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The Teresita/Opinion of the Court

The bark Teresita was captured near the mouth of the Rio Grande, on the 16th of November, 1863, by the United States steamer Granite City. The cargo consisted of one hundred and fifty-eight bales of cotton.

She was brought into New Orleans for adjudication; and, upon hearing, the District Court directed restitution of the vessel and cargo.

There was no question of the neutrality of the ship or her cargo; but it was claimed for the captors that she was in Texan waters when captured, and therefore subject to just suspicion of intent to break the blockade.

The captain and the mate of the ship, in their preparatory depositions, testified that she was in Mexican waters; but the captain being on shore at the time, could not be certainly informed as to this. A stevedore, who had been employed on board the vessel and had not been discharged, testified that she had drifted to the place where she was taken, under stress of weather. He did not know whether she was then in Texan or American waters. Her full cargo had been taken in at her former anchorage.

The preliminary hearing took place on this evidence, which, doubtless, warranted restitution.

Further proof, however, was allowed. It consisted of depositions by the captain and some other officers of the Granite City to the effect that the Teresita when captured was a quarter or half a mile north of the line, according to the bearings by the compass, and that the mate admitted that she was in Texan waters. But the same deposition showed that the mate declared that his vessel had drifted to the spot, his anchor and chain being too light; and assigned, as one reason for not returning to the former anchorage as soon as the wind became fair, that the captain was at Matamoras with the ship's papers, and he did not like to move the vessel without orders; and, as another, that the ship was fully laden and ready to sail, and had been seen by two American men-of-war, which did not disturb her, and he thought, therefore, that she might safely remain where she was till the captain returned. It appeared, also, that the mate proposed if not captured, to return at once to the anchorage from which he had drifted.

We are of opinion that, under such circumstances, temporary anchorage in waters occupied by the blockading vessels, does not justify capture, in the absence of other grounds. The case for the captors was not improved by the further proof. The decree of restitution must be affirmed, and we shall direct the costs and expenses to be paid by the captors.

DECREE AND DIRECTION ACCORDINGLY.

title: The Teresita/Opinion of the Court


text: Talk:The Teresita/Opinion of the Court

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

title: Talk:The Teresita/Opinion of the Court


text:
The Jenny

APPEALS from the District Court of the United States for the Eastern District of Louisiana, decreeing restitution of the schooner Jenny and cargo, and decreeing costs and charges against their claimants; the questions involved being of fact chiefly.

Mr. Ashton, Assistant Attorney-General, for the United States; Mr. Marvin, contra.

The CHIEF JUSTICE delivered the opinion of the court; in which the case is stated.

title: The Jenny


text: Talk:The Jenny

title: Talk:The Jenny


text:
The Jenny/Opinion of the Court

The schooner Jenny, with a cargo of one hundred and fifty-four bales of cotton, was captured by the United States war steamer Virginia, in Texan waters, north of the Rio Grande, on the 6th of October, 1863, and was brought into New Orleans.

She was libelled as prize of war in the District Court for the Eastern District of Louisiana on the 16th of October.

On the 7th of November John Johnson, the master of the schooner, put in four separate claims: one in behalf of Hale & Co., for the schooner; one in behalf of H. Fernstein, for forty-four bales of cotton; one in behalf of Ruprecht & Fortner, for thirty-nine bales, and one in behalf of J. Rosenfeld, for seventy-one bales. On the 10th of December two other claims were filed: one by Charles Andre, in behalf of Augustine Stark, for the thirty-nine bales, and the other by Conrad Seiler, in behalf of R. M. Elkes, for the forty-four bales. No personal claim or test-affidavit was made by any of the parties alleged to have title in the vessel or cargo; and no evidence was put in of any authority in Andre or Seiler to represent Stark or Elkes. The authority of Johnson was derived from his character as master.

The seizure was made because she sailed from the blockaded coast of Texas, and because of the unsatisfactory nature of her papers.

Her manifest was dated September 17, 1863, at which time her log-book showed that she had only part of her cargo on board; it appeared also from her manifest, her bill of health from the American consul, and her Mexican clearance, that she was bound for New York, whereas the captain's letter of instruction required her to stop at Nassau and conform to the instructions of Saunders & Co., of that place; both her bills of health specified six men, and no passengers, whereas, in fact, a passenger by the name of Mund was found on board; the provisional certificate of registry represented Hale & Co., of Matamoras, as sole owners of the vessel, whereas, the captain's instructions and other papers showed that C. F. Jenny was the owner.

These facts, doubtless, justified suspicion and warranted seizure. We must then inquire into the true character and ownership of the vessel and cargo, as shown by the preparatory evidence.

It appears that the vessel was American built, and that her original name was Southron; and a paper found on board showed that Johnson, her master, had commanded in December, 1862, a schooner engaged in running the blockade from Mobile to Havana.

The Southron was sold under order of the United States sequestration commission in New Orleans to one P. A. Fronty, and a register was issued to him on the 18th of March, 1863.

She was probably soon after sold by Fronty, though he still remained master, to one Julius Schlickum; for this person, on the 21st of April, made a bill of sale of her at Matamoras, to Hale & Co., of that place.

Hale & Co. do not seem to have taken possession of her; for, on the same day, an irrevocable power of attorney was made by that firm to one Jacob Rosenfeld, of Houston, in Texas, giving him or his substitute absolute control over the management and disposition of the schooner by sale or otherwise.

This paper was not signed by Hale & Co., but was drawn in their name, and signed by one John P. Molony, who, in a declaration of membership in the firm, dated six days later, represented himself as a partner.

