text:
Cunningham v. Macon and Brunswick Railroad Company/Opinion of the Court

This is an appeal from the decree of the circuit court for the southern district of Georgia, dismissing the bill of complainant on demurrer. The bill is filed by Cunningham a citizen of the state of Virginia, against Alfred H. Colquitt, as governor of the state of Georgia, J. W. Renfroe, as treasurer of the state, the Macon & Brunswick Railroad Company, and A. Flewellen, W. A. Lofton, and George S. Jones, styling themselves directors of said railroad company, John H. James, a citizen of Georgia, and the First National Bank of Macon. The bill sets out, with reasonable fullness and with references to exhibits which make its statements clear, what we will try to state as far as necessary, in shorter terms.

It alleges that on the third day of December, 1866, the assembly of Georgia passed an act authorizing the governor to indorse the bonds of the Macon & Brunswick Railroad Company to the extent of $10,000 per mile, and that under this authority the governor indorsed bonds to the amount of $1,950,000 which were afterwards negotiated by said company. The statute under which this was done made the indorsement of these bonds to operate as a prior mortgage upon all the property of the company, which could be enforced by a sale by the governor upon default in payment of the bonds so indorsed, or interest on them as it fell due. In addition to this the company executed and delivered to the governor, on the twenty-second of June, 1870, a written mortgage confirming the lien created by the statute, which was duly acknowledged and recorded. October 27, 1870, the legislature, by an act amending the act of December 3, 1866, authorized the governor to indorse an additional $3,000 per mile of the bonds of the company, which was done, and of this series of bonds the complainant became the holder and owner of 19 for $1,000 each.

It is then alleged that on July 1, 1873, the company failed to pay its interest coupons upon both these sets of indorsed bonds, and that in a few days thereafter the governor, under the power vested in him by the act of 1866, took possession of the road and the property of the company and placed them in the hands of Flewellen as receiver; and that on the first Tuesday in June, 1875, he sold said road to the state of Georgia for the sum of $1,000,000, and made a conveyance of it to the state accordingly, a copy of which is filed as an exhibit to the bill. It is also alleged that the state of Georgia has taken up since that time the entire issue of $1,950,000, giving her own bonds in place of the bonds which she had so indorsed.

The bill assails this transaction because the governor, in advertising the sale, gave notice that he would accept in payment for bids bonds of the state at par, of bonds of the first series of $1,950,000 at their market value, or cash, and would not receive any of the second series of $600,000 in payment. Also because the sale was made improvidently, at a bad time, as the governor was informed by his agent, Flewellen, and because the governor was not authorized to bid for the property, and the state had no constitutional power to make the purchase. And it is further alleged that if the sale is not absolutely void, it is voidable, because under the statutory and executed mortgages the state is trustee of the property mortgaged for the benefit of the bondholders, and her purchase can be set aside by the beneficiaries under the trust when they elect to do so. The bill insists that by the taking up and payment of the first series of indorsed bonds their lien on the property is extinguished, and that of the second series is now become paramount, and this suit is brought to foreclose that mortgage lien. And if the court shall be of opinion that the sale was valid, then the bill insists that the holders of the second series were entitled to the paid pro rata under that sale, and that when the legislature of Georgia appropriates any money to pay the bonds which it gave in exchange for $1,950,000 of the indorsed railroad bonds, the amount so appropriated should be divided pro rata between these bonds and the $600,000 of the second series of indorsed bonds.

The prayer of the bill is for the appointment of a receiver, to whom all the property of the company shall be delivered; that the mortgage be foreclosed and the proceeds applied to payment of the bonds of the second series so far as necessary for that purpose. Or, if the court shall be of opinion that the sale was valid, that Renfroe be enjoined from paying the coupons of interest on the state bonds exchanged for the first series of bonds, and that the holders thereof be made parties to the suit, and be compelled to account to the holders of the $600,000 series of bonds for their pro rata share of said exchanged bonds; and the bill prays that Colquitt, the governor, and Renfroe, the treasurer, and the three directors of the company be compelled by subpoena to appear and answer it and certain interrogatories in it, and produce certain papers, and that Renfroe be enjoined from paying the coupons on the state bonds, exchanged for the indorsed bonds, and that the state of Georgia may come in and make herself a party defendant to this bill if she should wish to do so; and there is a prayer for general relief.

To this bill there was filed by Flewellen, Lofton, and Jones, the directors, a demurrer and plea, as it is called. The plea is to the effect that they have no interest in the road otherwise than as agents of the state of Georgia, for which they hold and control the Macon & Brunswick Railroad and all its property and franchises of every description, and the plea and demurrer both rely on the proposition that the court has no jurisdiction of the case, because it cannot proceed without the state as a party, and that the court cannot compel the state to become a party to the suit. Renfroe, the treasurer, filed a similar plea, and Colquitt, the governor, filed a demurrer and a plea separately. The ground of demurrer stated by the governor is that it is apparent on the face of the bill that the court cannot take cognizance of the matters and things set up in said bill as against the defendant, because it appears that he has no personal interest in the same, but that it is an attempt to make the state of Georgia a party to the suit through the defendant as governor, so as to bind the state by the judgment and decision of the court in the case. On this demurrer of Colquitt and the joint demurrer of the three trustees the case was decided and the bill dismissed. Mr. Justice Woods in dismissing it said:

'The bill is to all intents and purposes a suit against the     state. It is mainly her property, and not that of Alfred H.     Colquitt or J. W. Renfroe, that is to be affected by the      decree of this court. It is the title of the state that is     assailed. The attack is not made against the state directly,     but through her officers This indirect way of making the      state a party is just as open to objectior as if the state      had been named as a defendant.' 3 Woods, 426.

The failure of several of the states of the Union to pay the debts which they have contracted and to discharge other obligations of a contract character, when taken in connection with the acknowledged principle that no state can be sued in the ordinary courts as a defendant, except by her own consent, has led, in recent times, to numerous efforts to compel the performance of their obligations by judicial proceedings to which the state is not a party. These suits have generally been instituted in the circuit courts of the United States, or have been removed into them from the state courts.

The original jurisdiction of this court has also been invoked in the recent cases of New Hampshire v. Louisiana and New York v. Same, [2 SUP. Ct. REP. 176.] These latter suits were based on the proposition that the constitutional provision that states might sue each other in this court would enable a state whose citizens were owners of obligations of another state to take a transfer of those obligations to herself and sue the defaulting state in the court. The doctrine was overruled in those cases at the last term by the unanimous opinion of the court. In the suits which have been instituted in the circuit courts the effort has been, while acknowledging the incapacity of those courts to assume jurisdiction of a state as a party, to proceed in such a manner against the officers or agents of the state government, or against property of the state in their hands, that relief can be had without making the state a party. The same principle of exemption from liability to suit as applied to the government of the United States has led to like efforts to enforce rights against the government in a similar manner. And it must be confessed that, in regard to both classes of cases, the questions raised have rarely been free from difficulty, and the judges of this court have not always been able to agree in regard to them. Nor is it an easy matter to reconcile all the decisions of the court in this class of cases. While no attempt will be made here to do this, it may not be amiss to try to deduce from them some general principles, sufficient to decide the case before us. It may be accepted as a point of departure unquestioned, that neither a state nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a state may be made a party in the supreme court of the United States by virtue of the original jurisdiction conferred on that court by the constitution. This principle is conceded in all the cases, and whenever it can be clearly seen that the state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. But in the desire to do that justice, which in many cases the courts can see will be defeated by an unwarranted extension of this principle, they have in some instances gone a long way in holding the state not to be a necessary party, though some interest of hers may be more or less affected by the decision. In many of these cases the action of the court has been based upon principles whose soundness cannot be disputed. A reference to a few of them may enlighten us in regard to the case now under consideration.

