' Court were those embraced in the issues sent for trial into the court below. The verdict of the jury destroyed the claim of Marshall Brown to the succession.

The judgment of the Supreme Court of this district, overruling the exceptions and remanding the cause to the judge holding the Circuit Court to be proceeded in according to law, was, in substance, a judgment or order that the certificate should issue. The inferior tribunal had no discretion. There is a judgment to the effect that there is no error in the exceptions, and ordering the issue, by a subordinate tribunal, of a certificate to another court, upon receipt of which, that court must pronounce a judgment which destroys the claim of the plaintiff in error.

Such a judgment is a final judgment or order within the meaning of the act of February 27th, 1801.

As the law stood when Van Ness v. Van Ness was tried, the Circuit Court had not the power to enter judgment. It could, after the verdict was rendered, grant a new trial, but it could do nothing more. A new trial was not applied for; but, had it been, a mere application to the discretion of the court would not have supported a writ of error. The Circuit Court had no power to do more than certify the finding of the jury. That really was no judgment or order in any legal sense. It was simply a certificate of a physical fact of record, and is so treated in Van Ness v. Van Ness.

By the eighth section of the act of 1865, at the trial of any cause, the right to except is allowed. And under that clause the right to a new trial is absolute, if any exception be sustained. The right is not addressed to the discretion of the court. To put any such construction upon it, would necessarily destroy the right of appeal to this court.

The distinction, then, between Van Ness v. Van Ness and the present case is, that in the former the Circuit Court had no control over the verdict, save simply to grant, in its discretion, a new trial, which was never applied for; and the refusal to grant which, if asked, could not support a writ of error. Whilst in this case the verdict was in the keeping of the Supreme Court of the district, whose duty it was, for any error duly excepted to at the trial, to order a venire de novo.

Any other construction of the first clause of the eighth section of the act of March 3, 1863, would deprive a party aggrieved of redress of writ of error from this court, which was not the intention of Congress, and expressly declared by the eleventh section of that act.

The CHIEF JUSTICE delivered the opinion of the court.

title: Brown v. Wiley (71 U.S. 165)


text: Talk:Brown v. Wiley (71 U.S. 165)

title: Talk:Brown v. Wiley (71 U.S. 165)


text:
Brown v. Wiley (71 U.S. 165)/Opinion of the Court

This cause is before us upon a motion to dismiss the writ of error.

On the 10th of February, 1863, certain issues of fact were sent by the Orphans' Court of Washington County, District of Columbia, to the Circuit Court of the district to be tried by a jury.

These issues were transferred, by the act of Congress of March 3, 1863, to the Supreme Court of the District of Columbia, and were brought to trial in November, 1865, before that court, held by a single judge, in special term. All the issues were determined in the affirmative by the jury, under the rulings of the judge. Exceptions were taken to the rulings, and a motion for new trial was made in general term, before all the judges, and was overruled. Subsequently, an order was made at special term certifying the finding of the jury on the issues to the Orphans' Court.

The record of these proceedings is brought here by writ of error.

The case, in almost every particular, is identical with that of Van Ness v. Van Ness. In that case, as in this, an issue of fact was sent out of the Orphans' Court to the Circuit Court to be tried by a jury; was tried and found in the negative. Exceptions were taken to the rulings upon the trial, and an order was made certifying the finding to the Orphans' Court. The proceeding was brought into this court by writ of error, which was dismissed for want of jurisdiction.

It is true that in the case before us the exceptions were taken to the rulings at special term; and that a motion for new trial was heard at general term, and was denied, whereas it does not appear that there was any motion for new trial in the case of Van Ness, and it was insisted in argument that this difference in proceeding distinguishes the two cases, so that the latter cannot be regarded as an authority in the decision of the former.

We are unable to perceive that the difference is material. The order certifying the finding to the Orphans' Court, in the case of Van Ness, was identical in effect with the two orders overruling the motion for new trial, and certifying the finding in the case before us. In each case the exceptions taken at the trial before the jury were overruled, and nothing was left for action in the court before which the issues were tried; but the cause went to the Orphans' Court for final judgment.

In that case it was held that the order was not one which could, under the act, be re-examined on writ of error, and we see no reason for a different ruling in this.