These documents were not framed and executed in this irregular way by accident. In a letter to Johnson & Co., at Nassau, Jenny called Hale & Co. 'the pretended owners,' and complained that Molony refused to make out the papers, as he, Jenny, wished, simply remarking to him, 'You have full and irrevocable power of attorney to do or not to do with the schooner whatever you please. I shall never interfere with you or your acts.'

On the same day that the declaration of ownership was made, a British provisional certificate of registry representing Fronty as master, and Hale & Co. as owners, was issued by the British vice-consul.

On the 12th of September, 1863, Rosenfeld transferred to Charles F. Jenny, of Matamoras, as his substitute, all the powers vested in him by the irrevocable power of attorney. And on the 17th of the same month, Jenny made a like transfer to Saunders & Co., of Nassau, as his substitute.

Jenny appears to have exercised control over the vessel much earlier; for he appointed Johnson in place of Fronty, on the 27th of May; after which the schooner made a voyage to Havana and back, with Rosenfeld as supercargo.

In all transactions connected with the last voyage, Jenny acted as apparent owner; while Rosenfeld appeared only as a shipper of cotton. In the letter to Saunders & Co., already quoted, Jenny authorized the sale of the schooner at Nassau, and directed the remittance of the proceeds to his firm in Switzerland. In case sale could not be effected at Nassau, he directed that the power and the papers of the ship should be transferred to Schlesinger & Co., of New York, the consignees there of the vessel and cargo, to whom he also wrote instructing them to sell the schooner, or, if not, to obtain a return cargo for her. In this letter he spoke of the vessel as 'my schooner Jenny.'

This testimony leaves the ownership of the schooner in some doubt. The sale to Hale & Co. was most probably a mere cover. It is clear that, except in obtaining the British provisional registry, they never acted or held themselves out as owners; nor did they appear personally in this court to make claim for the vessel, or otherwise than through Johnson, who acted without instructions from them, and merely in his capacity as master. And he, in his preparatory deposition, said only, that the Jenny belonged to them, as far as he knew, but he did not know exactly.

Their irrevocable power of attorney to Rosenfeld, vested in him all the powers of owner, and made him owner in effect. After the transfer of the power, Rosenfeld was constantly connected with the schooner as supercargo and shipper of cotton. On the other hand, the conduct of Jenny and his apparently absolute control, indicates ownership of her. He may have acted, and probably did act under some arrangement with Rosenfeld, or they may have been connected in ownership. The former supposition is strengthened by the circumstance that Jenny disappeared from all apparent connection with her, immediately after capture; while Hale & Co., the grantors of the Jenny to Rosenfeld, were brought forward as ostensible owners.

Thus far as to the vessel. We have already referred to the claims for the cargo.

One of the claims was in behalf of Rosenfeld, who was presented in a new character. In the power of attorney executed at Matamoras, he was described as a resident of Texas. In the claim made in New Orleans, he was represented as a resident of that city, absent in Matamoras. The claim in his behalf was for the seventy-one bales. It is remarkable, if he was in fact a resident of New Orleans, that he has never claimed otherwise than through Johnson, and never made any test affidavit at all. The truth, we apprehend is, that he was what the power of attorney declared him to be,-a resident of Texas,-and therefore, at that time, a rebel enemy of the United States.

The remainder of the cargo seems to have been shipped in good faith at Matamoras.

We are next to inquire what was the course, position, and conduct of the vessel at the time of capture, as shown by the preparatory evidence and the further proof.

She had recently come down the Rio Grande from Matamoras. She was observed two days before the capture anchored in Texan waters, near the coast of Texas. She was probably there when she took on board the seventy-one bales belonging to Rosenfeld, which she received from lighters. When she left her anchorage, the Virginia sent a boat to intercept her, and she was brought to by a shot or two from this boat. The mate of the Jenny says she was at this time about a mile from the shore. The officers of the Virginia make her distance from shore three miles or more, and her place from three to five miles south of the Rio Grande.

What are the conclusions of law from these facts? In strictness the Jenny, having taken on part of her cargo off the blockaded coast and having sailed from that coast, was attempting to run the blockade when captured.

But we are not inclined to condemn the vessel on this ground, much less the forty-four bales and the thirty-nine bales, which were taken on board at Matamoras.

But it is an undoubted principle that in a case of libel as prize of war, the burden of proving the neutral ownership of the ship and cargo is upon the claimants. In this case satisfactory proof is made of neutral ownership in the cotton laden at Matamoras. But there is no proof at all of such ownership in the seventy-one bales put on board from lighters; and no satisfactory proof of such ownership in the schooner. On the contrary, the weight of the evidence is that these bales were owned by a rebel enemy; and that the same rebel enemy, either alone or in association with Jenny, who makes no claim, owned the schooner.

It results that the forty-four bales and the thirty-nine bales must be restored to the claimants represented by the master, without contribution to costs or expenses, and that the seventy-one bales and the schooner must be condemned.

The decree below must be reversed and a decree entered

IN CONFORMITY WITH THIS OPINION.

title: The Jenny/Opinion of the Court


text: Talk:The Jenny/Opinion of the Court

title: Talk:The Jenny/Opinion of the Court


text:
Ex parte the Milwaukee Railroad Company

PETITION for a writ of mandamus.

The Circuit Court for the District of Wisconsin having rendered a decree in favor of J. T. Soutter, survivor, &c., against the La Crosse and Milwaukee Railroad Company and the Milwaukee and Minnesota Railroad Company, on the 5th March, 1867, for $40,000, and ordered a sale of the road mortgaged to secure the debt, the last-mentioned company prayed an appeal to this court, which was allowed. For the purpose of staying proceedings on the decree, they offered a bond, in the penalty of $50,000, within the ten days allowed for that purpose, which the district judge declined to approve, but upon which he made the following indorsement:

'March 16, 1867.