1. It has been held in a class of cases where property of the state, or property in which the state has an interest, comes before the court and under its control, in the regular course of judicial administration, without being forcibly taken from the possession of the government, the court will proceed to discharge its duty in regard to that property. And the state, if it choose to come in as plaintiff, as in prize cases or to intervene in other cases when she may have a lien or other claim on the property, will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judgment of the court. Of this class are the cases of The Siren, 7 Wall. 157; The Davis, 10 Wall. 20; and Clark v. Barnard, [2 SUP. CT. REP. 878,] at the last term.

2. Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him. See Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U.S. 209; Meigs v. McClung, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall. 393. To this class belongs also the recent case of U.S. v. Lee, 106 U.S. 196, [S.C.. 1 SUP. CT. REP. 240,] for the action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment. And the defendants, Strong and Kaufman, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and, therefore, insufficient as a defense. The judgment in that case did not conclude the United States, as the opinion carefully stated, but held the officers liable as unauthorized trespassers, and turned them out of their unlawful possession.

3. A third class, which has given rise to more controversy, is where the law has imposed upon an officer of the government a well-defined duty in regard to a specific matter, not affecting the general powers or functions of the government, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process. Of this class are writs of mandamus to public officers, as in Marbury v. Madison, 1 Cranch, 137; Kendall v. Stokes, 3 How. 87; U.S. v. Schurz, 102 U.S. 378; U.S. v. Boutwell, 17 Wall. 604. But in all such cases, from the nature of the remedy by mandamus, the duty to be performed must be merely ministerial, and must involve no element of discretion to be exercised by the officer.

It has, however, been much insisted on that in this class of cases, where it shall be found necessary to enforce the rights of the individual, a court of chancery may, by a mandatory decree or by an injunction, compel the performance of the appropriate duty, or enjoin the officer from doing that which is inconsistent with that duty and with plaintiff's rights in the premises. Perhaps the strongest assertion of this doctrine is found in the case of Davis v. Gray, 16 Wall. 203. In that case, the state of Texas having made a grant of the alternate sections of land along which a railroad should thereafter be located, and the railroad company having surveyed the land at its own expense and located its road through it, the commissioner of the state land-office and the governor of the state were, in violation of the rights of the company, selling and delivering patents for the sections to which the company had an undoubted vested right. The circuit court enjoined them from doing this by its decree, which was affirmed in this court. Judge HUNT did not sit in the case, and Justice DAVIS and Chief Justice CHASE dissented, on the ground that it was in effect a suit against the state. Though there are some expressions in the opinion which are unfavorably criticised in the opinions of both the majority and minority of this court in the recent case of U.S. v. Lee, supra, the action of the court has not been overruled. But it is clear that, in enjoining the governor of the state in the performance of one of his executive functions, the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further. Nor was there in that case any affirmative relief granted by ordering the governor and land commissioner to perform any act towards perfecting the title of the company.

The case of the Board of Liquidation v. McComb is to the same effect. The board of liquidation was charged by the statute of Louisiana with certain duties in regard to issuing new bonds of the state in place of old ones, which might be surrendered for exchange by the holders of the latter. The amount of new bonds to be issued was limited by a constitutional provision. McComb, the owner of some of the new bonds already issued, filed his bill to restrain the board from issuing that class of bonds in exchange for a class of indebtedness not included within the purview of the statute, on the ground that his own bonds would thereby be rendered less valuable. This court affirmed the decree of the circuit court enjoining the board from exceeding its power in taking up by the new issue a class of state indebtedness not within the provisions of the law on that subject. 92 U.S. 531.

In the opinion in that case the language used by Mr. Justice BBADLEY well and tersely thus expresses the rule and its limitations:

'The objections to proceeding against state officers by     mandamus or injunction are-First, that it is in effect      proceeding against the state itself; and, second, that it      interferes with the official discretion vested in the      officers. It is conceded that neither of these can be done. A     state, without its consent, cannot be sued as an individual;      and a court cannot substitute its own discretion for that of      executive officers, in matters belonging to the proper      jurisdiction of the latter. But it has been settled that     where a plain official duty requiring no exercise of      discretion is to be performed, and performance is refused,      any person who will sustain a personal injury by such refusal      may have a mandamus to compel performance; and when such duty      is threatened to be violated by some positive official act,      any person who will sustain personal injury thereby, for      which adequate compensation cannot be had at law, may have an      injunction to prevent it.'

It is believed that this is as far as this court has gone in granting relief in this class of cases. The case of Osborn v. Bank of U.S. 9 Wheat. 738, often referred to, was upon this principle, and goes no further; for, in that case, a preliminary injunction of the court forbidding the state officer from placing the money of the bank, which he had seized, in the treasury of the state, having been disregarded, the final decree corrected this violation of the injunction by requiring the restoration of the money thus removed. See Louisiana v. Jumel, 107 U.S. 711; [S.C.. 2 SUP. CT. REP. 128.] On the other hand, in the cases of Louisiana v. Jumel and Elliott v. Wiltz, decided at the last term, very ably argued and very fully considered, the court declined to go any further. 107 U.S. 711; [S.C.. 2 SUP. CT. REP. 128.]

In the first of these cases the owners of the new bonds issued by the board of liquidation, mentioned in McComb's Case, supra, brought their bill in equity, in the circuit court of the United States, to compel the auditor of state and the treasurer of the state to pay out of the treasury of the state the overdue interest coupons on their bonds, and to enjoin them from paying any part of the taxes collected for that purpose for the ordinary expenses of the government. They at the same time applied to the state court for a writ of mandamus to the same officers, which suit was removed into the circuit court of the United States. In this they asked that these officers be commanded to pay out of the moneys in the treasury the taxes which they maintained had been assessed for the purpose of paying the interest on their bonds, and to pay such sums as had already been diverted from that purpose to others by the officers of the government. The circuit court refused the relief asked in each case, and this court affirmed the judgment of that court. The short statement of the reason for this judgment is that as the state could not be sued or made a party to such proceeding, there was no jurisdiction in the circuit court, either by mandamus at law or by a decree in chancery, to take charge of the treasury of the state, and, seizing the hands of the auditor and treasurer, to make distribution of the funds found in the treasury in the manner which the court might think just. The chief justice said:

'The treasurer of the state is the keeper of the money     collected from this tax, just as he is the keeper of other      public moneys. The taxes were collected by the tax     collectors, and paid over to him-that is to say, into the      state treasury-just as other taxes were when collected. He is     no more a trustee of these moneys than he is of all other      public moneys. He holds them only as agent of the state. If     there is any trust, the state is the trustee; and, unless the      state can be sued, the trustee cannot be enjoined. The     officers owe duty to the state alone, and have no contract      relations with the bondholders. They can only act as the     state directs them to act, and hold as the state allows them      to hold. It was never agreed that their relations with the     bondholders should be other than as officers of the state, or      that they should have any control over this fund except to      keep it like other funds in the treasury, and pay it out      according to law. They can be moved through the state, but     not the state through them.'

