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Mathews v. McStea

ERROR to the Court of Common Pleas of New York.

On motion to dismiss the writ for want of jurisdiction. The case was thus:

On the 15th of April and 19th of April, 1861, the President, by his proclamation, declared that insurrection existed in Louisiana and certain other Southern States, and that the ports of Louisiana, with those of the said States, were under blockade.

On the 23d of the same April, a firm composed of three persons, Mathews, Brander, and Chambliss-of whom Mathews resided in New York and the other two in New Orleans-accepted at New Orleans, a draft drawn on them for $8050, payable twelve months after date.

On the 13th of July, 1861, an act of Congress was passed authorizing the President to issue a proclamation declaring the inhabitants of any State where insurrection existed in a state of insurrection against the United States, and the act declared that thereupon 'all commercial intercourse by and between the same, and the citizens thereof, and the citizens of the rest of the United States, shall cease and be unlawful, so long as such condition of hostilities shall continue.' And on the 16th of August, 1861, the President did issue his proclamation, declaring Louisiana, with other States, in a state of insurrection against the United States, and forbidding all commercial intercourse with the inhabitants of such States.

On the 26th of February, 1862 (after this act and proclamation), other drafts were drawn and accepted in the same way.

All the drafts came before maturity into the hands of one McStea, and he brought suit in the court below on the whole of them. Mathews alone appeared. He set up the defence that at the time of the acceptances war had been declared and existed between that part of the United States in which he resided and that in which his other partners resided, by virtue of which the partnership had been dissolved before these acceptances were made, and that the contracts as to him were, therefore, void. The court decided against him as to the acceptance made on the 23d of April, and in his favor as to the others. He then took the case into the Court of Appeals; and there, upon the acceptance of the 23d of April, for $8050, raised the same question as before, and no other; contending that the proclamations of blockade of the 15th and 19th of April, by the President, had the effect to dissolve the partnership, and that by reason of them the act of acceptance was void as to him.

The Court of Appeals in its opinion discussed the question at what stage of the civil war the rule against commercial intercourse with the enemy took effect so as to dissolve the contract of partnership. Conceding that under the decision in The Prize Cases, the war existed for some purposes prior to that act, the court still held that it did not become, until recognized by the act of Congress of July 13th, 1861, of such a character as to suspend commercial intercourse, and, therefore, that it had no effect upon the acceptance of the 23d of April, 1861. As to the other acceptances it admitted that they had been rightly disposed of in the court below. Accordingly the question abovementioned as raised by Mathews-the only question in the case, as heard and decided in the Court of Appeals,-was decided against him.

The record having been remitted according to the practice of New York from the Court of Appeals to the court where the suit was brought, in order that the judgment might be carried into effect, Mathews now brought the case here, as within the second section of the act of February 5th, 1867, set forth supra, p. 592, 593, right-hand column.

Mr. A. F. Smith, in support of the motion to dismiss:

It cannot be pretended that the case is within the first provision of the act, for the final judgment was not against the validity of any treaty or statute of, or authority exercised under the United States.

Nor is it within the second, for the final judgment was not in favor of the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States.

Nor is it within that part of the third which speaks of 'a commission held or authority exercised under the United States:' for Mathews held no such commission and exercised no such authority. There accordingly only remains for consideration the point whether he claimed in the State court 'any title, right, privilege, or immunity under the Constitution, or any treaty or statute of the United States,' against which the decision was. And it is clear that he did not. His position was that the war of the rebellion dissolved the partnership, on or before April 23d, 1861, and that he was not, therefore, bound by the acceptance of his firm on that day. He asserted this as a general principle. He did not assert that any statute of the United States made it so; nor that his liability was affected either way by the non-intercourse act of July 13th, 1861, passed nearly three months after the acceptance, and under which the non-intercourse proclamation was issued on August 16th of that year.

Messrs. J. Sherwood and W. M. Evarts, contra:

I. Mathews, it is plain, insisted, in the State court, that under the act of July 13th, 1861, the proclamations of the President of April 15th, 1861, and April 19th, 1861, were approved, legalized, and made valid.

Under these proclamations he claimed immunity from liability as a copartner in a firm, which he insisted was dissolved on the day of the date of the proclamation of blockade, four days before the date of the acceptance made by the firm.

He did then claim an immunity under that statute, and the decision in the Court of Appeals was against that immunity.

II. In the decision of the case there was drawn in question the construction of clauses of the Constitution.

The clauses giving to Congress the power to declare war, and defining the authority and powers of the executive, were necessarily considered in order to determine whether the President, in the absence of Congress, could initiate war or repel war brought on by foreign powers or enemies at home.

The questions actually and necessarily determined were:

1. Whether the war of the rebellion in the beginning was a war carrying with it the consequences of international war.

2. Whether by the war, beginning as it did, commercial intercourse was, in the month of April, 1861, suspended.

These were certainly Federal questions requiring the most enlarged and thoughtful examination of the Constitution of the United States.

Mr. Justice MILLER delivered the opinion of the court.

title: Mathews v. McStea


text: Talk:Mathews v. McStea

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

title: Talk:Mathews v. McStea


text:
Mathews v. McStea/Opinion of the Court

We are of opinion that the only question made and decided in this case against plaintiff in error was the sufficiency of the acts of the President to inaugurate a war which would render invalid this contract, and that this is one of the questions embraced by the act of February 5th, 1867.

The motion to dismiss is, therefore,

OVERRULED.

title: Mathews v. McStea/Opinion of the Court


text: Talk:Mathews v. McStea/Opinion of the Court


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Cadle v. Baker

ERROR to the District Court for the Middle District of Alabama; the case being thus:

The forty-sixth and forty-seventh sections of the National Currency Act provide that if any of the banks which it authorizes fail to redeem their notes, the holder may have the notes protested; and that notice of the protest shall be forwarded to the Comptroller of the Currency; that upon receiving notice of such failure to redeem, the comptroller shall send a special agent to ascertain the facts; and if, on the report of such agent, he shall be satisfied of the failure, he shall declare the securities of the bank pledged for redemption of the notes forfeited, and give notice to the noteholders to present them to him for payment.

The fiftieth section enacts that on becoming satisfied of the failure 'as specified in this act,' he may also appoint a receiver, who, under his direction, shall take possession of the assets of the bank and collect all debts due to it, &c.