'The counsel of complainant having objected to the allowance of this bond for supersedeas, on the ground that all the sureties are non-residents of the district, for this reason this bond is not approved for a supersedeas.

'A. G. MILLER, District Judge.'

The record of the case having been brought into this court on the appeal taken, the appellants now petitioned the court for a mandamus to compel the district judge to approve the bond and allow a supersedeas, or for such other relief in the premises as this court could give.

Messrs. Cram and Cushing, in favor of petition; Mr. Cary, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Ex parte the Milwaukee Railroad Company


text: Talk:Ex parte the Milwaukee Railroad Company


text:
Ex parte the Milwaukee Railroad Company/Opinion of the Court

Although this court does not concur in the opinion of the district judge, that the fact of the non-residence of the sureties within the district is a sufficient reason for rejecting a bond which is in all other respects unobjectionable, we are not inclined to interfere by mandamus with the discretion of that judge in approving or rejecting a bond offered for his approval. If we had the right to do this, which is extremely doubtful, it is unnecessary, as the remedy which is in our own hands is ample. The case being properly in this court by appeal, we have, by the fourteenth section of the Judiciary Act, a right to issue any writ which may be necessary to render our appellate jurisdiction effectual. For this purpose the writ of supersedeas is eminently proper in a case where the circumstances justify it, as we think they do in the present instance. Hardeman v. Anderson, is an example of the exercise of this power precisely in point.

We shall therefore make an order, that upon the filing of a bond for the sum of $50,000, with the usual conditions, at any time within thirty days from this date, which shall be approved by the clerk of this court, a supersedeas will issue from this court to the judge of the Circuit Court of the United States for the District of Wisconsin, and to the marshal of the United States for said district, commanding a stay of proceedings on said decree until the further order of this court,

THE SAME BEING SUPERSEDED.


text: Talk:Ex parte the Milwaukee Railroad Company/Opinion of the Court


text:
Barton v. Forsyth (72 U.S. 190)

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

Mr. Ballance, for the plaintiff in error; Mr. Gondy, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Barton v. Forsyth (72 U.S. 190)


text: Talk:Barton v. Forsyth (72 U.S. 190)

title: Talk:Barton v. Forsyth (72 U.S. 190)


text:
Barton v. Forsyth (72 U.S. 190)/Opinion of the Court

Action was ejectment for a certain parcel of land stiuated in the county of Peoria, State of Illinois, and particularly described in the declaration. Parties waived a jury and went to trial upon the general issue before the court, and the judgment was for the defendant; but a new trial was granted, on motion of the plaintiff, and at the second trial, which was to the jury, the verdict and judgment were for the plaintiff.

All the taxed costs having been paid by the defendant, he moved the court that the judgment be vacated, and that a new trial be granted, and the motion was allowed. Third trial was also to the jury, and the verdict and judgment, as before, were for the plaintiff. Defendant excepted and sued out a writ of error and removed the cause into this court.

Mandate of this court, which is in the record, shows that the judgment of the Circuit Court was affirmed here at the December Term, 1857, and the cause remanded for execution and such proceedings as right and justice and the laws of the United States required. Judgment of affirmance was accordingly rendered on the seventh day of July, 1858, and an order entered that the plaintiff have execution against the defendant for his costs. Record also shows, that on the nineteenth day of July, in the same year, a writ of habere facias possessionem issued on the judgment in favor of the plaintiff, and the return of the marshal shows that he, on the third day of September following, put the plaintiff in possession of the premises, as commanded by the writ. Due execution, therefore, followed final judgment, and there was an end of all regular proceedings in the suit. Dissatisfied with the result, however, the defendant, on the thirteenth day of May, 1862, moved the court for a writ of restitution, and on the fifteenth day of May following the court awarded the writ, as prayed in the motion.

Writ of restitution in favor of the defendant bears date on the twenty-seventh day of May, 1863, and it appears to have been duly served by the marshal.

Turned out of possession of the premises which he had recovered by the judgment of the Circuit Court, duly affirmed in this court, the plaintiff in turn moved the court for a writ of restitution to restore him to the possession of the premises. Affidavits were filed and both parties were duly heard. Conclusion of the court was that the first writ of restitution had been improvidently issued, and that the possession of the premises belonged, under the judgment as affirmed by this court, to the plaintiff.

Foundation of the application for the first writ of restitution was a supposed tax title held by the defendant, not pleaded or in any manner brought to the notice of the Circuit Court in the trial of the cause; and the foundation for the second application was, that the hearing of the first was without any notice whatever to the party in possession.

Exceptions were taken by the defendant to the order of the court setting aside the first writ of restitution and awarding the second to the plaintiff. Based on those exceptions the defendant sued out this writ of error, in which it is alleged in substance and effect that a manifest error has happened in the rendition of a certain judgment on a certain motion, and the proceedings under it, made by the plaintiff to set aside a certain writ of restitution which had been issued out of said court in favor of the defendant, and to grant a writ of restitution to the plaintiff in a case between these parties.

Evidently the writ of error is addressed not to the judgment in the case, but to the order of the court in setting aside the first writ of restitution and in granting the second, as specified in the bill of exceptions.

Writs of error, under the Judiciary Act, could only issue from the clerk's office of this court, but it was provided by the ninth section of the act of the eighth of May, 1792, that the form of a writ of error approved by any two judges of the Supreme Court should be forthwith transmitted to the clerks of the Circuit Courts, and the provision was that they may issue writs of error agreeably to such form as nearly as the case may admit, under the seal of such courts, returnable to the Supreme Court.