We think the foregoing cases mark, with reasonable precision, the limit of the power of the courts in cases affecting the rights of the state or federal governments in suits to which they are not voluntary parties. In actions at law, of which mandamus is one, where an individual is sued, as for injuries to person or to property, real or personal, or in regard to a duty which he is personally bound to perform, the government does not stand behind him to defend him. If he has the authority of law to sustain him in what he has done, like any other defendant he must show it to the court and abide the result. In either case the state is not bound by the judgment of the court, and generally its rights remain unaffected. It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority.

Courts of equity proceed upon different principles in regard to parties. As was said in Barney v. Baltimore, 6 Wall. 280, there are persons who are merely formal parties without real interest, and there are those who have an interest in the suit, but which will not be injured by the relief sought, and there are those whose interest in the subject-matter of the suit renders them indispensable as parties to it. Of this latter class the court said, in Shields v. Barrow, 17 How. 130, 'they are persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without affecting that interest, or leaving the controversy in such a condition that its final disposition may be wholly inconsistent with equity and good conscience.' 'In such cases,' says the court in Barney v. Baltimore, supra, 'the court refuses to entertain the suit when these parties cannot be subjected to its jurisdiction.'

In the case now under consideration the state of Georgia is an indispensable party. It is in fact the only proper defendant in the case.

No one sued has any personal interest in the matter, or any official authority to grant the relief asked. No foreclosure suit can be sustained without the state, because she has the legal title to the property, and the purchaser under a foreclosure decree would get no title in the absence of the state. The state is in the actual possession of the property, and the court can deliver no possession to the purchaser.

The entire interest, adverse to plaintiff, in this suit is the interest of the state of Georgia in the property, of which she has both the title and possession. On the hypothesis that the foreclosure by the governor was valid, the trust asserted by plaintiff is vested in the state as trustee, and not in any of the officers sued.

No money decree can be rendered against the state, nor against its officers, nor any decree against the treasurer, as settled in Louisiana v. Jumel, supra. If any branch of the state government has power to give plaintiff relief it is the legislative. Why is it not sued as a body, or its members by mandamus to compel them to provide means to pay the state's indorsement? The absurdity of this proposition shows the impossibility of compelling a state to pay its debts by judicial process.

The decree of the circuit court is affirmed. HARLAN, J., dissenting.

The bill in this suit was filed by Cunningham, a citizen of Virginia, in behalf of himself and all holders of the second series of the bonds of the Macon & Brunswick Railroad Company, indorsed by the state of Georgia, who may choose to be made parties to the suit and share the expenses thereof. The defendants are: The Macon & Brunswock Railroad Company, a corporation of Georgia; Edward A. Flewellyn, W. L. Lofton, and George S. Jones, citizens of Georgia, and styling themselves 'Directors of the Macon & Brunswick Railroad;' J. W. Renfroe, treasurer, and Alfred H. Colquitt, governor, of the state of Georgia, both citizens of that state; the First National Bank of Macon, a corporation created under the laws of the United States and located at Macon, Georgia; and John H. James, a citizen of Georgia. The suit relates to the Macon & Brunswick Railroad, of which Flewellyn, Lofton, and Jones, as directors aforesaid, are in possession, and which they are managing and operating in entire disregard, as the bill alleges, of the rights of complainant and other holders of the before-mentioned bonds. But the suit has other features of which no notice is taken in the opinion of the court. The bill alleges that on or about July 2, 1873, the then governor of Georgia not only seized the railroad and all other property of the company, but certain other property embraced in a deed of trust to one Whittle, which was not covered by the statutory and executed mortgages, so far as the $1,950,000 series of indorsed bonds is concerned, because acquired by the company, after the last of that series had been indorsed, with funds other than the proceeds of the bonds, but which was covered by the mortgages so far as the $600,000 series is concerned, having been bought prior to the indorsement of those bonds. The property covered by the deed of trust to Whittle was, the bill alleges, transferred to the trustees therein named, with directions to dispose of it, and with the proceeds to redeem certain fare-bills of the company; but the trust was never carried out, because the fare-bills were fully paid out of the earnings of the railroad. The bill charges that the sale at which the governor of Georgia purchased the property for the state was void:

(1) 'Because neither the legislature nor the governor had the     right to exclude the $600,000 series of indorsed bonds from      being used as so much cash, in the purchase of said road, at      their face value,-certainly they were entitled to be so used,      in the event of the exhaustion of the $1,950,000, which      themselves should have been received as cash at par.' (2)      'Because the governor was not authorized to bid on said      proper y for the state, and the state had no constitutional      power to make the purchase; or, if said sale is not void, it      is certainly voidable, because, under the statutory and      executed mortgages, the state is the trustee of the property      mortgaged for the benefit of the bondholders, and had no      right to buy at her own sale, as such trustee, without      incurring the risk of having said sale set aside at the      instance of any beneficiary under the trust, and your orator,      as such beneficiary, elects to set aside such sale.'

The suit proceed in part upon the general ground that the mortgages in question are mortgages to the governor of Georgia, as trustee for the bondholders, to secure the payment of bonds indorsed by the state, and not mortgages of indemnity to save the state harmless against liability incurred by her indorsement. If, however, the court should be of opinion that the mortgages are for the indemnity of the state, and that the sale of the railroad and purchase by the state are valid, then the complainant insists that both series of indorsed bonds stand upon an equal footing, and that the sums paid by the treasurer of the state, in taking up the coupons of the state bonds which have been exchanged for the $1,950,000 series of the Macon & Brunswick Railroad indorsed bonds, represent a portion of these proceeds, and should be paid pro rata upon both series of bonds; that when the legislature of Georgia appropriates any sum for the principal of the state bonds so exchanged, such sum should in like manner be divided pro rata among the holders of both series of indorsed bonds; and that the state bonds so exchanged should themselves be treated as the proceeds of the sale of the railroad, and divided pro rata among all the holders of both series of state indorsed bonds.

The case went off in the court below on demurrer and pleas which questioned the right of complainant to relief solely upon the ground that the suit was against the state, which was not, and could not be made, a party to the suit. It is true, as stated in the opinion of the court, that the property to which the suit relates is in the actual possession of some of the defendants, who assert no individual claim thereto, but are acting for and on behalf of the state. It is also true that the apparent legal title to the property embraced by the mortgages, other than such as was covered by the deed to Whittle, stands in the name of the state. But the suit proceeds upon the ground that Georgia, by her officers, is not rightfully in possession, and that no valid title passed to the state by virtue of the sale in question. The issue is distinctly made by the bill that the governor was not authorized to bid in the property, and that the state had no constitutional power to make the purchase. But the court fails to consider or pass upon these questions. If the court had found that the sale under which the state claimed was valid, and that the governor had legal authority to make the purchase in virtue of which the officers of the state claim to be rightfully in possession in her behalf; or had it been adjudged that the complainant, and those united in interest with him, had no lien or claim upon the property,-I should not, perhaps, have expressed any dissent, however much I may have differed with my brethren upon such questions. In other words, if the state was ascertained to be the lawful owner and entitled to the possession of the property in question, I should recognized the legal difficulties in the way of enforcing a lien thereon for any purpose in behalf of others; for the enforcement of such lien would, in the case supposed, necessarily disturb the rightful possession of the state, which could not be sued against her will, and without whose presence in the suit a final comprehensive decree could not be passed.