The same section provides, however, that if the bank denies that it has failed to redeem its notes, it may apply to the nearest District Court or Territorial court to enjoin further proceedings in the premises, when, if such court, on hearing the case, shall be satisfied that there has been no failure, it may enjoin both comptroller and receiver from all further proceedings on account of such alleged refusal.

This statute being in force, the Comptroller of the Currency appointed one Cadle receiver of the First National Bank of Selma, and the said Cadle, as such receiver, brought suit in the court below against a certain Baker, to recover the amount due upon a bill of exchange, drawn by Cadle and indorsed to the bank, and held as part of its assets at the time when Cadle was appointed receiver. The declaration contained an averment in substance that the Comptroller of the Currency having become satisfied, 'as specified in the Banking Act,' that the bank had refused to pay its notes, did appoint the plaintiff 'a receiver as provided by the fiftieth section of the act,' and that he had qualified under his appointment and entered upon the performance of his duties. The defendants demurred to the declaration, and, in effect, assigned for cause that it was not specifically averred that each and all of the several things had been done which were provided for in sections forty-six and forty-seven, in order to furnish the evidence to satisfy the comptroller that the bank had refused to pay its notes and was in default. The court below sustained the demurrer and gave judgment for the defendant. The receiver now brought the case here.

Mr. P. Phillips, for the plaintiff in error; no opposing counsel.

The CHIEF JUSTICE delivered the opinion of the court.

title: Cadle v. Baker


text: Talk:Cadle v. Baker

title: Talk:Cadle v. Baker


text:
Cadle v. Baker/Opinion of the Court

We think such averments as the defendant alleges to be necessary and the want of which he has assigned for cause of demurrer, were not necessary. The debtors of a bank, when sued by a receiver, cannot inquire into the legality of his appointment. It is sufficient for the purposes of such a suit that he has been appointed and is receiver in fact. As to debtors, the action of the comptroller in making the appointment is conclusive until set aside on the application of the bank. The bank may move in that behalf, but the debtor cannot. Section fifty makes express provision for a contest by the bank.

The court below erred in sustaining the demurrer, and for that reason the judgment is reversed and the cause remanded with instructions to OVERRULE the DEMURRER to the declaration and

PROCEED ACCORDINGLY.

title: Cadle v. Baker/Opinion of the Court


text: Talk:Cadle v. Baker/Opinion of the Court


text: Treat v. Jemison

title: Treat v. Jemison


text: Talk:Treat v. Jemison

title: Talk:Treat v. Jemison


text:
Treat v. Jemison/Opinion of the Court

ERROR to the Circuit Court for the District of California.

Rule twenty-one of this court provides that the brief of the counsel for the plaintiff in error shall contain, 'in the order here stated,'--

1. A statement of the case, &c.

'2. An assignment of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and specifically each error asserted and intended to be urged.'

And the rule further declares that 'without such an assignment of errors counsel will not be heard, except at the request of the court, and errors not assigned according to this rule will be disregarded, though the court at its option may notice a plain error not assigned.'

With these rules, officially published in form when first made, and long in force and generally acted on at the bar, the present case was brought up here and submitted. The briefs were elaborate, but contained no such assignment of errors as by the rule is prescribed.

Mr. N. Bennett, for the plaintiff in error; Messrs. Foote, Houghton, and Reynolds, contra.

The judgment of the Circuit Court is affirmed. There is no such assignment of errors in this case as is required by the rule, and we do not see in the record any error that ought to be noticed without an assignment.

title: Treat v. Jemison/Opinion of the Court


text: Talk:Treat v. Jemison/Opinion of the Court


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Parcels v. Johnson

ERROR to the Supreme Court of Missouri.

Mrs. Johnson brought suit against one Parcels, in one of the Circuit Courts of Adair County, Missouri, to have an assignment of dower in a certain one hundred and twenty acres of land, of which she alleged that her husband had been seized in fee simple and in such way as that she was dowable of the land.

The facts appeared to be, that her husband, before his marriage with her, had been a soldier in the infantry service of the United States in the war of 1812, and as such was entitled under acts of Congress to one hundred and twenty acres of land; that a warrant for this quantity of land was issued to him; that the plaintiff was afterwards married to him; that they had one child; that the husband died, his wife and child surviving; that afterwards, under an act of Congress, the warrant was located on the land in which the dower was claimed; that a patent soon afterwards, and before this suit was brought, issued in the name of the husband, for it; and that the curator of the child, under certain judicial proceedings, sold the land to Parcels, the defendant. The defence was—

1st. That the husband in his lifetime had no such seizin or estate as authorized his wife to be endowed.

2d. That the curator had reserved one-third of the proceeds of the sale of the land for the wife's use and benefit, and as her supposed dower in the money.

The second defence, however, was not proved, the defendant relying chiefly on the first.

The Circuit Court of Adair County adjudged that the husband had not been seized of any such estate as Mrs. Johnson could be endowed of.

From this judgment Mrs. Johnson took the case to the Supreme Court of Missouri. That court was of a different view, and having delivered and filed a learned opinion, found in the record, ordered the judgment of the Adair County Court to be reversed; and that—

'The said cause be remanded to the aforesaid Adair Circuit Court for further proceedings to be had therein in conformity with the opinion of this court herein delivered and filed.'

From this judgment Parcels now brought the case here, where it was elaborately argued upon the merits.

Mr. B. G. Barrow (with whom was Mr. M. H. Carpenter), for the plaintiff in error; Mr. J. F. Benjamin, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Parcels v. Johnson


text: Talk:Parcels v. Johnson

title: Talk:Parcels v. Johnson


text:
Parcels v. Johnson/Opinion of the Court

This writ of error is dismissed, upon the authority of Moore v. Robbins, St. Clair County v. Lovingston, Tracy v. Holcombe, Pepper v. Dunlap, Brown v. Union Bank.

A writ of error can only issue from this court to the highest court of a State for a review of the final judgment or decree of that court in a suit. In other words, it is only the last judgment or the last decree which the State courts can give in a suit, until that judgment or decree is set aside or reversed, that this court can, even in the prescribed cases, bring here for re-examination.