Appellate jurisdiction of this court in writs of error, under the twenty-second section of the Judiciary Act, is confined to final judgments by the express words of the section, and of course the writ of error should be addressed to the final judgment. All the forms of a writ of error furnished to the clerks of the Circuit Courts are to that effect, and those clerks have no right to change the form without the sanction at least of two justices of this court. Present writ of error is not, on its face, addressed to the final judgment in the case, but to an order of the court made on a motion filed by the plaintiff long after the writ of possession had been issued and served. Such an order is not a final judgment in any sense within the meaning of the twenty-second section of the Judiciary Act.

First order of the court in awarding the writ of restitution was irregular, because it was inconsistent with the mandate of this court, which affirmed the judgment of the Circuit Court that the plaintiff was entitled to the possession of the premises. Opposite party was not notified of the application, which doubtless led to the error, as the hearing was ex parte. Service of the process gave the plaintiff notice of what had transpired, and he immediately applied to the court to set the proceedings aside.

Second application was clearly addressed to the discretion of the court, as it was in the nature of a petition to correct an order manifestly irregular, for the reason already suggested, and because it had been passed without notice to the party asking to set it aside.

Direct decision of this court in the case of Smith v. Trabue's Heirs, was that such an order was no more than the action of a court on its own process which is submitted to its own discretion, and that it was not a final judgment in a civil action nor a decree in a court of equity.

Where a case is brought into this court from the Circuit Courts by a writ of error, regular in form, if there is no error in the record the judgment will be affirmed. Affirmance in such a case is the proper judgment, because the writ of error, being addressed to the record, brings up the whole case, and the court, under the twenty-second section of the Judiciary Act, has jurisdiction to re-examine the record in such cases and to reverse or affirm; and if there is no error in the record, of course the judgment must be affirmed.

Present case, however, does not fall within that rule, because the writ of error is special in form and is addressed to a mere order of the court, passed nearly six years after the final judgment of the Circuit Court was affirmed, the writ of possession issued, and the possession of the premises given to the plaintiff, as commanded by the writ.

DISMISSED FOR THE WANT OF JURISDICTION.


text: Talk:Barton v. Forsyth (72 U.S. 190)/Opinion of the Court


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Campbell v. City of Kenosha

ERROR to the Circuit Court for the District of Wisconsin; the case being this:

The constitution of Wisconsin ordains:

'It shall be the duty of the legislature, and they are hereby empowered, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations.'

With this provision in force, the legislature of the State, on the 22d March, 1853, authorized the city of Kenosha 'to issue the corporate bonds of the said city to the Kenosha & Beloit Railroad Company for the payment of a sum not exceeding $150,000.' It was provided, however, that no bonds should be issued under this act unless a majority of the legal voters voted in favor of it.

By section 8 of an act passed the next day, 'An act to amend the charter of the city of Kenosha,'-approved March 23d, 1853, the legislature enacted as follows:

'The city council shall have power to levy and collect special taxes for any purpose (aside from what may be specially provided for in the city charter) which may be considered essential to promote or secure the common interest of the city; or may borrow on the corporate credit of the city for such purposes, any sum of money for any term of time, at any rate of interest not exceeding ten per centum, and payable at any place that may be deemed expedient.'

This act also provided that no tax should be levied or money borrowed, unless in accordance with a certain section-'section 44 of 'An act to incorporate the city of Kenosha," (the original city charter),-a section which, like one in the first-named act, provided for a submission of the matter to a vote of the people; when the amount and object of the proposed tax or loan to be voted upon should be specifically stated.

In this state of statutory enactments, the city, in August, 1855, passed an ordinance:

'That under and in accordance with section 8 of 'An act to amend the charter of the city of Kenosha,' approved March 23d, 1853, and section 44 of the 'Act to incorporate the city of Kenosha,' a question shall be submitted to the legal voters whether a tax to the amount of one hundred and fifty thousand dollars shall be levied and collected for the promotion of the common interest of the city in aid of the Kenosha and Beloit Railroad.'

The question of the tax and loan was thus submitted, the reader will observe, under the act of March 25d, amendatory of the charter, and not under that of March 22d, authorizing a subscription for a specific sum, $150,000.

A majority of the voters having voted for the subscription, under the ordinance just quoted, the city issued scrip, in the form of small drafts, by the mayor and clerk, on the city treasurer, for different sums of money payable 'out of any funds in the treasury belonging to the city, the same having been allowed for scrip in aid of the Kenosha and Beloit Railroad Company.'

In 1857, the next year after the city had thus subscribed for stock and issued its scrip, and so become a stockholder in the new railroad, the legislature passed an act giving a revised charter to the city, which it accepted. This new charter provided that a railroad commissioner should be annually elected thereafter as a city officer, and, prescribing his duties, proceeded:

'He shall have, generally, the charge and control of all interest the city of Kenosha now has, or may hereafter have, in the Kenosha and Beloit Railroad. He shall receive all funds paid into the hands of the city treasurer, on account of the tax for the benefit of the Kenosha and Beloit Railroad Company, and shall hereafter redeem all scrip which has been issued to said railroad company, as the same becomes due, making such provision therefor, or recommending such measures to the common council as he may deem necessary for the benefit of the tax-payers of the city.'

The scrip issued as above-mentioned was not paid at its maturity, and, in 1859, the city councils of Kenosha made arrangements by which the city obtained from the holders of it an enlargement of the time of payment. Being at the efflux of the enlarged term still unpaid, one Campbell, who held a quantity of it, brought suit in the Circuit Court for Missouri against the city.