But such is not the case before us. The cause to be determined is that made by the bill. Its averments are admitted by the demurrer and are not controverted by the pleas. They show that the property, alth ugh held by officers of the state as her absolute property, is not rightfully so held. It is this aspect of the present decision which constrains me to dissent from the opinion of the court. If the citizen asserts a claim or lien upon property in the possession of officers of a state, the doors of the courts of justice, whether the suit be at law or in equity, ought not to be closed against him because those officers assert ownership in the state. The court should examine the case so far as to determine whether the state's title rests upon a legal foundation. If that title is found to be insufficient, and if the state, claiming its constitutional exemption from suit, refuses to appear in the suit as a party of record, the court ought to proceed to a final decree as between for complainant and those who are in possession of the property, leaving the state to assert her claim in any suit she might bring. This must be so, otherwise the citizen may be deprived of his property and denied his legal rights simply because the officers of a state take possession of and hold it for the state.

Such was the ruling of this court in U.S. v. Lee, 106 U.S. 196; [S.C.. 1 SUP. CT. REP. 240.] That was an action to recover the possession of what was formerly known as the Arlington estate. The defendants held possession of the property in no other capacity than as officers and agents of the United States. The attorney general of the United States appeared, and in due form gave the court to understand that the property in controversy was then, and for more than 10 years had been, held, occupied, and possessed by the United States, through their officers and agents, as public property for public purposes, in the exercise of their sovereign and constitutional powers, namely, as a military station, and as a national cemetery established for the burial of deceased soldiers and sailors of the Union. Upon these grounds it was contended that no action could be maintained which would disturb the control of those who were in possession for the United States. The contention, in behalf of the government, was that the United States could not be sued without their consent, and that the maintenance of a suit against their officers and agents for the purpose of ousting them from the possession of the Arlington cemetery, would bean encroachment upon the powers intrusted by the constitution to the legislative and executive departments. But to this argument the response of this court was: That under the American system of government the people, called elsewhere subjects, were sovereign; that their 'rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch;' that 'the citizen here knows no person, however, near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered;' that 'when he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right;' 'that no man in this country is so high that he is above the law; no officer of the law may set that law at defiance with impunity; all the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.' Upon examination of the doctrine that, except where congress has provided, the United States cannot be sued, we held that it had no application to officers and agents of the United States who, holding possession of property for public uses, are sued therefor by a person claiming to be the owner thereof or entitled thereto; but the lawfulness of that possession and the right or title of the United States to the property may, by a court of competent jurisdiction, be the subject-matter of the inquiry, and adjudged accordingly.

In the case just cited we uoted, with approval, the language of Chief Justice MARSHALL in U.S. v. Peters, 5 Cranch, 115, where, speaking for the court, he said that 'it certainly can never be alleged that a mere suggestion of title in a state to property in possession of an individual must arrest the proceedings of the court, and prevent them looking into the suggestion and examining the validity of the title.'

In U.S. v. Lee we also referred with approval to the decision in Osborn v. Bank of U.S. 9 Wheat. 738. That was a suit by the Bank of the United States against the auditor, treasurer, and other agents of the state of Ohio. The state, by its officers, levied a tax upon the bank, which it refused to pay. The state auditor seized the money of the bank in payment of the tax, and delivered it to the treasurer of the state. The latter held it when the suit was brought, and the right of the state to hold the money in discharge of its taxes was the fundamental question in the case. The state was not made a party, because by the constitution the judicial power of the United States did not extend to a suit against one of the United States by citizens of another state. It was conceded that the state was the real party in interest. That of which the bank complained were the acts of the defendants in their official character and done in obedience to the statutes of Ohio. The contention, therefore, was that as the state could not be sued, the suit must be dismissed. But to this the court, speaking by Chief Justice MARSHALL, replied:

'If the state of Ohio could have been made a party defendant,     it can scarcely be denied that this would be a strong case      for an injunction. The objection is that as the real party     cannot be brought before the court, a suit cannot be      sustained against the agents of that party; and cases have      been cited to show that a court of chancery will not make a      decree unless all those who are substantially interested be      made parties to the suit. This is certainly true where it is     in the power of the plaintiff to make them parties; but if      the person who is the real principal, the person who is the      true source of the mischief, by whose power and for whose      advantage it is done, be himself above the law, be exempt      from all judicial process, it would be subversive of the      best-established principles to say that the laws could not      afford the same remedies against the agent employed in doing      the wrong which they would afford against him could his      principal be joined in the suit.'

The relief asked was granted without the state becoming a party to the record.

In U.S. v. Lee the language just quoted from Osborn v. Bank of U.S. was distinctly approved, and the adjudged cases were held to show that the proposition, that when an individual is sued in regard to property which he holds in his capacity as an officer or agent of the United States, his possession cannot be disturbed when that fact is brought to the attention of the court, has been overruled and denied in every case where it has been necessary to decide it.

In my judgment it is impossible to reconcile the decision here with the ruling in the Arlington Case, 106 U.S. 196; [S.C.. 1 SUP. CT. REP. 240.] As I concurred in the opinion and judgment in the latter case, I am constrained to withhold my assent to the present decision. In U.S. v. Lee the judicial power was deemed ample to oust officers of the United States from the possession of property claimed by them, not as individuals, but as the representatives of their government. The possession of the government, by its officers, did not prevent the court from inquiring into the alleged title of the United States, and from awarding possession to those who claimed it as their property. But in the case before us the state of Georgia is allowed an exemption which the court did not feel at liberty to extend to the United States. The claim of complainant is that he and others, holding bonds indorsed by that state, have a lien upon property in the possession of certain individuals. The latter assert a valid, complete title and the right of exclusive possession in the state. But the complainant contends that the alleged title of the state is not good in law; that the sale, in virtue of which the state asserts title and holds possession, was not a valid sale; that in any event the state or her governor holds the title merely as a trustee for others. In effect, my brethren say that they will not determine these matters, and that because it appears that the state is a substantial party in interest, and that the defendants are only her officers in possession in her behalf, the complainant and those united in interest with him must to out of court. It seems to me that the grounds upon which the court proceeds would have led to a different conclusion, not only in U.S. v. Lee, but in all the prior decisions therein referred to as authority for the judgment in that case. The court say that the judgment in U.S. v. Lee did not conclude the United States. So it may be said here, that no decree rendered would have concluded the state of Georgia had she declined to appear in the suit. But as, in the former case, the court did not decline to give relief because of the mere assertion of title in the United States, so in this case the mere assertion of title in the state should not have prevented an adjudication as to complainants' claim. Had the court ascertained that the property in contest was in the rightful possession and control of the state then, but not before, the question would have arisen whether the bill must not be dismissed, so long as the state refused to become a party to the suit.