The judgment of the Supreme Court of Missouri, brought up in this case, is one of reversal only and remanding the suit to the inferior court for further proceedings in accordance with the opinion delivered and filed. The cause was sent back, therefore, for a new trial or a new hearing. Upon such trial or hearing the inferior court can proceed to render a new judgment, not inconsistent with the opinion, and that judgment may in its turn be taken to the Supreme Court for examination.

From the record it appears that one of the defences set up in the answer, to wit, that which was based upon the implied acceptance of one-third of the proceeds of the guardian's sale in lieu of dower in the land, was not proven. On a new trial that proof may be supplied and a judgment rendered thereon satisfactory to the now complaining party. In that manner the present supposed Federal question may be put out of the case. So, too, the present pleadings may be amended and a new case made, which will render unnecessary the consideration of any question that can give this court jurisdiction.

Thus it is apparent that the parties have not as yet exhausted the power of the State courts in the premises, and until that is done our power cannot be called into action. This court must be the last resort of litigants in State courts.

WRIT DISMISSED.

title: Parcels v. Johnson/Opinion of the Court


text: Talk:Parcels v. Johnson/Opinion of the Court


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Loan Association v. Topeka

ERROR to the Circuit Court for the District of Kansas.

The Citizens' Savings and Loan Association of Cleveland brought their action in the court below, against the city of Topeka, on coupons for interest attached to bonds of the city of Topeka.

The bonds on their face purported to be payable to the King Wrought-Iron Bridge Manufacturing and Iron-Works Company, of Topeka, to aid and encourage that company in establishing and operating bridge shops in said city of Topeka, under and in pursuance of section twenty-six of an act of the legislature of the State of Kansas, entitled 'An act to incorporate cities of the second class,' approved February 29th, 1872; and also of another 'Act to authorize cities and counties to issue bonds for the purpose of building bridges, aiding railroads, water-power, or other works of internal improvement,' approved March 2d, 1872.

The city issued one hundred of these bonds for $1000 each, as a donation (and so it was stated in the declaration), to encourage that company in its design of establishing a manufactory of iron bridges in that city.

The declaration also alleged that the interest coupons first due were paid out of a fund raised by taxation for that purpose, and that after this payment the plaintiff became the purchaser of the bonds and the coupons on which suit was brought, for value.

A demurrer was interposed by the city of Topeka to this declaration.

The section of the act of February 29th, on which the main reliance was placed for the authority to issue these bonds, reads as follows:

'SECTION 76. The council shall have power to encourage the establishment of manufactories and such other enterprises as may tend to develop and improve such city, either by direct appropriation from the general fund or by the issuance of bonds of such city in such amounts as the council may determine; Provided, That no greater amount than one thousand dollars shall be granted for any one purpose, unless a majority of the votes cast at an election called for that purpose shall authorize the same. The bonds thus issued shall be made payable at any time within twenty years, and bear interest not exceeding ten per cent. per annum.'

It was conceded that the steps required by this act prerequisite as to issuing the bonds were regular, as were also the other details, and that the language of the statute was sufficient to justify the action of the city authorities, if the statute was within the constitutional competency of the legislature.

The single question, therefore, for consideration raised by the demurrer was the authority of the legislature of the State of Kansas to enact this part of the statute.

The court below denied the authority, placing the denial on two grounds:

1st. That this part of the statute violated the fifth section of Article XII of the constitution of the State of Kansas; a section in these words:

'SECTION 5. Provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to prevent the abuse of such power.'

[The argument here was that the section of the act of February 29th, 1872, conferring the power to issue bonds contained no restriction as to the amount which the city might issue to aid manufacturing enterprises, and that the failure of the legislature to limit and restrict the power so as to prevent abuse, violated the fifth section of Article XII of the constitution above referred to.]

2d. That the act authorized the towns and other municipalities to which it applied, by issuing bonds or lending its credit, to take the property of the citizen under the guise of taxation to pay these bonds, and use it in aid of the enterprises of others which were not of a public character; that this was a perversion of the right of taxation, which could only be exercised for a public use, to the aid of individual interests and personal purposes of profit and gain.

The court below accordingly, sustaining the demurrer, gave judgment in favor of the defendant, the city of Topeka; and to its judgment this writ of error was taken.

Mr. Alfred Ennis, for the plaintiff in error; Messrs. Ross, Burns, and A. L. Williams, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Loan Association v. Topeka


text: Talk:Loan Association v. Topeka

title: Talk:Loan Association v. Topeka


text:
Loan Association v. Topeka/Opinion of the Court

Two grounds are taken in the opinion of the circuit judge and in the argument of counsel for defendant, on which it is insisted that the section of the statute of February 29th, 1872, on which the main reliance is placed to issue the bonds, is unconstitutional.

The first of these is, that by section five of article twelve of the constitution of that State it is declared that provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to prevent the abuse of such power.

The argument is that the statute in question is void because it authorizes cities and towns to contract debts, and does not contain any restriction on the power so conferred. But whether the statute which confers power to contract debts should always contain some limitation or restriction, or whether a general restriction applicable to all cases should be passed, and whether in the absence of both the grant of power to contract is wholly void, are questions whose solution we prefer to remit to the State courts, as in this case we find ample reason to sustain the demurrer on the second ground on which it is argued by counsel and sustained by the Circuit Court.

That proposition is that the act authorizes the towns and other municipalities to which it applies, by issuing bonds or loaning their credit, to take the property of the citizen under the guise of taxation to pay these bonds, and use it in aid of the enterprises of others which are not of a public character, thus perverting the right of taxation, which can only be exercised for a public use, to the aid of individual interests and personal purposes of profit and gain.

The proposition as thus broadly stated is not new, nor is the question which it raises difficult of solution.

If these municipal corporations, which are in fact subdivisions of the State, and which for many reasons are vested with quasi legislative powers, have a fund or other property out of which they can pay the debts which they contract, without resort to taxation, it may be within the power of the legislature of the State to authorize them to use it in aid of projects strictly private or personal, but which would in a secondary manner contribute to the public good; or where there is property or money vested in a corporation of the kind for a particular use, as public worship or charity, the legislature may pass laws authorizing them to make contracts in reference to this property, and incur debts payable from that source.

But such instances are few and exceptional, and the proposition is a very broad one, that debts contracted by municipal corporations must be paid, if paid at all, out of taxes which they may lawfully levy, and that all contracts creating debts to be paid in future, not limited to payment from some other source, imply an obligation to pay by taxation.