On the trial the holder of the scrip offered the same in evidence. The city objected to its reception on the ground that section 8 of the act to amend the charter of the city of Kenosha, approved March 23d, 1853, and also the ordinance and other proceedings under it, were void, as being in contravention of the constitution of the State of Wisconsion. And that the scrip had not been validated either by the subsequent act of 1857, making it the duty of the railroad commissioner to redeem the scrip, nor by the proceeding of the city council in 1859, procuring an enlargement of the time; inasmuch as it was not in the power of either the city council or of the legislature itself, to give validity to that which was, by the constitution, void.

The court sustained the objection, and judgment was given for the city.

Mr. Cary, for the city and in support of the judgment:

It will be conceded that under no act of legislature in this case, could the bonds be valid without a previous submission of the question of their issue to the people, and an approval of such issue by them. Now the only question of this sort submitted to them was 'under and in accordance with section 5 of an act to amend the city of Kenosha, &c., approved March 23d, 1853.'

This act, therefore, of March 22d, 1853, authorizing the city to subscribe to 'a sum not exceeding $150,000,' has no reference to the matter in dispute, and is out of the case.

That section 8 of the act of March 23d, is a violation of the provision of the constitution which says, that it shall be the duty of the legislature to restrict the power of cities to contract debts, so as to prevent abuses in that matter by them, is clear. It looks as if it were made in studied defiance of the constitution. Over and above what the charter authorizes, cities, under the act, may borrow any sum for any time, payable anywhere, and pretty much at any rate of interest.

As an orginal proposition, it would be the duty of this court to hold this section unconstitutional and void.

But the question is not an open one in this court. It has already been passed upon by the Supreme Court of the State of Wisconsin.

In Foster v. The City of Kenosha, a party sought to enjoin the city of Kenosha from collecting a certain tax levied upon real estate in the said city, for the purpose of paying this identical scrip and the remainder of the same issue, and an injunction was obtained, restraining its collection. On appeal to the Supreme Court of the State the judgment was affirmed, on the ground that the section was in conflict with the constitution of Wisconsin and void.

We need not say that the construction given to a statute of a State by the highest judicial tribunal of such State is regarded as a part of the statute, and is binding upon the courts of the United States. This is settled law.

The issue of the scrip then was not the case of a power granted by the legislature, and defectively or improperly executed, but was a void act, an act void in toto; void in its inception, execution, and result.

If this is so, certainly no ratification of it by the city council would make it valid. The council could give no more validity to the scrip by ratifying it than they did by issuing it. What they meant and wished was plain by the latter act; but their meanings and wishes are of no importance, the constitution intervening.

But could they ratify the scrip even had the legislature attempted to confer upon them the power? Could they, by mere ratification, make valid what was before void in toto and of no binding force whatever? Did mere change of the scrip change its character in respect to obligation? Void in its inception, would not nullity follow all its mutations?

But did the legislature ever ratify or direct the councils to ratify the debt? The act of the legislature providing for the election of a railroad commissioner certainly does not ratify the debt expressly.

And in regard to a debt which, by the constitution, was forbidden to be contracted, and was void in toto, how can a ratification be implied merely?

The meaning of the act was, that the commissioner 'shall pay it;' assuming it, of course, to be valid; issued according to law, held by honest holders, and having the other requisites required by courts to give force to obligations: not to say that he 'shall pay' all the drafts which, by being signed, were 'scrip,' constitutional or unconstitutional, legal or illegal, honestly held or dishonestly held. Such a construction would be very forced.

The provision of the constitution is in restraint of municipal corporations embarking in wild schemes of adventure under the fancy of improvements, and is a wise one. It has become a necessary protection to holders of property and payers of taxes. It ought not to be made nugatory by judicial legislation.

The judgment should therefore be affirmed.

Mr. Lynde, contra, for the creditor.

Mr. Justice DAVIS delivered the opinion of the court.

title: Campbell v. City of Kenosha


text: Talk:Campbell v. City of Kenosha

title: Talk:Campbell v. City of Kenosha


text:
Campbell v. City of Kenosha/Opinion of the Court

The species of securities on which this suit is brought has been frequently before this court for consideration, and there are very few questions connected with them that have not been decided. This action involves the validity of the bonds or scrip issued by the defendant in aid of the Kenosha and Beloit Railroad Company. In Wisconsin there is nothing in the organic law restraining the legislature from conferring on municipal corporations the power to subscribe for stock in a railroad or other work of public improvement; and the highest court of the State has sustained the validity of securities given for such purposes by towns and cities benefited by their construction, where the power to do so had been granted by the General Assembly.

But it is insisted the bonds in controversy were executed and issued without the authority of law previously conferred, and therefore the city of Kenosha must be relieved from their payment.

The question presented is an important one; but, in our opinion, easily solved, when the whole legislation on the subject is taken into consideration. On the 22d day of March, 1853, an act of the legislature was passed authorizing the city, if a majority of the people voted for it, to issue its corporate bonds, not exceeding $150,000, to aid in the construction of the Kenosha and Beloit Railroad, and to levy taxes to pay for them; and provision was made that the railroad company should secure the city, by a lien on its property, when the bonds were executed and delivered to them. This law conferred full power on the city to contract an indebtedness (limited in amount) for the promotion of a work of internal improvement, of common benefit to all its inhabitants. A majority of the people did vote to extend the required aid, and the city issued its obligations and delivered them to the company, taking in exchange certificates of stock and indemnity against loss. All parties rested in the belief that these proceedings were according to law, and the securities were negotiated in good faith, and the city received the benefit of them. So far as the corporate authorities could ratify them, they have done it, by a series of unmistakable acts: by voting to levy taxes; redeeming a portion of the securities first issued, and exchanging the residue for new ones; issuing scrip in settlement of unpaid interest, and selling the securities obtained from the company by way of indemnity.