The court in its opinion reviews numerous other cases, and states the principles upon which, in its judgment, they were decided. I content myself with saying that the correctness of that review is not conceded. Limitations and qualifications are now placed upon former decisions, which their language, I submit, does not justify. A doubt is now expressed as to whether Davis v. Gray, 16 Wall. 215, did not go beyond the verge of sound doctrine; this, notwithstanding the decision in the Arlington Case was made to rest largely upon davis v. Gray. In the Arlington Case we quoted from Davis v. Gray, a suit in equity, the following statement of the doctrine applicable to suits in the determination of which a state is interested.

'Where the state is concerned, the state should be made a     party, if it can be done. That it cannot be done, is a     sufficient reason for the omission to do it, and the court      may proceed to decree against the officers of the state in      all respects as if the state were party to the record. In     deciding who are parties to the suit, the court will not look      beyond the record. Making a state officer a party does not     make the state a party, although her law may have prompted      his action, and the state may stand behind him as a real      party in interest. A state can be made a party only by     shaping the bill expressly with that view, as where      individuals or corporations are intended to be put in that      relation to the case.'

The only comment made in the Arlington Case upon this language was, 'that though not prepared to say now that the court can proceed against the officer 'in all respects' as if the state were a party, this may be taken as intimating in a general way the views of the court at that time.'

But I especially dissent from the statement by the court of the question involved in Louisiana v. Jumel, 107 U.S. 711; [S.C.. 2 SUP. CT. REP. 128.] Had the court there denied relief upon the ground that granting it would be 'to take charge of the treasury of the state, and, seizing the hands of the auditor and treasurer, to make distribution of the funds found in treasury in the manner which the court might think just,' I should not, in that case, have expressed and dissent from the action of my brethren. I am unwilling by silence to accede to the sugge tion that the substantial relief asked in Louisiana v. Jumel could not have been granted without taking charge of the treasury of the state. There were in the hands of the treasurer of Louisiana money raised by taxation under certain constitutional and statutory provisions. It was money which, by contract with creditors of the state, was set apart and appropriated to the payment of the interest due on designated bonds of the state. The records of the state treasurer's office showed the exact amount obtained by taxation for that purpose. It was in the power of the officers of the state to have paid that money out in discharge of her contract obligations without the slightest confusion in the accounts of the state treasurer. The contrary was not claimed by those officers. But the treasurer and other officers declined to apply the money in their hands for the purpose to which it had been dedicated. They rested their refusal upon an ordinance passed by the state, which was conceded, on all hands, to be a palpable violation of the constitution of the United States, and therefore null and void. As a reason for not discharging a plain official duty, imposed by law, those officers referred to a void provision in the constitution of Louisiana, and it was held that there was no power in the courts of the Union to compel the performance of that duty. The court declined to give any relief against the state officers of Louisiana, partly upon the ground that the relief asked 'will require the officers, against whom the process is issued, to act contrary to the positive orders of the supreme political power of the state, whose creatures they are, and to which they are ultimately responsible in law for what they do.' 'They must,' proceeded this court, 'use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation, when the same power has declared that it shall not be done.' Thus, the constitution of the United States, which is the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding, was, as I then thought and still think, subordinated to 'the supreme political power' of the state of Louisiana.

My brethren declare it to be impossible to compel a state to pay its debts by judicial process. As no decree was asked against the state on the bonds held by complainant, and since the state was not made a party to the record, it is difficult to perceive why it was deemed necessary to make that declaration. But if thereby it was meant that no state can be sued as a party to the record, and no judgment rendered against it as a party defendant, the proposition will not be disputed. I submit, however, that under our system of government the citizen may demand that the courts shall determine his claim to, or his alleged lien upon, property, by whatever individuals that property may be held, and that he cannot be denied an adjudication and enforcement of that claim merely because the individuals sued assert right of possession and title in the government they represent. The hardship and injustice of a different rule is well illustrated in the present case, especially as respects the property embraced by the deed of trust to Whittle. The bill alleges, and the demurrer admits, that that property was not covered by the statutory and executed mortgages upon which the state rests its claim. If these averments are true, the state of Georgia has no pretense of right, by its officers, to hold that property. But my brethren adjudge-if I do not misapprehend the opinion-that the assertion by defendants of title in the state is sufficient to preclude judicial inquiry into the rightfulness of their possession or the validity of the state's title.

My brethren say that 'on the hypothesis that the foreclosure by the governor was valid, the trust asserted by plaintiff is vested in the state as trustee, and not in any of the officers said.' But may not the court inquire whether that hypothesis be sound? Must it be assumed to be sound because the officers of the state so declare? Besides, if the alleged trust was vested in the state as trustee,-if, as claimed by complainant, the state became the trustee of the property mortgaged for the benefit of the bondholders,-may not the court proceed to a decree as between the parties to the record? If the trustee cannot be made a party, and refuses to appear, the court ought not, for that reason, to permit the interests of others to be sacrificed. If the officers of the United States may be deprived of the possession of property held by them for the government, but the title to which is judicially ascertained, in an action against them only, not to be legally in the United States, I do not see why the courts may not, at the suit of the citizen, enforce their claims upon property as against officers of a state who may be judicially ascertained, in a suit against them, not to be in rightful possession for such state. Such relief would not conclude the rights of the state, but would leave to her the privilege of asserting her claim in any court of competent jurisdiction.

I am authorized by Mr. Justice FIELD to say that he concurs in this opinion.


text: Talk:Cunningham v. Macon and Brunswick Railroad Company/Opinion of the Court

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


text:
Leroux v. Hudson

The facts of this case, so far as they are material, are as follows: On the fourteenth of March, 1878, proceedings in involuntary bankruptcy were instituted in the district court of the United States for the eastern district of Michigan, against Samuel Schott and Philip Feibish, composing the firm of Schott & Feibish. On the same day a warrant was issued by the court to the marshal, under section 5024 of the Revised Statutes, commanding him 'to take possession, provisionally, of all the property and effects of the debtors.' The petitioning creditors gave a bond of indemnity to the marshal, under order No. 13 of the general orders in bankruptcy, and required him to seize, under the warrant, as the property of the debtors, certain goods in the hands of Joseph P. Leroux and Max Schott, composing the firm of Leroux & Co., then in the store of the latter at Bay City, Bay county, Michigan, which goods, the creditors alleged, had been transferred to J. Leroux & Co. by Samuel Schott and Feibish, in violation of the bankruptcy law. The seizure was made on the twenty-ninth of March by the marshal, Salmon S. Matthews, assisted by his deputies, Myron Bunnell and Horace Becker. An adjudication of bankruptcy was made against Samuel Schott and Feibish on the thirteenth of April. On the twenty-second of April, J. Leroux & Co. commenced an action of trespass in the circuit court for Bay county, Michigan, against Matthews, Bunnell, and Becker, to recover $25,000 damages for the acts of the defendants on the twenty-ninth of March, in breaking and entering the store at Bay City and injuring the same, and taking therefrom and carrying away goods of the value of $25,000, the property of the plaintiffs, and converting the same to their own use, and preventing the plaintiffs, for three days, from carrying on their lawful business in the store. On the sixth of May, Joseph L. Hudson was appointed assignee in bankruptcy of Samuel Schott and Feibish, and became duly vested with that office. Thereupon the marshal delivered the goods to the assignee, and the latter took possession of them as part of the estate of the bankrupts. The defendants in the trespass suit appeared therein by attorney, and demanded a trial, and served a notice of defense, setting up the issuing of the provisional warrant, the seizure of the goods thereunder, the fact that they were the goods of Samuel Schott and Feibish, the adjudication in bankruptcy, the appointment of an assignee, and the fact that the goods had been turned over by the marshal to the assignee, and were held by him as a part of the estate of the bankrupts. At a term of the state circuit court, in September following, on application of the defendants, the trial of the suit was postponed to the next term, on affidavit of the illness and absence of an important witness.