It follows that in this class of cases the right to contract must be limited by the right to tax, and if in the given case no tax can lawfully be levied to pay the debt, the contract itself is void for want of authority to make it.

If this were not so, these corporations could make valid promises, which they have no means of fulfilling, and on which even the legislature that created them can confer no such power. The validity of a contract which can only be fulfilled by a resort to taxation, depends on the power to levy the tax for that purpose.

It is, therefore, to be inferred that when the legislature of the State authorizes a county or city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an inference.

With these remarks and with the reference to the authorities which support them, we assume that unless the legislature of Kansas had the right to authorize the counties and towns in that State to levy taxes to be used in aid of manufacturing enterprises, conducted by individuals, or private corporations, for purposes of gain, the law is void, and the bonds issued under it are also void. We proceed to the inquiry whether such a power exists in the legislature of the State of Kansas.

We have already said the question is not new. The subject of the aid voted to railroads by counties and towns has been brought to the attention of the courts of almost every State in the Union. It has been thoroughly discussed and is still the subject of discussion in those courts. It is quite true that a decided preponderance of authority is to be found in favor of the proposition that the legislatures of the States, unless restricted by some special provisions of their constitutions, may confer upon these municipal bodies the right to take stock in corporations created to build railroads, and to lend their credit to such corporations. Also to levy the necessary taxes on the inhabitants, and on property within their limits subject to general taxation, to enable them to pay the debts thus incurred. But very few of these courts have decided this without a division among the judges of which they were composed, while others have decided against the existence of the power altogether.

In all these cases, however, the decision has turned upon the question whether the taxation by which this aid was afforded to the building of railroads was for a public purpose. Those who came to the conclusion that it was, held the laws for that purpose valid. Those who could not reach that conclusion held them void. In all the controversy this has been the turning-point of the judgments of the courts. And it is safe to say that no court has held debts created in aid of railroad companies, by counties or towns, valid on any other ground than that the purpose for which the taxes were levied was a public use, a purpose or object which it was the right and the duty of State governments to assist by money raised from the people by taxation. The argument in opposition to this power has been, that railroads built by corporations organized mainly for purposes of gain-the roads which they built being under their control, and not that of the State were private and not public roads, and the tax assessed on the people went to swell the profits of individuals and not to the good of the State, or the benefit of the public, except in a remote and collateral way. On the other hand it was said that roads, canals, bridges, navigable streams, and all other highways had in all times been matter of public concern. That such channels of travel and of the carrying business had always been established, improved, regulated by the State, and that the railroad had not lost this character because constructed by individual enterprise, aggregated into a corporation.

We are not prepared to say that the latter view of it is not the true one, especially as there are other characteristics of a public nature conferred on these corporations, such as the power to obtain right of way, their subjection to the laws which govern common carriers, and the like which seem to justify the proposition. Of the disastrous consequences which have followed its recognition by the courts and which were predicted when it was first established there can be no doubt.

We have referred to this history of the contest over aid to railroads by taxation, to show that the strongest advocates for the validity of these laws never placed it on the ground of the unlimited power in the State legislature to tax the people, but conceded that where the purpose for which the tax was to be issued could no longer be justly claimed to have this public character, but was purely in aid of private or personal objects, the law authorizing it was beyond the legislative power, and was an unauthorized invasion of private right.

It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.

The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.

There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

Of all the powers conferred upon government that of taxation is most liable to abuse. Given a purpose or object for which taxation may be lawfully used and the extent of its exercise is in its very nature unlimited. It is true that express limitation on the amount of tax to levied or the things to be taxed may be imposed by constitution or statute, but in most instances for which taxes are levied, as the support of government, the prosecution of war, the National defence, any limitation is unsafe. The entire resources of the people should in some instances be at the disposal of the government.

The power to tax is, therefore, the strongest, the most pervading of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall, in the case of McCulloch v. The State of Maryland, that the power to tax is the power to destroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent. imposed by the United States on the circulation of all other banks than the National banks, drove out of existence every State bank of circulation within a year or two after its passage. This power can as readily be employed against one class of individuals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised.

To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.

Nor is it taxation. A 'tax,' says Webster's Dictionary, 'is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or state.' 'Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes.'

Coulter, J., in Northern Liberties v. St. John's Church, says, very forcibly, 'I think the common mind has everywhere taken in the understanding that taxes are a public imposition, levied by authority of the government for the purpose of carrying on the government in all its machinery and operations-that they are imposed for a public purpose.'

We have established, we think, beyond cavil that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not.

It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use, and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interference cogent. And in deciding whether, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether State or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation.

But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufacturers, there is no difficulty in holding that this is not such a public purpose as we have been considering. If it be said that a benefit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally promoters of the public good, and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treasury to the importunities of two-thirds of the business men of the city or town.

A reference to one or two cases adjudicated by courts of the highest character will be sufficient, if any authority were needed, to sustain us in this proposition.

In the case of Allen v. The Inhabitants of Jay, the town meeting had voted to loan their credit to the amount of $10,000, to Hutchins and Lane, if they would invest $12,000 in a steam saw-mill, grist-mill, and box-factory machinery, to be built in that town by them. There was a provision to secure the town by mortgage on the mill, and the selectmen were authorized to issue town bonds for the amount of the aid so voted. Ten of the taxable inhabitants of the town filed a bill to enjoin the selectmen from issuing the bonds.

The Supreme Judicial Court of Maine, in an able opinion by Chief Justice Appleton, held that this was not a public purpose, and that the town could levy no taxes on the inhabitants in aid of the enterprise, and could, therefore, issue no bonds, though a special act of the legislature had ratified the vote of the town, and they granted the injunction as prayed for.

Shortly after the disastrous fire in Boston, in 1872, which laid an important part of that city in ashes, the governor of the State convened the legislative body of Massachusetts, called the General Court, for the express purpose of affording some relief to the city and its people from the sufferings consequent on this great calamity. A statute was passed, among others, which authorized the city to issue its bonds to an amount not exceeding twenty millions of dollars, which bonds were to be loaned, under proper guards for securing the city from loss, to the owners of the ground whose buildings had been destroyed by fire, to aid them in rebuilding.