The city also, in pursuance of an express act of the legislature, evidently passed to protect the very interests created by the subscription to the capital stock of the road, elected a commissioner to represent it in the meeting of the board of directors, vote its shares of stock, and exercise a general oversight over its affairs in connection with the road.

But it is insisted, that the holders of these bonds or scrip (which is the form the securities assumed) cannot recover, because the common council, in submitting to the legal voters the question of whether a tax of $150,000 should be levied and collected to aid the Kenosha and Beloit Railroad, declared, by ordinance, that the question was submitted in accordance with the provisions of section eight of 'an act to amend the charter of the city,' approved March 23, 1853, and section forty-four of 'an act to incorporate the city,' approved February 8, 1850. It is unnecessary to notice the latter-named section, as the consideration of the first one is alone material to the subject of this inquiry.

Section eight of the amended charter authorizes the city council of Kenosha to levy and collect special taxes to any amount, and for any purpose, which may be considered essential to promote or secure the common interest of the city; and it is contended that it is in conflict with the third section of the eleventh article of the Wisconsin constitution, and that the proceedings of the common council under it cannot be sustained. The Wisconsin constitution provides that the legislature, in organizing municipal corporations, shall restrict their power to tax, assess, borrow money, contract debts, and loan their credit. The provision was a wise one, and has undoubtedly tended to prevent abuses on the part of incorporated cities and villages, in levying taxes and raising money.

The Supreme Court of the State, in the interpretation of the foregoing provision of the constitution, has declared that the legislature could not confer on a municipal corporation unlimited power to levy taxes and raise money, beyond what was proper for purely municipal purposes; and as this was attempted to be done in section eight of the amended charter of the city of Kenosha, that the taxes levied under it, to aid the Kenosha and Beloit Railroad, were unauthorized, and the city authorities could be restrained from collecting them at the instance of a party interested. This is the extent of the decision. The learned court expressly declined to decide whether the scrip issued by the common council to aid the road was valid or not.

In fact, the whole decision is based on the unconstitutionality of section eight, above referred to, which, as it purported to confer upon the city unlimited powers to levy taxes and borrow money, was in violation of the constitution of the State. The court say that 'the suit was by Foster in his own behalf, and in behalf of other land-owners, to restrain the city of Kenosha from collecting a special tax of $18,625, levied by the city upon the real estate therein situated, for the purpose of paying a debt originally contracted by the stock subscriptions of the city to the Kenosha and Beloit Railroad Company.' This is all that appears in the report of the case as to the character of the suit. It is apparent that the special act of the legislature authorizing the subscription, and the further amendment to the charter of the city substantially ratifying it, were not before the court. They are not referred to in the opinion of the court, and the fair presumption is, that they were not referred to in the pleadings, as the purpose which the complainant had in view did not require that they should be. We are, therefore, unembarrassed by any adverse decision upon the character of the securities in suit, and the question of their validity is an open one for discussion and decision.

It is manifest, that the common council of Kenosha did not attempt the exercise of the unlimited power to raise money conferred on them, because they limited the amount to be raised to the exact sum, which the legislature, by an express act, authorized. Under the provisions of this act, ample power was given to accomplish the object which the city had in view-aiding to build a railroad which would bring trade and travel to it. By the very terms of this act, the subscription of $150,000 could be made, and taxes levied to pay for it, if the people voted in favor of it. It is conceded, if the submission had been in words under the special act, instead of the amended charter, all controversy would be at an end.

It is argued, notwithstanding there was complete authority to raise the money and levy the taxes under a valid law, yet, as the common council, in taking the vote, named a provision of their charter, which is invalid, that, therefore, not only the payment of the tax can be avoided, but also the payment of the scrip.

Whether this position is well taken or not the necessities of the case do not require to be decided, for, in our opinion, subsequent legislation has cured all antecedent irregularities.

In 1857, after the scrip had been issued to the railroad company, under the proceedings of the common council, the legislature passed a revised charter for the city. Among other things, provision was made for the election of a railroad commissioner, annually, as a city officer. There had been previous legislation in relation to this officer, but his duties and powers by the revised charter were much enlarged. He was constituted, ex-officio, a member of the board of directors of the Kenosha and Beloit Railroad, with power of voting as an individual stockholder, and, in addition, was required to receive from the city treasurer all moneys which were paid on account of the tax for the road, and commanded to redeem all script which had been issued to the company as the same became due, making such provision for it, or recommending such measures to the common council as he should deem necessary for the benefit of the tax-payers of the city.

This is not in terms a curative act, but it has that effect by fair implication. It is not doubted the legislature could, by a direct act of confirmation, legalize the issue of this scrip, notwithstanding the submission of the question to the vote of the people was under the wrong law. If by a direct act, equally in any other way, if the intention of the legislature to legalize, clearly appears.

It is conceded the legislature had the right to authorize the city of Kenosha to take stock in a railroad, issue bonds to pay for it, and provide for their redemption by the levy and collection of a tax. It did authorize these things to be done, if the people approved them; but as their sanction was obtained in the wrong way, thereby involving the legality of their proceedings, good faith and sound policy required, at the hands of the legislature, a full legislative recognition of the legality of the subscription and the issue of the scrip. This was done by the provisions of the revised charter of 1857.