It was argued that the act organizing the Supreme Court of the district gives this court jurisdiction of this case by writ of error. We do not think so. That act expressly provides that any final judgment, order, and decree of the District Supreme Court may be re-examined upon writ of error or appeal, 'in the same cases and in like manner as provided by law in reference to the final judgments, orders, and decrees of the District Circuit Court.' It is clear, therefore, that the action of the former court can be re-examined here in no case in which like action in the latter court could not be re-examined.

The only real difference between the two statutes is that the latter gives an appeal from a decision of the single judge at special term, on a motion for new trial, to the whole court at general term, or secures an original hearing of the motion in general term. This is an advantage to the unsuccessful party not formerly enjoyed, but it makes no changes as to re-examination upon appeals or writs of error in this court.

The court has considered the motion for a certiorari to supply alleged defects in the record; but, after a careful comparison of the suggestions of counsel with the record before us, and the act establishing the Supreme Court for the District of Columbia, we are satisfied that the granting of the motion would avail nothing to the plaintiff in error. It must, therefore, be overruled. And the writ of error must be

DISMISSED FOR WANT OF JURISDICTION.


text: Talk:Brown v. Wiley (71 U.S. 165)/Opinion of the Court


text:
Locke v. New Orleans

THE legislature of Louisiana enacted, A. D. 1850—

'That each of the municipalities of said city shall be and is hereby empowered to levy a tax on capital on the assessment roll for the year 1848, and a tax on capital on the assessment roll for the year 1849: Provided, that the taxes on capital on said assessment rolls, for the years 1848 and 1849, shall not exceed the amounts already imposed by existing ordinances of the said municipalities.'

Under the authority of this act the City of New Orleans, having levied a tax on capital owned and employed during the years mentioned by Locke, brought suit to enforce its payment. One defence set up was that the act was unconstitutional. The Supreme Court of the State having, on appeal from the District Court, whose judgment it affirmed, decided that it was not, the case was now brought here for review.

''Mr. Janin for the plaintiff in error. No opposite counsel''.

Mr. Justice FIELD delivered the opinion of the court.

title: Locke v. New Orleans


text: Talk:Locke v. New Orleans

title: Talk:Locke v. New Orleans


text:
Locke v. New Orleans/Opinion of the Court

The legislature of Louisiana in 1850 passed an act authorizing each of the municipalities of the City of New Orleans to levy a tax on capital within its limits on the assessment rolls of 1848 and 1849, not to exceed the amounts imposed by existing ordinances. The present action was instituted to recover, in part, the amount of the tax levied under this act upon capital owned and employed by the defendant in one of the municipalities. As a defence the defendant, among other things, alleged the unconstitutionality of the act of the legislature authorizing the tax. The District Court, in which the action was brought, gave judgment for the city, and the Supreme Court of the State affirmed the judgment.

The unconstitutionality of the act was asserted from its supposed retroactive operation, upon the notion that the prohibition of the Federal Constitution upon the States to pass an ex post facto law extended to all retrospective laws.

There was nothing in the position taken which entitled it to consideration. In the first place the act was not subject to the imputation of being retrospective. It did not operate upon the past, or deprive the party of any vested rights. It simply authorized the imposition of a tax according to a previous assessment. In the second place, even if the law had been strictly retrospective, it would not have been within the constitutional inhibition. Ex post facto laws embrace only such as impose or affect penalties or forfeitures; they do not include statutes having any other operation. The term ex post facto, literally construed, would apply to any act operating upon a previous fact, yet the restricted sense stated is the one in which it has always been held. It was the sense in which it was understood at the time the Constitution was adopted, both in this country and in England.

JUDGMENT AFFIRMED.


text: Talk:Locke v. New Orleans/Opinion of the Court


text:
Sturdy v. Jackaway

STURDY brought ejectment against Jackaway in one of the State courts of Arkansas to recover a tract of land in that State, the action being brought not in the English fictitious form used still in some States of the Union, but in the way now more common with us-and which prevails in Arkansas-where the parties sue, as in other cases, in their true names, and where the land claimed is described so as to be capable of complete identification. Judgment was given for the defendant; and the case having gone to the Supreme Court of Arkansas the judgment was there affirmed. He then brought another ejectment for the same premises in the Circuit Court of the United States for the Eastern District of Arkansas, and the defendant having pleaded the former judgment the plaintiff demurred. The judges of the Circuit Court being opposed in opinion as to the sufficiency of the demurrer, the following questions were certified to the court:

1st. Is said plea good in law as a bar to this action?