In the case of Lowell v. The City of Boston, in the Supreme Judicial Court of Massachusetts, the validity of this act was considered. We have been furnished a copy of the opinion, though it is not yet reported in the regular series of that court. The American Law Review for July, 1873, says that the question was elaborately and ably argued. The court, in an able and exhaustive opinion, decided that the law was unconstitutional, as giving a right to tax for other than a public purpose.

The same court had previously decided, in the case of Jenkins v. Anderson, that a statute authorizing the town authorities to aid by taxation a school established by the will of a citizen, and governed by trustees selected by the will, was void because the school was not under the control of the town officers, and was not, therefore, a public purpose for which taxes could be levied on the inhabitants.

The same principle precisely was decided by the State court of Wisconsin in the case of Curtis v. Whipple. In that case a special statute which authorized the town to aid the Jefferson Liberal Institute was declared void because, though a school of learning, it was a private enterprise not under the control of the town authorities. In the subsequent case of Whiting v. Fond du Lac, already cited, the principle is fully considered and reaffirmed.

These cases are clearly in point, and they assert a principle which meets our cordial approval.

We do not attach any importance to the fact that the town authorities paid one instalment of interest on these bonds. Such a payment works no estoppel. If the legislature was without power to authorize the issue of these bonds, and its statute attempting to confer such authority is void, the mere payment of interest, which was equally unauthorized, cannot create of itself a power to levy taxes, resting on no other foundation than the fact that they have once been illegally levied for that purpose.

The act of March 2d, 1872, concerning internal improvements, can give no assistance to these bonds. If we could hold that the corporation for manufacturing wrought-iron bridges was within the meaning of the statute, which seems very difficult to do, it would still be liable to the objection that money raised to assist the company was not for a public purpose, as we have already demonstrated.

JUDGMENT AFFIRMED.

Unable to concur either in the opinion or judgment in this case, I will proceed to state, in very brief terms, the reasons which compel me to withhold my concurrence.

Corporations of a municipal character are created by the legislature, and the legislature, as the trustee or guardian of the public interest, has the exclusive and unrestrained control over such a franchise, and may enlarge, diminish, alter, change, or abolish the same at pleasure. Where the grantees of a franchise, as well as the grantors, are public bodies and the franchise is created solely for municipal objects, the grant is at all times within the control of the legislature, and consequently the charter is subject to amendment or repeal at the will of the granting power.

Errors of indiscretion which the legislature may commit in the exercise of the power it possesses cannot be corrected by the courts, for the reason that the courts cannot adjudge an act of the legislature void unless it is in violation of the Federal or State constitution.

State constitutions may undoubtedly restrict the power of the legislature to pass laws, and it is plain that any law passed in violation of such a prohibition is void, but the better opinion is that where the constitution of the State contains no prohibition upon the subject, express or implied, neither the State nor Federal courts can declare a statute of the State void as unwise, unjust, or inexpedient, nor for any other cause, unless it be repugnant to the Federal Constitution. Except where the Constitution has imposed limits upon the legislative power the rule of law appears to be that the power of legislation must be considered as practically absolute, whether the law operates according to natural justice or not in any particular case, for the reason that courts are not the guardians of the rights of the people of the State, save where those rights are secured by some constitutional provision which comes within judicial cognizance; or, in the language of Marshall, C. J., 'The interest, wisdom, and justice of the representative body furnish the only security in a large class of cases not regulated by any constitutional provision.'

Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.

Subject to the Federal Constitution the legislature of the State possesses the whole legislative power of the people, except so far as the power is limited by the State constitution.

Our own decisions are to the same effect, as appears by one of very recent date, in which the court say that 'the legislative power of a State extends to everything within the sphere of such power, except as it is restricted by the Federal Constitution or that of the State.'

Apply those principles to the cases before the court and it follows, as it seems to me, that the judgment in each case should be reversed for the following reasons: (1.) Because the demurrer to the declaration in each case should have been overruled. (2.) Because the bonds to which the coupons sued on were attached were issued in pursuance of the express authority of the legislature vesting that power in the corporation defendants. (3.) Because the constitution of the State does not in any manner prohibit the passage of such a law as that under which the bonds were issued. (4.) Because it is not competent for a Federal court to adjudge a State statute void which does not conflict in any respect with the Constitution of the United States or that of the State whose legislature enacted the statute.

Unwise laws and such as are highly inexpedient and unjust are frequently passed by legislative bodies, but there is no power vested in a Circuit Court nor in this court, to determine that any law passed by a State legislature is void if it is not repugnant to their own constitution nor the Constitution of the United States.

Vague apprehensions seem to be entertained that unless such a power is claimed and exercised inequitable consequences may result from unnecessary taxation, but in my judgment there is much more to be dreaded from judicial decisions which may have the effect to sanction the fraudulent repudiation of honest debts, than from any statutes passed by the State to enable municipal corporations to meet and discharge their just pecuniary obligations.


text: Talk:Loan Association v. Topeka/Opinion of the Court


text:
Basey v. Gallagher

APPEAL from the Supreme Court of the Territory of Montana. The case was thus:

The organic act of the Territory just named recognizes the distinction between the jursidictions of law and equity, but requires that proceedings in both be in the same court.

By a statute of the Territory regulating proceedings in such cases in courts of the Territory, only one form of civil action is allowed; and it is there enacted that 'issues of fact shall be tried by a jury, unless a jury is waived or a reference ordered,' in a way which the statute provides.

In this state of the law Gallagher and others filed a bill in one of the District Courts of the Territory, against Basey, Stafford, and others, praying for an injunction to restrain them from diverting the water of a steam known as Avalanche Creek, in the said Territory, to which they, the plaintiffs, asserted a right by prior appropriation for the purposes of irrigation. They alleged that in the year 1866 they and their predecessors in interest took up for settlement and cultivation certain farms, designated by them as 'ranches,' on the public lands of the United States near the creek, in the county of Meagher, in that Territory; and that they or their predecessors in interest had ever since occupied and cultivated the same; that it was necessary to irrigate the land for its successful cultivation, and to raise grain, hay, and vegetables; that they accordingly, during that year and the following spring, constructed, at great labor and expense, a ditch by which they intersected the creek a short distance from its junction with the Missouri River, and conveyed its water to their farms and used it for irrigation; that at this time the water was not appropriated by any person, and was subject to appropriation by them; that by their ditch they appropriated the water to the extent of five hundred inches, according to the measurement of miners; that this amount was necessary to the successful cultivation of the land, and by means of it they and their predecessors in interest were enabled to cultivate the farms and raise large and valuable crops of grain, hay, and vegetables.