Of such importance did the legislature consider the interests of Kenosha in the railroad to Beloit that a commissioner, of the dignity of a city officer, was deemed necessary to look to them. And that the legislature intended to ratify the proceedings of the common council, which resulted in the subscription of stock to the railroad and issue of scrip, is very clear, else why was the commissioner directed to provide for the payment of the scrip as it matured? The words of the law are imperative. The commissioner shall redeem the scrip. Surely the legislature would not command this to be done unless it intended to recognize the validity of the scrip.

'To redeem all scrip which had been issued to said railroad company as the same became due'-the very words of the law-can mean nothing else than that such issue of scrip had received legislative sanction, and, in the opinion of the law-makers, ought to be paid.

If this is so, the ratification of the disputed proceedings of the common council is as complete as if they had been particularly named, and their issue of scrip is relieved from all taint of illegality.

After the revised charter was given to the city, the common council, at different times, and in various ways, recognized the validity of the scrip, and finally, in June, 1859, settled with some of the holders of it, who were willing to extend the time for payment-taking up the old securities and issuing new.

This suit is brought upon the scrip received on that settlement, and we think the learned court below erred in excluding it from the jury.

The judgment of the Circuit Court is reversed with costs, and the cause is remanded to the court below, with instructions to issue

A VENIRE DE NOVO.


text: Talk:Campbell v. City of Kenosha/Opinion of the Court


text:
Myers v. Fenn

MYERS, Kinsly, and Stout, having obtained judgment against Fenn, filed a bill against him and three other persons named respectively, Thompson, Green, and Roberts,-which last-named person had been Fenn's general assignee, charging a fraudulent transfer of property by him to them. Before issue was had on this bill, one Bowen, having a judgment against Fenn for $3260.96, and a certain Reed having one for $3916.75, upon each of which execution had been returned unsatisfied, united by petition in the bill of Myers, Kinsly, and Stout. The petitions were filed without any order of court; but no objection was made, and the hearing went on as if an order had been granted. The bill set forth that Fenn, being hopelessly insolvent, had conveyed large quantities of property both to Thompson and to Green, receiving therefor payment in county bonds and other securities then so greatly depreciated as to make it plain that a fraud was intended. And as respected Robbins (the general assignee), that the assignment was not made in good faith, but in order to place the property beyond the reach of executions, and it prayed that it might be set aside.

After Bowen and Reed filed their petitions the proceeding as respected Thompson and Green was dismissed by consent of parties, the matter of the general assignment being thus the only matter remaining charged as fraudulent.

As respected this it appeared by the testimony of Robbins, the general assignee, called by the complainants, and the only witness examined, that Fenn was wholly insolvent and had transferred all his property of every sort to him, for the benefit of his creditors exclusively. It appeared also, however, on cross-examination, that before the assignment was resolved on, Fenn, by the advice of his friends, had come to Thompson, asking him to become the assignee; that Thompson had declined; that being still urged, Thompson had gone to counsel and ascertained that upon an estate such as Fenn's he would be entitled to six per cent. commission; that examining Fenn's affairs he found that the amount of debt to be collected would be about $100,000, but that so very large an amount of it would be paid by counter demands on Fenn himself, that there would not be sufficient money to pay the commissions. Thompson therefore refused to accept the office of assignee unless Fenn paid him a 'bonus,' which Fenn paid him, accordingly, in the shape of three county bonds for $1000 each, and worth actually about $2300. This sum was apparently meant to be on account of commissions.

The Circuit Court for the Northern District of Illinois (in which the bill was filed) dismissed it. Appeal.

Mr. E. S. Smith, for the appellants:

The giving of the bonds to Robbins, vitiated the assignment.

A debtor cannot fix compensation for an assignee, much less can he pay a large sum in advance for labor to be performed. If the debtor could do this, he might as well give to the assignee discretionary power which he could exercise against the will of the creditors.

In Nichols v. McEwen, the assignment provided for the payment of a counsel fee to the assignee, who was a lawyer, over and above the expenses of the commission for executing the trust. The assignment was held void for that provision. Our case is stronger than that one. There the provision was made upon the face of the assignment and was open for the creditors to know what the provision was. Here nothing appeared until the parties were compelled to answer and testify.

Mr. Van Armam, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: Myers v. Fenn


text: Talk:Myers v. Fenn

title: Talk:Myers v. Fenn


text:
Myers v. Fenn/Opinion of the Court

The complainant, Bowen, by petition, united in a creditor's bill which had been filed against the defendants, before it was at issue. Subpoenas were issued and served on him; and, although no order appears to have been entered permitting the joinder of the petitioner in the suit, all the subsequent proceedings were carried on as if such order had been entered. No objection was made to the joinder, but, on the contrary, the court and all parties seem to have acquiesced.

The practice of permitting judgment creditors to come in and make themselves parties to the bill, and thereby obtain the benefit, assuming at the same time their portion of the costs and expenses of the litigation, is well settled.

The judgment, which is set forth in his petition against Fenn, the common debtor, is for the sum of $3260.96, upon which execution had been issued and returned. At the same time another judgment creditor, T. B. Reed and others, joined in the proceedings without objection. This judgment had been rendered against Fenn for the sum of $3916.75. The case went to a hearing on the pleadings and proofs, and a decree was entered dismissing the bill. It is now here on appeal.