2d. Is a final judgment pronounced in an action of ejectment, where the claim of title in fee simple absolute by the parties respectively was the sole subject of controversy, instituted and prosecuted under and according to the forms and in the manner prescribed by the statute laws of the State of Arkansas, a valid, legal bar to a like action, subsequently instituted between the same parties, for the same lands or premises, involving the same identical title and rights to the possession of such lands or premises, and none other?

There was nothing shown by the record or otherwise to indicate that the statute law of Arkansas made a distinction between ejectment and other actions as to the conclusiveness of a verdict and judgment.

''Mr. Carlisle, with a brief of Mr. Watkins, for the defendant. No counsel contra''.

Mr. Justice GRIER delivered the opinion of the court.

title: Sturdy v. Jackaway


text: Talk:Sturdy v. Jackaway

title: Talk:Sturdy v. Jackaway


text:
Sturdy v. Jackaway/Opinion of the Court

The two questions certified by the court below constitute but one.

It is a well-settled principle of the common law 'that in personal actions concerning debts, goods, and effects (by way of distinction from other actions), a recovery in one action is a bar to another. This principle is not true of personal actions alone, but is equally and universally true of all actions, whatsoever quoad their subject-matter; and that an allegation on record, on which issue has been once taken and found, is, between the parties taking it and their privies, conclusive, according to the finding thereof, so as to estop the parties respectively from again litigating that fact once tried and found.'

The action of ejectment was devised for a lessee of a term of years, who was ousted of his term, and who, having but a chattel interest, could not support a real action to recover possession. It was but an action of trespass in effect, and the remedy was in damages only for the dispossession. But afterward the court determined the lessee should not only recover damages, but also his term, which soon brought the action into general use; and, by the formal scaffolding of a lease, entry, and ouster, the action was converted into a method of trying, collaterally and incidentally, the title of the lessor.

Hence, as the title of the freehold was never formally and directly is issue by the pleadings, but only a trespass committed by John Doe on Richard Roe, in forcibly expelling him from a term of years, no verdict between these parties for the supposed trespass could be pleaded in bar to another action of trespass by Thomas Troublesome on Timothy Peaceable.

It was in this way that the doctrine crept in that a verdict and judgment were conclusive only as regards personalty.

Afterwards, when this fictitious scaffolding was demolished in many States, and the parties made their issue in their own names-where there could be no difficulty as to the estoppel-the idea of a difference between rights to real property and personalty still continued in many States to linger, and a single verdict and judgment in ejectment was not considered conclusive. In such States provision was usually made by statute for a second trial.

But where no such provision has been made, the party's privilege to plead his estoppel, according to his right at common law, has always been recognized by the court. #fn-s-s

We find nothing in the statutes of Arkansas, or in their judicial decisions, making any exceptions or difference as to the conclusiveness of a verdict and judgment in real or personal action.

This question must, therefore, be answered.

IN THE AFFIRMATIVE.

title: Sturdy v. Jackaway/Opinion of the Court


text: Talk:Sturdy v. Jackaway/Opinion of the Court


text:
Railroad Company v. Rock

THIS was a motion by Mr. Templin to dismiss a writ of error to the Supreme Court of Iowa, issued under the twenty-fifth section of the Judiciary Act, which gives authority to the Supreme Court of the United States to review final judgments in the highest court of a State 'where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution of the United States, and the decision is in favor of such validity; or where is drawn in question the construction of any clause of the Constitution, &c., of the United States, and the decision is against the title, right, &c., specially set up or claimed under such clause.'

The case was thus:

Rock, on behalf of himself and the other resident taxpayers of Iowa County, filed his bill in the proper State court against the Missouri and Mississippi Railroad Company, plaintiff in error, and Wallace, county judge of the said county. He prayed that certain bonds, purporting to be the bonds of the County of Iowa, which he alleged to be then in the possession of the plaintiff in error, should be declared void, and that plaintiff should be enjoined from negotiating them; and that the county judge should be enjoined from levying or collecting any tax to pay said bonds or the interest on them.

The bill of complainant asked for relief on two grounds:

1. That the county judge disregarded the requirements of a certain statute set forth in the bill, in the submission to the vote of the people of the question of issuing the bonds.

2. That the county judge and the Railroad Company, to whom they were first issued, were guilty of fraud in the issue of the bonds.

The court decreed as prayed by Rock, and the Railroad Company appealed to the Supreme Court of Iowa, which affirmed that decree.