They further alleged that subsequent to this appropriation by them, and during the years 1867 and 1870, and the intervening period, the defendants erected dams across the creek above the head of their ditch and diverted the water of the stream, and thereby wholly deprived them of its use and enjoyment, preventing their cultivation of the farms and rendering them useless; that had the water been permitted to flow, unobstructed by the dams of the defendants, there would have been a sufficient supply for irrigating and cultivating the farms. They therefore sought the aid of the court to restrain the defendants from diverting the water, except so much as might be in excess of the five hundred inches appropriated by them.

To this complaint the defendants demurred, on the ground, 1st, that the cause of action alleged was barred by the statute of limitations; and, 2d, that the complaint did not state a cause of action. The record did not disclose what disposition was made of the demurrer.

An answer was subsequently filed which denied the several allegations of the complaint, except the one which averred the possession by the plaintiffs of their farms.

The record was a very defective one, and presented the case obscurely. Gathering, however, what could be gathered from its imperfect statements, it would seem that at the May Term of the District Court of the Territory in 1871, previous to the final hearing, which was had at the subsequent July Term, a jury was called in the case, to which certain questions were submitted and its answers taken. The jury found substantially that parties by the name of White and Torvais, prior to September or October, 1866, had appropriated the water of the creek to the extent of thirty-five inches; that these parties, during one of those months, gave the plaintiffs and their predecessors the right to connect with their ditch, and to extend and enlarge the same; that the plaintiffs and their predecessors commenced such enlargement during those months, and increased the capacity of the ditch to two hundred and fifty inches; that White and Torvais afterwards, in 1867, sold their waterright and ditch to the defendant, Stafford; that the defendants, Basey, had no interest in privity with the other defendants, and diverted the water for his own use by agreement with the plaintiffs, and that neither of the other defendants had diverted water to the injury of the plaintiffs previous to the commencement of the action.

Upon these special findings both parties moved the court for judgment; the defendants, that the complaint be dismissed; the plaintiffs, that a decree pass in their favor. On these motions the court heard the whole case 'on the pleadings, evidence, and proceedings therein, and the findings of the jury,' and rendered a decree adjudging that the defendant, Stafford, was entitled to thirty-five inches of the water, and that as against the defendants, saving this amount, the plaintiffs were entitled to two hundred and fifteen inches of the water, and decreed an injunction against any diversion of the water by the defendants which would prevent its flow to this extent in the stream to the ditch of the plaintiffs. From this decree an appeal was taken to the Supreme Court of the Territory, and there the decree was affirmed. From that affirmance this appeal was taken.

In rendering the decree, the District Court disregarded a portion of the findings of the jury and adopted others, and this action was approved by the Supreme Court of the Territory, and constituted one of the errors assigned here for the reversal of its decree.

The correctness or incorrectness of the decree appealed from, depended perhaps, in part, upon certain statutes.

They were thus: One was an act of Congress of July 26th, 1866, which enacted as follows:

'SECTION 9. Whenever by priority of possession rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same. And the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed.'

The other statutes were Territorial acts. The first was an act passed on the 12th of January, 1865, entitled 'An act to protect and regulate the irrigation of land in Montana Territory.' The first section of this act thus enacted:

'All persons who claim, own, or hold a possessory right or title to any land, or parcel of land, within the boundary of Montana Territory, as defined in the organic act of this Territory, when those claims are on the bank, margin, or neighborhood of any stream of water, creek, or river, shall be entitled to the use of the water of said stream for the purpose of irrigation, and making said claim available to the full extent of the soil for agricultural purposes.'

The fourth section was thus:

'In case the volume of water in said stream or river shall not be sufficient to supply the continual wants of the entire country through which it passes, then the nearest justice of the peace shall appoint three commissioners, as hereinafter provided, whose duty it shall be to apportion, in a just and equitable proportion, a certain amount of said water, upon certain alternate weekly days, to different localities, as they may in their judgment think best for the interest of all parties concerned, and with a due regard to the legal rights of all.'

In 1870 this act of 1865 was repealed and another act was passed, making provision for the construction of ditches and the irrigation of agricultural lands. This enacted in its second, fifth, and sixth sections as follows:

'SECTION 2. Any person or persons, corporation or company, who may have or hold a title or possessory right or title to any agricultural lands within the limits of this Territory, as defined by the organic act thereof, shall be entitled to the use and enjoyment of the waters of the streams or creeks in said Territory for the purposes of irrigation and making said land available for agricultural purposes to the full extent of the soil thereof.

'SECTION 5. In all controversies respecting the rights to water under the provisions of this act the same shall be determined by the date of the appropriation as respectively made by the parties.

'SECTION 6. The waters of the streams or creeks of the Territory, may be made available to the full extent of the capacity thereof for irrigating purposes, without regard to deterioration in quality or diminution in quantity, so that the same do not materially affect or impair the rights of the prior appropriator, but in no case shall the same be diverted or turned from the ditches or canals of such appropriator, so as to render the same unavailable.'

In 1871 and 1872, when the statutes of Montana were revised, and a code of laws and practice was established for the Territory, this last act was incorporated into the system and re-enacted as part of it.

Mr. Montgomery Blair, for the appellants:

The Supreme Court of the Territory erred in affirming the decree of the District Court:

1. Because in rendering that decree the District Court disregarded the findings of the jury, and by the laws of the Territory those findings were conclusive upon the court.

In the Territory of Montana only one form of action is allowed, and all distinctions in actions are abolished. And issues of fact are required to be tried by a jury in all cases, unless a jury is waived, or a reference is ordered, as provided for in the act. And the jury are made the exclusive judges of all questions of fact. Now in Taylor v. Person, a case from North Carolina, in which the distinction between law and equity is fully recognized, but where a statute requires just what the Montana statute requires, it has been adjudged that if the record does not show that the facts had been found by a jury, it is error for which the decree will be reversed.

2. Because the decree proceeds upon the assumption that the appellees acquired a vested right in the water in question by being the first appropriators of it.