In October, 1878, Hudson, (the assignee,) Matthews, (the marshal,) and Bunnell and Becker, filed a bill in equity, in the circuit court of the United States for the eastern district of Michigan, against Leroux and Max Schott, setting forth the substance of the above facts, and alleging that the goods had been sold by the assignee under the order of the bankruptcy court; that he was holding the proceeds to be applied as a part of the estate of the bankrupts, if the title should be found to be in the assignee, or he should be entitled to the said assets as assignee, and to distribute the same as part of the estate; and that he had the proceeds in hand awaiting the determination of that question. The bill also alleged that the goods were transferred by the bankrupts, when insolvent, to Leroux and Max Schott, with a view to prevent them from coming to the assignee in bankruptcy, and a large part of them within three months before the filing of the petition in bankruptcy, and when Leroux and Max Schott knew that the transfer was made with a view to prevent the goods from going to the assignee, and to prevent them from being distributed under the bankruptcy act, to defeat its object, and to injure and delay its operation and evade its provisions; that the transfers of the goods were therefore void, and the title to them became vested in the assignee; that he claimed that by reason of the suit in the state court he was unable to proceed with the settlement of the estate of the bankrupts; that the funds so received by him for the goods must be kept until the question in reference to their title should be determined; and that the question in regard to the fraud on the bankruptcy act, so attempted, could not be litigated and determined in the state court. The bill then set forth various matters intended to show the existence of such fraud, and prayed that Leroux and Max Schott be enjoined from further prosecuting their suit, or any other suit in a state court, for damages in regard to the goods seized by the marshal, and that if they should claim any interest therein they should proceed to establish their claim in the circuit court of the United States or in the district court in bankruptcy. It also prayed that any sale or transfer of the goods from the bankrupts to Leroux and Max Schott be set aside and decreed to be in violation of the bankruptcy act, and that the goods be becreed to be a part of the estate of the bankrupts, and that the title of the assignee to the goods, or the funds arising therefrom, be quieted and decreed to be perfected in him.

In November following, on notice and after a hearing, the court granted a preliminary injunction in accordance with the prayer of the bill. Each of the defendants demurred separately to the bill for want of jurisdiction and want of equity. The demurrers were overruled, on a hearing. Each of the defendants then answered separately. The answers maintained the right of the defendants to proceed with the suit in the state court, and averred that they owned the goods at the time of the seizure, and denied the equity of the bill. Proofs were taken in the cause on both sides. At the close of the plaintiffs' proofs, the defendants entered on the record a protest against the jurisdiction of the court, with a statement that, by bringing the suit in the state court, they had not sought, in any manner, to interfere with the goods seized, but had waived the question of interference with the goods. A decree was entered adjudging that the goods were, at the time of their seizure, a part of the estate of the bankrupts; that the title thereto vested in the assignee; that the sale or transfer of them to the defendants was in violation of the bankruptcy act, and be set aside; that the title of the assignee to the goods and their proceeds be quieted and declared to be perfect; and that the defendants be perpetually enjoined according to the prayer of the bill. From this decree the defendants have appealed.

Don M. Dickinson, for appellants.

[Argument of Counsel from pages 472-473 intentionally omitted]

W. F. Cogswell, for appellees.

MR. Justice Blatchford

title: Leroux v. Hudson


text: Talk:Leroux v. Hudson

title: Talk:Leroux v. Hudson


text:
Leroux v. Hudson/Opinion of the Court

This suit divides itself into two branches-the case of the assignee; and that of the marshal and his deputies. The assignee was not a party to the trespass suit. The plaintiffs in that suit, abandoning all pursuit of the goods and all action against the assignee, brought and continued their suit for damages against the marshal and his deputies. They did not disturb the possession of the goods in the assignee, or claim the proceeds of the goods. Although the bill states that the assignee, on applying to the bankruptcy court for an order to sell the goods, made known to it the facts as to the claim of Leroux and Max Schott thereto, it is not averred that any notice was given to them of the intention to sell or of the sale. It is provided as follows by section 5663 of the Revised Statutes:

'Whenever it appears to the satisfaction of the bankruptcy     court that the title to any portion of an estate, real or      personal, which was has come into the possession of the      assignee, or which is claimed by him, is in dispute, the      court may, upon the petition of the assignee, and after such      notice to the claimant, his agent or attorney, as the court      shall deem reasonable, order it to be sold under the      direction of the assignee, who shall hold the funds received      in place of the estate disposed of; and the proceeds of the      sale shall be considered the measure of the value of the      property, in any suit or controversy between the parties, in      any court. But this provision shall not prevent the recovery     of the property from the possession of the assignee by any      proper action commenced at any time before the court orders      the sale.'

The failure to give any notice to Leroux and Max Schott of the application for the order to sell the goods, although the facts as to their claim were laid before the bankruptcy court, and the fact that no suit was brought against the assignee to recover the possession of the goods from him, are evidence that the bankruptcy court and the assignee did not regard, and could not regard, the case as one where, under section 5063, the title to the goods was in dispute. It was not in dispute as between Leroux and Max Schott of the one part and the assignee of the other part. The former abandoned the goods, and all claim to them or to their proceeds, and the assignee acted on that view in selling the goods without notice. They relied solely on their suit in trespass, and the defendants in that suit relied for protection, in case of adverse result, not on the goods or their proceeds, but on the bond of indemnity which the petitioning creditors had given to the marshal. Under these circumstances, after pleading in the suit in the state court, and procuring a postponement of the trial, the defendants in that suit and the assignee joined in bringing the bill in equity. Had the circuit court of the United States any cognizance of the suit? There was no common interest between the assignee and the other plaintiffs. The assignee was not sued in the state court. When the suit in equity was brought, the marshal had no interest in the goods, and no right to rely on them or their proceeds for idemnity, and no right to look to the assignee for protection. The marshal turned the goods over to the assignee, and did so voluntarily, so far as appears, relying on the bond of indemnity as his protection, and substituting that in place of a retention of the goods, when he might well have insisted on retaining them, if Leroux and Max Schott still claimed title to them, inasmuch as the suit in trespass was brought before the goods were turned over to the assignee.

An assignee in bankruptcy has, by section 5129, the right, in case of a transfer of property to a person not a creditor of the bankrupt, in violation of that section, to 'recover the property or the value thereof, as assets of the bankrupt.' Here the assignee had the property, and there was no occasion for him to bring a suit to recover it.