More than two years after this affirmance, the chief justice of that court certified that, upon the hearing in that case, there was drawn in question:

1. The validity of the Constitution of the State of Iowa as being repugnant to the Constitution of the United States.

2. That clause of the Constitution of the United States which provides that no State shall pass any law impairing the obligation of contracts.

3. That clause of the Constitution of the United States which provides that said Constitution shall be the supreme law of the land.

And it was further certified, that the decision was against the right claimed under the Constitution of the United States and the several clauses thereof.

The ground of the motion made to dismiss was, that it nowhere appeared by the record that the question of the repugnancy of the laws and Constitution of Iowa to the Constitution and laws of the United States was passed upon; and that the certificate of the judge would not of itself conclude the court on that matter.

Messrs. Grant and Cook against the motion:

In Armstrong v. The Treasurer of Athens Co., the chief justice of the State court attached to the record his certificate that the decision drew into question the validity of that clause in the Constitution of the United States, which provides that no State can pass a law impairing the obligation of contracts, and that the decision was against the clause. The certificate in the case at bar is drawn up and signed as was that in the authority cited; and this will be seen by reference to that authority.

In that case the court says:

'We presume the certificate of the presiding judge was made by authority of the court, and as the bill and answer show that such a point might have arisen, and this certificate on the record states that it did arise and was decided, the case comes within the fourth clause, and this court must take jurisdiction.'

But independently of the certificate we have an authoritative report of the case now brought here from the Supreme Court of Iowa, in the printed reports of that court's decisions. Volume 14th of the series gives us the very case now here on error. It removes all difficulty. The court say that the bill was filed to cancel certain bonds for the want of power in the county judge to issue the same, and because of certain alleged irregularities attending their issue, and they add: 'Following Stokes v. Scott Co., and B. & M. R. R. Co. v. Wapello, we affirm the judgment below.'

Now in both the cases cited and followed, the Supreme Court of Iowa held the bonds unconstitutional while yet unissued, and in the present case it applied this principle of unconstitutionality to bonds issued and in the hands of bona fide holders.

The case then fairly presented the constitutional question, and the point which was decided by the Supreme Court of Iowa was, that these bonds (issued and delivered in November, 1858, to bona fide holders, and at a time when, as is well known, the Supreme Court of the State held them to be constitutional and valid), were unconstitutional and invalid, null and void. The Supreme Court of Iowa, then, have made a decision in this case which impairs the obligation of contracts. The judicial interpretation of a law is part of the law as much as if written in it.

Mr. Justice MILLER delivered the opinion of the court.

title: Railroad Company v. Rock


text: Talk:Railroad Company v. Rock

title: Talk:Railroad Company v. Rock


text:
Railroad Company v. Rock/Opinion of the Court

After a very careful examination of the record of the case, we are unable to discover that either the validity of the Constitution of the State of Iowa, or the clauses of the Constitution of the United States mentioned in the certificate, are involved in that record, or were decided by the court. It is probable that counsel, in the argument of the case in the Supreme Court of Iowa, insisted that these matters were involved, and that the chief justice felt bound to certify, when requested, that they were drawn in question. But if the record does not show that they were necessarily drawn in question, this court cannot take jurisdiction to reverse the decision of the highest court of a State, upon the ground that counsel brought them in question in argument.

In Lawter v. Walker, a case was brought here on a certificate from the State court. It was dismissed for want of jurisdiction. The court said: 'The twenty-fifth section of the Judiciary Act requires something more definite than such a certificate to give to this court jurisdiction. The conflict of the State law with the Constitution of the United States, and a decision by a State court in favor of its validity, must appear on the face of the record before it can be re-examined in this court. It must appear in the pleadings of the suit, or from the evidence in the course of the trial, in the instructions asked for, or from exceptions taken to the ruling of the court. It must be that such a question was necessarily involved in the decision, and that the State court would not have given judgment without deciding it.' To the same effect is the case of Mills v. Brown.

The bill of complainant claims relief on two grounds:

1. That the county judge disregarded the requirements of the statute, in the submission to the vote of the people of the question of issuing the bonds.

2. That the county judge and the Railroad Company, to whom they were first issued, were guilty of fraud in the issue of the bonds.

The court may have held the bonds void on the latter ground, and may have based its decree on that allegation. If so, there can be no pretence that such a ground involves any question of the Constitution of the United States or of the State of Iowa.