The law governing this subject is found in the act of Congress of July 26th, 1866. By the terms of that act the right in question is made to depend upon the existence of three several conditions: First, 'it must be recognized and acknowledged by the local customs of the Territory;' second, by 'the (local) laws;' and, Third, 'by the decisions of the courts.'

The fourth section of the act of the Territory of 1865 is inconsistent with the doctrine of right by prior appropriation, and so Chief Justice Wade held in his separate opinion in the case of Thorp v. Freed. It is true that his associate, Knowles, J., differed from him, and that the case was decided on other grounds. In commenting upon the statute mentioned the Chief Justice says:

title: Basey v. Gallagher


text: Talk:Basey v. Gallagher

title: Talk:Basey v. Gallagher


text:
Basey v. Gallagher/Opinion of the Court

'The whole purpose of the statute was to utterly abolish and annihilate the doctrine of prior appropriation.'. . . 'If the section does not mean that there shall be an equal distribution among all the parties concerned in such water, without any regard whatever to the date of appropriation, then I am utterly unable to comprehend the language used.'Mr. R. T. Merrick, contra:

I. The case was a chancery case, and was tried as such, and the decree is in the usual form of decrees in chancery.

The issues submitted to the jury were so submitted only to aid the chancellor in ascertaining, from the evidence before him, the ultimate facts upon which to rest his decree. The two jurisdictions of law and equity in Montana are recognized as separate and distinct, and even though one form of action prevail, must be exercised as separate and distinct from each other in all cases, and equitable or legal relief administered according to the rules appertaining to the jurisdictions respectively.

II. The first appropriation of the water of a stream passing through the public lands of the United States for some beneficial purpose confers the right to the use and enjoyment of the water to the extent of the original appropriation.

In this case there is no riparian owner except the United States, and the record does not show that either of the parties even occupy along the margin of the stream. The lands being open to appropriation the rule of time is the rule of right, and the first taker is to be protected in his entry and possession. Blackstone says:

'If a stream be unoccupied I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or his meadow, for he hath by his first occupancy acquired a property in the current.'

In Williams v. Morland, and in Liggins v. Inge, and in the earlier cases in Massachusetts and Connecticut a similar principle was announced. Later adjudiciations in England establishing a different doctrine rest upon the fact that the right to the use of the water of the stream had never been detached as property from the ownership of the adjacent soil, and that such use was claimed and held only as a riparian right.

The act of Congress of July 26th, 1866, clearly recognizes a right to the use of water as independent of any right or title to land, and assures protection to this right whenever it has vested by 'priority of possession,' provided the 'local customs, laws, and decisions of courts,' recognize such a right and such a mode of acquiring it.

Congress is here dealing with the public domain.

The question then arises, is the case of the complainant within the provisions of the act of Congress of July 26th, 1866?

Do the local customs, laws, and decisions of the courts of Montana recognize the acquisition of a right to the use of the water of a stream by appropriation, as separate and distinct from the ownership of land adjacent to the stream, and is such right to be determined by the priority of possession among respective claimants?

What is the fact as the local customs, laws, and decisions of Montana, as they affect this question?

[The counsel here cited and commented upon the laws of the Territory which are given in the statement of the case; and contended that they established that 'rights to the use of water for agricultural purposes' may be acquired and become vested by priority of possession.]

The 'local customs and decisions of the courts' of the Territory also recognize and establish a similar rule of property.

'Ever since the settlement of this Territory it has been the custom of those who settled themselves upon the public domain and devoted and part thereof to the purposes of agriculture, to dig diches and turn out the water of some stream to irrigate the same. This right has been generally recognized by our people. It has been universally conceded that it was a necessity of agricultural pursuits. So universal has been this usage that I do not suppose there has been a pared of land, to the extent of one acre, cultivated within the bounds of this Territory that has not been irrigated by water diverted from some running stream.'

Wade, C. J., in a separate opinion in the same case, denies that any custom exists recognizing the right to appropriate water for the purpose of agriculture and irrigation, whilst apparently admitting the existence of the custom as applied to mining and the mineral lands of the public domain.

But if a usage exists recognizing the right to divert and appropriate water, the purpose for which the appropriation may be made is immaterial, provided it be useful or beneficial and not for speciation.

This right has been recognized, too, by the courts. The cases referred to show that it has been uniformly recognized and established in California and Nevada, and the courts of Montana have, on this subject, followed the decisions of the courts of those States.

Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court, as follows:

The record does not disclose what disposition was made of the demurrer to the complaint, but as an answer was subsequently filed upon which the parties proceeded to a hearing, the presumption is that it was abandoned.

By the organic act of the Territory, the District Courts are invested with chancery and common-law jurisdiction. The two jurisdictions are exercised by the same court, and, under the legislation of the Territory, the modes of procedure up to the trial or hearing are the same whether a legal or equitable remedy is sought. The suitor, whatever relief he may ask, is required to state 'in ordinary and concise language' the facts of his case upon which he invokes the judgment of the court. But the consideration which the court will give to the questions raised by the pleadings, when the case is called for trial or hearing, whether it will submit them to a jury, or pass upon them without any such intervention, must depend upon the jurisdiction which is to be exercised. If the remedy sought be a legal one, a jury is essential unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury, and if it does call one, it is only for the purpose of enlightening its conscience, and not to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. Sometimes in the same action both legal and equitable relief may be sought, as for example, where damages are claimed for a past diversion of water, and an injunction prayed against its diversion in the future. Upon the question of damages, a jury would be required; but upon the propriety of an injunction, the action of the court alone could be invoked. The formal distinctions in the pleadings and modes of procedure are abolished; but the essential distinction between law and equity is not changed. The relief which the law affords must still be administered through the intervention of a jury, unless a jury be waivered; the the relief which equity affords must still be applied by the court itself, and all information presented to guide its action, whether obtained through masters' reports or findings of a jury, is merely advisory. Ordinarily, where there has been an examination before a jury of a disputed fact, and a special finding made, the court will follow it. But whether it does so or not must depend upon the question whether it is satisfied with the verdict. This discretion to disregard the findings of the jury may undoubtedly be qualified by statute; but we do not find anything in the statute of Montana, regulating proceedings in civil cases, which affects this discretion. That statute is substantially a copy of the statute of California as it existed in 1851, and it was frequently held by the Supreme Court of that State, that the provision in that act requiring issues of fact to be tried by a jury, unless a jury was waived by the parties, did not require the court below to regard as conclusive the finding of a jury in an equity case, even though no application to vacate the findings was made by the parties, if in its judgment they were not supported by the evidence. That court only held that the findings, when not objected to in the court below and the judge was satisfied with them, could not be questioned for the first time on appeal.