Although the bill was originally filed against four parties, while the suit was progressing, and after the above judgment creditors had become parties to the proceedings, it was dismissed by the stipulation and consent of the complainants as to two of them-Thompson and Green-who were charged in the bill as having become the owners of large parcels of the estate of Fenn, the debtor, after his insolvency and before he made an assignment for the benefit of his creditors. The dismissal of these parties narrowed the litigation and confined the issue between the judgment creditors on the one side, and the debtor and Robbings, his general assignee, on the other, and who was the only witness examined in the case. He was called on the part of the complainants. His testimony shows, that Fenn was heavily in debt and hopelessly insolvent. That he had divested himself of all his property in his endeavors to adjust his debts, and by the assignment for the benefit of his creditors. There was no concealment of any of his assets, or attempted appropriation of any part of them for his own benefit or the benefit of his family. All that he possessed appears to have been devoted by the assignment to the use of his creditors, and we perceive no reason for dissenting from the conclusion at which the court below arrived in its disposition of the case.

DECREE AFFIRMED.

title: Myers v. Fenn/Opinion of the Court


text: Talk:Myers v. Fenn/Opinion of the Court

title: Talk:Myers v. Fenn/Opinion of the Court


text:
Seaver v. Bigelows

SEAVER filed a creditor's bill against the defendants, in the Circuit Court for the Northern District of Illinois, setting forth a judgment against one of the defendants, for the sum of $839.48, and, he being insolvent, seeking to get satisfaction of it from a fund exceeding $2000 in the hands of another of the defendants who, it was charged, was in possession of the fund by fraud. Plimpton, who joined in the bill, set out a judgment for the sum of $988.47. The suit went to issue, and was heard on the pleadings and proofs, and a decree entered dismissing the bill. The case being now here on appeal, a question arose whether this court had jurisdiction, as the statute limiting appeals from the Circuit Court is confined to cases where the sum in dispute exceeds $2000, exclusive of costs.

Mr. E. S. Smith, in support of the jurisdiction:

The act of Congress allows appeals in equity, when the matter in dispute shall exceed the sum or value of two thousand dollars. The judgment is not the amount, as that is not in dispute, it having been fixed by the court at law. Therefore, the value of the property must be the sum in controversy. A decree, in cases of this kind, need not state the amount to be paid. The prayer in the bill, is to apply the property, fraudulently disposed of, to pay the sums fixed by the judgments. Freeman v. Howe is decisive. It was there held, that a bill filed on the equity side of the court to restrain or regulate judgments, or suits at law, in the same court, and thereby prevent any injustice or inequitable advantage, under mesne or final process, is not an original suit, but ancillary and dependent; supplementary merely to the original suit, out of which it had arisen.

The bill, in this case, was not filed as an original suit, but to aid the judgment at law.

Mr. Thomas Hoyne, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: Seaver v. Bigelows


text: Talk:Seaver v. Bigelows

title: Talk:Seaver v. Bigelows


text:
Seaver v. Bigelows/Opinion of the Court

The judgment creditors who have joined in this bill have separate and distinct interests, depending upon separate and distinct judgments. In no event could the sum in dispute of either party exceed the amount of their judgment, which is less than $2000. The bill being dismissed, each fails in obtaining payment of his demands. If it had been sustained, and a decree rendered in their favor, it would only have been for the amount of the judgment of each. We say nothing as to the costs, as the statute excludes them on the question of jurisdiction.

It is true, the litigation involves a common fund, which exceeds the sum of $2000, but neither of the judgment creditors has any interest in it exceeding the amount of his judgment. Hence, to sustain an appeal in this class of cases, where separate and distinct interests are in dispute, of an amount less than the statute requires, and where the joinder of parties is permitted by the mere indulgence of the court, for its convenience, and to save expense, would be giving a privilege to the parties not common to other litigants, and which is forbidden by law.

The case is analogous to proceedings in admiralty in behalf of seamen for wages, and salvors for salvage, where the practice of the court is well settled.

In the case of the seaman, though the contract is separate and not joint, all may join in the libel and carry on the proceedings, in form, jointly, to the decree, which assigns to each severally the amount due. If the sum thus assigned is under $2000, neither party can appeal. So in respect to the case of salvage, where the amount charged upon the goods of each of the several claimants is less than this sum.

The case of Rich v. Lambert furnishes another illustration. There, several owners of cargo, having separate and distinct interests, filed a libel against the vessel for damage done to the goods on the voyage. The court decreed damages in their favor, but with the exception of two of the cases the amount was under $2000. The court dismissed the appeals for want of jurisdiction.

The only plausible ground upon which the jurisdiction can be sustained in the case before us is, that the several judgment creditors are proceeding against a common fund, which each is interested to have applied to the payment of his demand. But the same ground for the jurisdiction existed in the case of the seaman, salvors, and owners of cargo for damages. The answer is, that the interest of the judgment creditors in the common fund could not exceed the amount of their several and separate judgments, and if these are under the $2000, the same reason exists for cutting off the appeal as if the suit had been separate and not joint. Indeed, the joinder of parties complainant in the case of creditors' bills is so much a matter of form, that new parties may come in at almost any stage of the proceedings on a proper application; and, under special circumstances, even after decree, if they can show an interest in the common fund. And the party first instituting proceedings may do so on behalf of himself and all other creditors who may come in and assume their share of the costs and expenses.

DISMISSED FOR WANT OF JURISDICTION.

NOTE.-Similar decree made for the same reason in the case of Field v. Bigelow, and in one branch of Myers v. Fenn.

title: Seaver v. Bigelows/Opinion of the Court


text: Talk:Seaver v. Bigelows/Opinion of the Court


text: United States v. Repentigny

title: United States v. Repentigny


text: Talk:United States v. Repentigny

title: Talk:United States v. Repentigny