In the argument of counsel before us, no attempt is made to show that any provision of the Constitution of the State of Iowa conflicts in any way with the Constitution of the United States. The whole case, in the language of the brief, is put upon the ground that the 'Supreme Court of Iowa has made a decision in this case which impairs the obligation of contracts;' and the argument goes upon the fundamental error that this court can, as an appellate tribunal, reverse the decision of a State court, because that court may hold a contract to be void which this court might hold to be valid. If this were the law, every case of a contract held by the State court not to be binding, for any cause whatever, can be brought to this court for review, and we should thus become the court of final resort in all cases of contract, where the decisions of State courts were against the validity of the contracts set up in those courts.

This, obviously, was not the purpose of the Judiciary Act. It must be the Constitution, or some law of the State, which impairs the obligation of the contract, or which is otherwise in conflict with the Constitution of the United States; and the decision of the State court must sustain the law or Constitution of the State in the matter in which the conflict is supposed to exist, or the case for this court does not arise. No such thing appears in the case before us, which is the case of a citizen of Iowa, suing a corporation of Iowa, in the Iowa courts, their rights being determined either upon a construction of local law in no way in conflict with the Federal Constitution, or else upon a simple question of fraud.

DISMISSED.


text: Talk:Railroad Company v. Rock/Opinion of the Court


text:
United States v. Dashiel (71 U.S. 182)

ERROR to the District Court of the United States for the Western District of Texas.

The suit was brought on the official bond of Dashiel, a paymaster in the army of the United States, and Paschall, one of his sureties, for breach of the condition in not paying over or accounting for public money that come into his hands.

The only defence set up was by way of plea or answer, and in substance is, that Dashiel received of the government $28,000 in gold, at Charleston, S.C.., 15th June, 1857, for the purpose of paying off the troops at Forts Dallas and Capron, in Florida, and being compelled to stop at Pilatka several days, some $13,000 of the money were stolen from him-$3320 of which were afterwards recovered-and insists that he is not liable for the remaining $9675 so lost.

On the trial, the government gave in evidence properly authenticated transcripts, from the books and proceedings at the Treasury, of the account of Dashiel, showing a balance against him on the 15th of September, 1858, of $20,085.74 and costs.

The defendant then offered evidence tending to prove the loss of the money set up in the answer or notice, which was objected, to on the part of the government, but admitted by the court, and which is set out in the record.

The court, among other things, instructed the jury that the theft or robbery, if satisfactorily proved, was a good defence, if it did not occur from any want of proper care and vigilance on the part of the officer; under which instruction the jury found a verdict for the government for the balance due, after deducting the $9675.

A motion for a new trial on the part of the plaintiff having failed, the case was now here; the instruction above given being the matter complained of.

Mr. Stanbery, A. G., and Mr. Ashton, Assistant A. G., for the United States, plaintiff in error:

It is an adjudicated principle that the felonious stealing, taking, and carrying away the public moneys in the custody of a receiver and disburser of public moneys without any fault or negligence on his part, does not discharge him or his sureties from the obligation of his official bond, and constitutes no defence to an action by the United States on that bond.

United States v. Prescott et al. is in point. The defendant was receiver of public moneys at Chicago, and gave bond for the faithful discharge of the duties of his office, which required him to keep safely all the public moneys in his custody, and to pay over the same when required so to do. In the action brought against him and his sureties for the recovery of moneys intrusted to his care, the defendant pleaded that a portion of the same had been stolen from the office without any fault or negligence on his part. On a demurrer by the United States, the question arose, and was certified to this court for its opinion, whether that fact constituted a defence to an action on his official bond for the recovery of the stolen money. The court says: 'The liability of the defendant, Prescott, arises out of his official bond and principles which are founded upon public policy. The condition of the bond has been broken, as the defendant, Prescott, failed to pay over the money received by him when required; and the question is, whether he shall be exonerated from the condition of his bond on the ground that the money had been stolen from him? The objection to this defence is, that it is not within the condition of the bond; and this would seem to be conclusive. Public policy requires that every depositary of the public money should be held to strict accountability. Not only that he should exercise the highest degree of vigilance, but that he 'should keep safely' the moneys which come to his hands. Any relaxation of this condition would open the door to frauds, which might be practised with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs so as to establish loss, without laches on his part. As every depositary receives the office with a full knowledge of its responsibilities, he cannot, in case of loss, complain of hardship. He must stand by his bond, and meet the hazards which he voluntarily incurs.'

In the subsequent case of United States v. Morgan et al., this court applied those principles with the same rigor in an action by the United States against a collector of customs.