By section 4979 a circuit court of the United States has jurisdiction of a suit 'at law or in equity brought by an assignee in bankruptcy against any person claiming an adverse interest, or by any such person against an assignee, touching any property or rights of the bankrupt transferable to or vested in the assignee.' The jurisdiction invoked by the assignee in this case cannot be maintained under section 4979. It does not appear by the bill or the proofs that the defendants claim an interest in the proceeds of the goods adverse to the interest which the assignee claims in such proceeds. When the bill was filed the goods had been sold and were represented by their proceeds in the hands of the assignee. The only interest which the assignee then had touching the goods or in their proceeds was his claim to own those proceeds as assignee. No interest could be adverse to such interest of his unless it was another claim to own or receive those proceeds. The defendants made no such claim. The bill does not allege that they did, but it and the proofs show that from the time they brought the trespass suit they never disputed the right of the assignee to deal with the goods and their proceeds as part of the assets of the estate. Nor is the bill filed to remove a cloud on the title to real estate, or to set aside written instruments of title which might interpose obstacles to the rights of the assignee in the goods or their proceeds.

It is enacted by section 630 of the Revised Statutes 'that the circuit court shall have jurisdiction in matters in bankruptcy, to be exercised within the limits and in the manner provided by law.' This refers to the limitations in section 4979. As the bill avers that all the parties are citizens of Michigan, the jurisdiction of the circuit court in this case must be given by the bankruptcy statute or it does not exist. We are of opinion, upon full consideration, that it is not so given, notwithstanding what was said by this court in Ex parte Schwab, 98 U.S. 240. It may, moreover, be said, that if there were jurisdiction by the citizenship of the parties a bill such as this, by the assignee in bankruptcy, to obtain such relief as he asked in respect to his own rights, would not lie, he being in possession, and his right to assert possession and ownership, and to control and dispose of the property and its proceeds, not being questioned or threatened.

As regards the marshal and his deputies, apart from the assignee, there is nothing in the bankruptcy statute which authorizes them to invoke the action of the circuit court for any relief by injunction in respect to the suit for trespass. As the assignee had no right conferred by that statute to bring the suit in equity in respect to any claim of his own, he had no right as assignee to bring it in respect to any claim of his co-plaintiffs, nor had all together any right conferred by that statute to bring it. The relief sought by injunction depends wholly, as the bill is framed, on the right of the assignee, as such, to maintain the suit in respect to his own case.

If the case as to the marshal and his deputies were one of jurisdiction by citizenship of the parties, it would fall within the principles laid down by this court in Buck v. Colbath, 3 Wall. 334. The provisional warrant being one merely commanding the marshal to seize the property of the debtors, it was for the marshal to determine for himself whether the goods seized were legally liable to seizure under the warrant, and the circuit court could afford him no protection against the consequences of an erroneous exercise of his judgment in that determination. He was liable to suit in any court of competent jurisdiction, for injuries growing out of his mistakes. The state court in which the suit for trespass was brought was such a court, and that suit was an appropriate suit. The parties bringing it were entitled to proceed with that suit in that forum. As was said in Buck v. Colbath, there was nothing in the mere fact that the provisional warrant issued from a federal court, 'to prevent the marshal from being sued in a state court, in trespass, for his own tort, in levying it upon the property of a man against whom the writ did not run, and on property which was not liable to it.' This view was reaffirmed in Sharpe v. Doyle, 102 U.S. 686, and was there applied to a seizure under a provisional warrant in bankruptcy like that in the present case.

We have limited our decision to the precise questions presented in this case, without attempting to define the cases in which an assignee in bankruptcy can maintain a suit under section 5129 or under section 4979, or to specify what relief by injunction can be granted to him under the bankruptcy act, in a proper case.

title: Leroux v. Hudson/Opinion of the Court


text: Talk:Leroux v. Hudson/Opinion of the Court


text:
Schott v. Hudson

Don M. Dickinson, for appellant.

H. C. Wisner and W. F. Cogswell, for appellees.

BLATCHFORD, J.

title: Schott v. Hudson


text: Talk:Schott v. Hudson

title: Talk:Schott v. Hudson


text:
Schott v. Hudson/Opinion of the Court

The facts in this case differ from those in Leroux v. Hudson, herewith decided, [ante, 309,] as set forth in the opinion in that case, only in the following immaterial respects: The goods seized were in the hands of Max Schott, in his store at East Saginaw, Saginaw county, Michigan, and had been transferred to him by the debtors. The marshal, Matthews, assisted by John E. Wells, a deputy, seized them on March 29, 1878. Max Schott, on the sixth of April, commenced an action of trespass in the circuit court for Saginaw county, Michigan, against Matthews and Wells, to recover $25,000 damages for the acts of the defendants in breaking and entering the store at East Saginaw, and taking therefrom and carrying away goods of the plaintiffs of the value of $20,000, and converting the same to their own use, and preventing the plaintiffs from carrying on their lawful business in the store. After the defendants in the trespass suit had appeared therein by attorney and demanded a trial, and given the like notice of defense as was given in the suit for trespass brought by J. Leroux & Co., nothing further was done in the suit. In October, 1878, Hudson, (the assignee,) Matthews, (the marshal,) and Wells filed a bill in equity in the circuit court of the United States for the eastern disirict of Michigan against Max Schott, making the like allegations, mutatis mutandis, as to the goods taken from Max Schott, as were made in the bill filed by J. Leroux & Co. in regard to the goods taken from them, and containing a like prayer for relief and for an injunction. Like proceedings took place, except that a demurrer was embodied in the answer instead of being filed separately. The answer was of a like character, the proofs and protest were identical, and a like decree was entered, from which the defendant appealed.

The decree of the circuit court is reversed, and the cause is remanded to that court, with direction to dismiss the bill.

The same questions are involved as in Leroux v. Hudson, the facts are substantially the same, and the same conclusions are reached. The decree of the circuit court is reversed, and the cause is remanded to that court, with direction to dismiss the bill.

title: Schott v. Hudson/Opinion of the Court


text: Talk:Schott v. Hudson/Opinion of the Court


text:
Randall v. Baltimore O. Railroad

This is an action against a railroad corporation, by a brakeman in its employ, for personal injuries received, while working a switch, by being struck by one of its locomotive engines.

The declaration, in seven different counts, alleged as grounds of action that the defendant negligently constructed and kept its tracks and switches in a defective and dangerous condition; that the defendant, by one of its agents and servants, who was at the time unskillful, negligent, and unfit to perform the business and employment that he was engaged by the defendant to perform, and who was engaged in a service for the defendant other and different from the service in which the plaintiff was engaged, and whose negligence, unskillfulness, and unfitness were known to the defendant, negligently propelled one of its locomotive engines against and over the plaintiff; that this was done without sounding any whistle or ringing any bell, as required by the laws of the state of West Virginia; and that the defendant neglected proper precautions in the selection and employment of its agents and servants.

A statute of West Virginia provides that 'a bell or steam-whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman at the distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling until such street or highway is reached,' under a penalty of not exceeding $100 for each neglect; and that 'the corporation owning the railroad shall be liable to any person injured for all damages sustained by reason of such neglect.' St. W. Va. 1873, c. 88, § 31.