A demurrer was made in United States v. Prescott to a plea such as is here set up, and undoubtedly a demurrer would have lain here.

The ruling and charge of the court below were in direct violation of both the adjudications cited.

Mr. G. W. Paschall, contra:

1. It is insisted by the Attorney-General, that a demurrer lay to this plea, as in the case of United States v. Prescott. But in the case at bar no demurrer was interposed; no exception was taken to the plea, and thereby the plaintiff virtually admitted that if the facts should be proven they would constitute a good defence. The objection to the evidence came too late. It was good enough for the plea, and, as no demurrer was taken to the plea, it was good enough to admit the evidence.

2. No exceptions were taken to the evidence when offered, or to the charge of the court when given.

3. Even if the bill of exceptions had been taken, or the point reserved, by moving for a new trial the plaintiff waived the objections to the evidence and to the charge; and as this court will not consider the merits of the motion, there is really nothing before the court. The general common-law principle is, that a motion for a new trial does waive the bill of exceptions.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Dashiel (71 U.S. 182)


text: Talk:United States v. Dashiel (71 U.S. 182)


text:
United States v. Dashiel (71 U.S. 182)/Opinion of the Court

The question involved in this case has been already twice decided by this court, and need not again be examined. The decisions will be found in 3 Howard, 578 (United States v. Prescott and others) and 11 Ib. 160 (Same v. Morgan and others).

It is insisted on the part of the defendants that as the plea was not demurred to, but went to issue, the evidence of the robbery supported it, and that the court was therefore right in admitting it and in giving the instructions to the jury. We are not advised as respects the system of pleading that may have been adopted in the court below, but whatever it may be it can hardly justify or require the court to give an instruction to the jury contrary to law, and especially when the plea itself, as it is called, constituted no defence to the action, but was frivolous and would have been stricken from the record as such on a proper motion in the court below. This plea in answer is but a notice of special matter by way of set-off, or abatement of the amount claimed against the defendants. It went only to part of the cause of action. To have constituted it a plea in bar of the action the amount beyond the sum lost should have been tendered and brought into court, setting up the theft as to the balance.

It is urged that no exception was taken to the ruling of the court at the trial; but this is a mistake. It was taken in express terms to the particular instruction in question.

It is also insisted that the motion for a new trial in the court below was a waiver of the exception. The practice is every day otherwise.

JUDGMENT REVERSED AND VENIRE DE NOVO.


text: Talk:United States v. Dashiel (71 U.S. 182)/Opinion of the Court


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United States v. Allsbury

ERROR to the District Court of the United States for the Western District of Texas.

Allsbury had become bound as surety in the official bond of Dashiel, paymaster. Suit having been brought on this bond against Dashiel, and Paschall, one of the sureties, to recover what the United States alleged was due, to wit, $20,085, a defence was set up to part of the claim; and the defence being sustained by the court below, the United States had verdict and judgment for but $10,318.22. Error was taken to that judgment, and the judgment reversed. The case next preceding gives report of the matter.

The present suit was brought on the same official bond of Dashiel, against the personal representatives of Allsbury, another of the sureties. The case came on for trial after the trial, verdict, and judgment, just mentioned, against the principal, and Paschall, the other surety, for $10,318.22.

The judgment was pleaded puis darrein continuance, in this suit, for the purpose of reducing the recovery to that amount.

It was admitted by the court, and instructions given accordingly, and the jury found a verdict for the above sum.

The correctness of what was thus done was the question now here.

Mr. Stanbery, A. G., submitted the case in behalf of the United States. Mr. Paschall, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Allsbury


text: Talk:United States v. Allsbury

title: Talk:United States v. Allsbury


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

It is unnecessary to refer to authorities to show that the liability of the surety cannot exceed that of his principal; and that amount having been fixed by a judgment at law, it formed the rule to determine the sum to be recovered in this suit. The verdict and judgment were competent evidence on behalf of the surety for this purpose; indeed, the highest evidence of the fact. Other questions would have arisen if this judgment had been offered against the surety. The counsel for the government, if desirous of recovering a greater amount, should have postponed the trial of this case till the error had been corrected which was committed in the case against the principal. Then he would have been in a situation to avoid the effect of the erroneous judgment. This is the only question presented on the record.

JUDGMENT AFFIRMED.


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


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Leftwitch v. Lecanu

A STATUTE of Louisiana enacts 'that notaries shall keep a book, in which they shall transcribe all the protests by them made, with mention made of the notices which they shall have given to drawers and indorsers, &c.; which declaration, duly recorded under the signature of the notary public and two witnesses, shall be received as a legal proof of the notices.'

With this statute in force, Lecanu sued Leftwitch and others in the Circuit Court of the United States for the Eastern District of Louisiana, as indorsers of a promissory note. The suit was in the form usual in Louisiana, that is to say, by petition, and the plea was a general denial.

On the trial before a jury, the counsel for the plaintiff below offered in evidence an instrument in writing on the back of the protest, and purporting to be a certificate of the notary, that he had notified the indorsers of the note, which is contained in the record.

The certificate, although it stated in the body of it that it was signed by two persons, Janin and Lenes, the 'two witnesses,' had not their signatures to it.

The counsel for the defendants objected to reading the instrument, on the ground that the certificate was not in conformity with the laws of Louisiana, and, consequently, that it did not prove the notice. The court overruled the objection, and the plaintiff excepted.

The bill of exceptions stated that 'plaintiff offered in evidence an instrument in writing on the back of the protest, purporting to be a certificate of the notary, that he had notified the indorsee to this note, which is hereunto annexed for reference as a part of this bill, to which certificate counsel for defendant objected,' &c. No such paper was, however, found attached to the bill of exceptions, nor in any manner referred to, or marked, or identified as being a part of it, or as the paper which was offered in evidence.

''Mr. Gillet, for the plaintiff in error. Mr. Carlisle, contra''.

Mr. Justice MILLER delivered the opinion of the court.

title: Leftwitch v. Lecanu


text: Talk:Leftwitch v. Lecanu

title: Talk:Leftwitch v. Lecanu


text:
Leftwitch v. Lecanu/Opinion of the Court

The only allegation of error in this record relates to a certificate of a notary public, that he had notified the indorsers of a promissory note of the dishonor of said note.

The bill of exceptions states that 'plaintiff offered in evidence an instrument in writing on the back of the protest, purporting to be a certificate of the notary, that he had notified the indorser of the note, which is hereunto annexed for reference as a part of this bill, to which certificate counsel for defendant objected,' &c. No such paper is found annexed to the bill of exceptions, nor in any manner referred to, or marked, or identified as being a part of the bill of exceptions, or as the paper which was offered in evidence.

The suit being in the Circuit Court for the District of Louisiana was commenced by petition, and according to the practice in such cases, there is annexed to the petition a copy of the note sued on, and of the protest and certificate of notice to the indorsers. But this is merely a copy attached to, and a part of the pleading, and is certainly not the paper which was offered in evidence. It may or may not be a perfect copy of that paper; but whether it is so or not, it is certain that it does not become a part of the bill of exceptions by being attached to the pleading.

If a paper which is to constitute a part of a bill of exceptions, is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.

There is nothing of the kind here; and as we must presume the ruling of the court to be right, in the absence of anything showing it to be wrong, the judgment must be.

AFFIRMED.


text: Talk:Leftwitch v. Lecanu/Opinion of the Court


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Mayor v. Sheffield

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

The action below was brought by W. P. Sheffield, against the Mayor, &c., of New York, to recover damages for injuries received by him from stumbling over a stump at the edge of the sidewalk around the lower end of the City Hall Park, in the city of New York.

Upon the trial it appeared that on the 16th December, 1857, Sheffield, while crossing, in the evening, the lower end of the City Hall Park, fell over a stump above the level of the sidewalk and broke his thigh-bone; that the stump was about fourteen inches distant from the curb of the sidewalk, and was about six inches high and four inches in diameter at the top.

It also appeared that the place where the stump stood, was, prior to the 18th November, 1847, and had been for more than thirty years, within and a portion of the City Hall Park; but that on the day just named, the Common Council of New York adopted an ordinance authorizing the Committee on Lands and Places, together with the street commissioner, to adjust the lower corner line of the Park, so as to make a curve, &c., and that under this ordinance-to the reading of which the counsel of the city, for reasons which will appear in the argument, excepted-the committee and street commissioner shortened the Park twenty feet, cut down a tree there, and threw those twenty feet-within which the stump of the tree-the stump which had caused the accident, stood-into the public street.