As we understand the evidence introduced at the trial, it conclusively proved the following facts: The injury occurred at night, at a place where, as the plaintiff himself testified, 'there was one network of tracks,' in the defendant's railroad yard, near the junction of a branch road with the main road, and about 10 rods from a highway crossing. The plaintiff had previously been employed on another part of the road. On the night in question, in the performance of his duty as a brakeman on a freight train, he unlocked a switch which enabled his train to pass from one track to another; and he was stooping down, with his lantern on the ground beside him, to unlock the ball of a second switch to let the engine of his train pass to a third track, when he was struck and injured by the tender of another freight engine, in no way connected with his train, backing down on the second track. The tender projected 10 inches beyond the rail. The distance between the adjacent rails of the second and third tracks was about six feet. The second switch was a ground switch of a kind in common use, the lock of which was in the center of the space between the two tracks; and the hendle of which was about two feet long, and when lying flat extended towards either track, and when thrown one way opened the switch, and when thrown the other way closed it. The switch could be worked efficiently and safely by a man standing midway between the two tracks, using reasonable care. It could not be safely worked by standing at the end of the handle while an engine was coming on the track next that end. Upright switches could not be used, at a place where the tracks were so near together, without seriously interfering with the moving and management of the trains. The plaintiff testified that he had never worked a ground switch before, and that the first switch was an upright switch. But he admitted on cross-examination that the two kinds of switches were unlocked in the same manner, and the other evidence established beyond doubt that the first switch was also a ground switch. A single witness, who had been a brakeman, called for the plaintiff, in answer to a question, often repeated, of his counsel, whether that was a safe and proper switch to be used at that point, testified that he could not say it was a very safe place at that time there; that he thought that was not a proper kind of switch, and an upright switch would have been more convenient to handle; that he did not think it was a very safe ball there; that he thought it was not a safe ball there; and that it could not be unlocked without danger while an engine or train was coming upon the other track. The engine which struck the plaintiff was being driven at a speed of about 12 miles an hour, by an engineman in the defendant's employ, and there was evidence tending to show that it had no light except the head-light, and no bell, and that its whistle was not sounded. There was no evidence that the tracks were improperly constructed, or that the engineman was unfit for his duty. The other grounds of action relied on were, improper construction and arrangement of the switch; negligence of the defendant in running its engine, by an unskillful and negligent engineman, alleged to have been engaged in a different service for the defendant from that in which the plaintiff was engaged; and omission to comply with the requirements of the statute of West Virginia. At the close of the whole evidence (of which all that is material is above stated) the court directed the jury to return a verdict for the defendant, because the evidence was such that if a verdict should be returned for the plaintiff the court would be compelled to set it aside. A verdict for the defendant was accordingly returned, and the plaintiff sued out this writ of error. B. B. Dovener, for plaintiff in error.

John K. Cowen and C. Boggess, for defendant in error.

GRAY, J.

title: Randall v. Baltimore O. Railroad


text: Talk:Randall v. Baltimore O. Railroad

title: Talk:Randall v. Baltimore O. Railroad


text:
Randall v. Baltimore O. Railroad/Opinion of the Court

1. It is the settled law of this court that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Pleasants v. Fant, 22 Wall. 116; Herbert v. Butler, 97 U.S. 319; Bowditch v. Boston, 101 U.S. 16; Griggs v. Houston, 104 U.S. 553. And it has recently been decided by the house of lords, upon careful consideration of the previous cases in England, that it is for the judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether from those facts, when submitted to them, negligence ought to be inferred. ''Metropolitan Ry. Co. v. Jackson'', 3 App. Cas. 193.

Tried by this test, there was no sufficient evidence of any negligence on the part of the railroad company, in the construction and arrangement of the switch, to warrant a verdict for the plaintiff on that ground. The testimony of the plaintiff and of his witness was too slight. A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad corporation, in any work connected with the making up or moving of trains, assumes the risks of that condition of things. Although it was night, and the plaintiff had not been in this yard before, his lantern afforded the means of perceiving the arrangement of the switch and the position of the adjacent tracks. The switch was of a form in common use, and was, to say the least, quite as fit for its place and purpose as an upright switch would have been. It could have been safely and efficiently worked by standing opposite the lock, midway between the tracks, using reasonable care; and it was unnecessary, in order to work it, to stand, as the plaintiff did, at the end of the handle, next the adjacent track.

2. The general rule of law is now firmly established, that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow-servants in the course of the employment. This court has not hitherto had occasion to decide who are fellow-servants, within the rule. In Packet Co. v. McCue, 17 Wall. 508, and in Railroad Co. v. Fort, Id. 553, the plaintiff maintained his action because at the time of the injury he was not acting under his contract of service with the defendant. In the one case, he had wholly ceased to be the defendant's servant; in the other, being a minor, he was performing, by direction of his superior, work outside of and disconnected with the contract which his father had made for him with the defendant. In Hough v. ''Ry. Co. 100 U.S. 213, and in Wabash Ry. Co. v. McDaniels'', 107 U.S. 454, [S.C.. 2 SUP. CT. REP. 932,] the action was for the fault of the master, either in providing an unsafe engine, or in employing unfit servants.

Nor is it necessary, for the purposes of this case, to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh the conflicting views which have prevailed in the courts of the several states; because persons standing in such a relation to one another as did this plaintiff and the engineman of the other train, are fellow-servants, according to the very great preponderance of judicial authority in this country, as well as the uniform course of decision in the house of lords, and in the English and Irish courts, as is clearly shown by the cases cited in the margin. They are employed and paid by the same master. The duties of the two bring them to work at the same place, at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate common object-the moving of the trains. Neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence against the corporation, their common master.

The only cases cited by the plaintiff, which have any tendency to support the opposite conclusion, are the decisions of the supreme court of Wisconsin in Chamberlain v. Milwaukee & M. R. R. Co. 11 Wis. 248, and of the supreme court of Tennessee in Haynes v. East Tennessee & G. R. Co. 3 Cold. 222, each of which wholly rejects the doctrine of the master's exemption from liability to one servant for the negligence of another, and the first of which has been overruled by the later cases in the same state. This action cannot therefore be maintained for the negligence of the engineman in running his engine too fast, or in not giving due notice of its approach.

3. The statute of West Virginia, on which the plaintiff relies, has no application to this case. There is no evidence that the engine which struck the plaintiff was about to cross a highway; and the main, if not the sole, object of the statute evidently was to protect travelers on the highway. O'Donnell v. Providence & W. R. Co. 6 R. I. 211; Harty v. ''Cent. R. Co.'' 42 N. Y. 468. It may, perhaps, include passengers on the trains, or strangers, not trespassers, on the line of the road. But it does not supersede the general rule of law which exempts the corporation from liability to its own servants for the fault of their fellow-servants.

Judgment affirmed.


text: Talk:Randall v. Baltimore O. Railroad/Opinion of the Court


text:
Ellis v. Davis

[Syllabus from pages 485-486 intentionally omitted]

Charles C. Leeds and William Reed Mills, for appellants.

J. D. McPherson and C. Carlisle, for appellee.

MATTHEWS, J.

title: Ellis v. Davis


text: Talk:Ellis v. Davis

title: Talk:Ellis v. Davis