The court charged thus:

'The corporate authority of New York, by virtue of their charter and of the laws, have the charge and control of the streets and sidewalks within the corporate limits, and they are bound to keep them in good and safe condition. If they leave an opening in the sidewalk, as is sometimes done, and a person coming along in the night falls into it, without any want of proper care on his part, the defendants are liable for any injury that may be occasioned. So if an obstruction on the face of the sidewalk, over which a person stumbles-boxes, if you please-left out on the sidewalk on a dark night, or barrels, over which a person stumbles and falls, in the absence of want of care on his part, the defendants are equally liable for the injury. The opening in the one case and the obstruction in the other constitute the negligence, are evidence of negligence on the part of the authorities who have the control of the matter, and in order to escape from the charge of liability, the burden is thrown upon them to disprove negligence.

'If the plaintiff in this class of cases has been himself guilty of negligence, and which materially contributed to the injury, then he cannot recover, even if the defendants have been shown to be guilty of negligence. The plaintiff must be free from fault.'

Verdict and judgment having gone for the plaintiff, the case was now here on exceptions to the evidence as above mentioned, and charge.

Mr. O'Gorman for the City, plaintiff in error:

1. The stump over which the defendant in error fell was not in a public street. The judgment of the court below, therefore, cannot be sustained.

(a.) The position taken by the plaintiff is that owing to the neglect of the plaintiff in error to remove an obstruction from a public street, the injuries complained of were received and the damages recovered sustained. Now prior to 1847, the place where the accident occurred and the stump stood, was a part of the City Hall Park, and the only evidence that such place ever became a part of a public street is the resolution of the Common Council authorizing the street commissioner to curve the lower end of the Park, and the action of that officer under that resolution in cutting off twenty feet therefrom.

Did this resolution, the action of the street commissioner under it, and the subsequent use by the public of the space cut off from the Park, constitute that space a part of a public street? The resolution cannot have that effect, for the reason that the Common Council had no power to pass it. Prior to 1847, the space where the accident occurred had been a part of and in use as a public park for more than thirty years; and within the principles established by the authorities cited in the note, it was incompetent for the Common Council to diminish the Park by throwing a part of it into the street. The ordinance being void, the act of the street commissioner was without authority.

(b.) The space in question as a part of the public park was a portion of the real estate owned by the corporation of the city of New York.

In 1844 this real estate was, by an ordinance duly enacted, pledged to the redemption of the city debt. This pledge was in 1845 confirmed and made absolute by an act of the State Legislature. The effect of this ordinance and act was to deprive the Common Council of any power to sell or dispose of any of the real estate of the corporation. The same principle which would justify the conversion of a portion of the park into a street would support any other disposition of the public property which the Common Council might choose to make. It is manifest, therefore, that neither the resolution of the Common Council nor the act of the street commissioner could constitute the space in question a part of a public street, for the reason that the resolution was void and the act of the officer unauthorized.

(c.) In the city of New York the laying out, opening, altering, and widening of public streets is regulated by statute.

A statute of the State provides that whenever any street is to be laid out, opened, altered, enlarged, or improved, the mayor, aldermen, and commonalty must apply to the Supreme Court for the appointment of commissioners. It is made the duty of the commissioners to view the lands and tenements required for the improvement, and to make a just and equitable assessment of the loss and damage over the benefit and advantage. The statute further provides that if any lands, tenements, or premises belonging to the mayor, aldermen, and commonalty of the city of New York shall be required for the improvement, they shall be compensated for the loss and damage they sustain in like manner as other owners and proprietors of premises. The statute then enacts, that upon the confirmation by the Supreme Court of the report which the commissioners are required to make, the lands taken shall be appropriated and kept open for a public street forever. Until, therefore, this space in question is shown to have been taken in conformity with requirements of statute, it cannot be regarded as a public street. The space in question having never been accepted as a part of a public street in the manner provided by law, the corporation were not bound to remove the stump, nor are they liable for the injuries received by the defendant in error.

2. The charge asserts, that the existence of an obstruction in a street is evidence of negligence and constitutes negligence, and throws upon the defendants the burden of disproving the negligence. Under this charge, no question was left to the jury; for if the existence of the obstruction constitutes the negligence, it is clearly impossible to disprove the negligence without disproving the existence of the obstruction, and the charge was equivalent to saying that in every case in which an obstruction exists in a street, the defendants would be liable.

In addition, it wholly disregards the necessity of notice to the city authorities of the existence of the obstruction.

Mr. W. P. Sheffield, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Mayor v. Sheffield


text: Talk:Mayor v. Sheffield

title: Talk:Mayor v. Sheffield