The question on the merits in this case is whether a right to running waters on the public lands of the United States for purposes of irrigation can be acquired by prior appropriation, as against parties not having the title of the government. Neither party has any title from the United States; no question as to the rights of riparian proprietors can therefore arise. It will be time enought to consider those rights when either of the parties has obtained the patent of the government. At present, both parties stand upon the same footing; neither can allege that the other is a trespasser against the government without at the same time invalidating his own claim.

In the late case of Atchison v. Peterson, we had occasion to consider the respective rights of miners to running waters on the mineral lands of the public domain; and we there held that by the custom which had obtained among miners in the Pacific States and Territories, the party who first subjected the water to use, or took the necessary steps for that purpose, was regarded, except as against the government, as the source of title in all controversies respecting it; that the doctrines of the common law declaratory of the rights of riparian proprietors were inapplicable, or applicable only to a limited extent, to the necessities of miners, and were inadequate to their protection; that the equality of right recognized by that law among all the proprietors upon the same stream, would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the steam; that the government by its silent acquiescence had assented to and encouraged the occupation of the public lands for mining; and that he who first connected his labor with property thus situated and open to general exploration, did in natural justice acquire a better right to its use and enjoyment than others who had not given such labor; that the miners on the public lands throughout the Pacific States and Territories, by their customs, usages, and regulations, had recognized the inherent justice of this principle, and the principle itself was at an early period recognized by legislation and enforced by the courts in those States and Territories, and was finally approved by the legislation of Congress in 1866. The views there expressed and the rulings made are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those States and Territories by the custom of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one.

In the case of Tartar v. The Spring Creek Water and Mining Company, decided in 1855, the Supreme Court of California said: 'The current of decisions of this court go to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. In evidence of this, acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels for mining purposes; and others of like character. This policy has been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case where the rights of the agriculturist are made to yield to those of the miner where gold is discovered in his land. . . . The policy of the exception is obvious. Without it the entire gold region might have been inclosed in large tracts, under the pretence of agriculture and grazing, and eventually what would have sufficed as a rich bounty to many thousands would be reduced to the proprietorship of a few. Aside from this the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land.'

Ever since that decision it has been held generally throughout the Pacific States and Territories that the right to water by prior appropriation for any beneficial purpose is entitled to protection. Water is diverted to propel machinery in flour-mills and saw-mills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims; and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. We say within reasonable limits, for this right to water, like the right by prior occupancy to mining ground or agricultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use and vest an absolute monopoly in a single individual. The act of Congress of 1866 recognizes the right to water by prior appropriation for agricultural and manufacturing purposes, as well as for mining. Its language is: 'That whenever by priority of possession rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be mintained and protected in the same.'

It is very evident that Congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the peculiar necessities of their condition; and that law may be shown by evidence of the local customs, or by the legislation of the State or Territory, or the decisions of the courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control.

This law was in force when the plaintiffs in this case acquired their right to the waters of Avalanche Creek. There was also in force an act of the Territory, passed on the 12th of January, 1865, to protect and regulate the irrigation of land, which declared in its first section that all persons who claimed or held a possessory right or title to any land within the Territory on the bank, margin, or neighborhood of any stream of water, should be 'entitled to the use of the water of said stream for the purpose of irrigation and making said claim available to the full extent of the soild for agricultural purposes.' Another section provided that in case the volume of water in the stream was not sufficient to supply the continual wants of the entire country, through which it passed, an apportionment of the water should be made between different localities by commissioners appointed for that purpose. This last section has no application to the present case, for it is not pretended that there was not water enough in the district, where Avalanche Creek flows, to supply the wants of the country; and, the section itself was repealed in 1870.

In January of that year another act was passed by the legislature of Montana upon the same subject, which recognizes the right by prior appropriation of water for the purposes of irrigation, and declares that all controversies respecting the rights to water under its provisions shall be determined by the date of the appropriation as respectively made by the parties, and that the water of the streams shall be made available to their full extent for irrigating purposes, without regard to deterioration in quality or diminution in quantity, 'so that the same do not materially affect or impair the rights of the prior appropriator; but in no case shall the same be diverted or turned from the ditches or canals of such appropriator so as to render the same unavailable.'

Several decisions of the Supreme Court of Montana have been cited to us recognizing the right by prior appropriation to water for purposes of mining on the public lands of the United States, and there is no solid reason for upholding the right when the water is thus used, which does not apply with the same force when the water is sought on those lands for any other equally beneficial purpose. In Thorp v. Freed the subject was very ably discussed by two of the justices of that court, who differed in opinion upon the question in that case, where both parties had acquired the title of the government. The disagreement would seem to have arisen in the application of the doctrine to a case where title had passed from the government, and not in its application to a case where neither party had acquired that title. In the course of his opinion Mr. Justice Knowles stated that ever since the settlement of the Territory it had been the custom of those who had settled themselves upon the public domain and dveoted any part thereof to the purposes of agriculture, to dig ditches and turn out the water of some stream to irrigate the same; that this right had been generally recognized by the people of the Territory, and had been universally conceded as a necessity of agricultural pursuits. 'So universal,' added the justice, 'has been this usage that I do not suppose there has been a parcel of land, to the extent of one acre, cultivated within the bounds of this Territory, that has not been irrigated by water diverted from some running stream.'

We are satisfied that the right claimed by the plaintiffs is one which, under the customs, laws, and decisions of the courts of the Territory, and the act of Congress, should be recognized and protected.

DECREE AFFIRMED.

title: Basey v. Gallagher/Opinion of the Court


text: Talk:Basey v. Gallagher/Opinion of the Court


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American Cyanamid Co. v. Capuano

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Mary M. Lisi, U.S. District Judge. Rohm & Haas Co. v. Capuano, 301 F. Supp. 2d 156 (D.R.I., 2004)

Affirmed.

Mortimer C. Newton, was on brief, for appellants.

John M. Armstrong, with whom Schnader Harrison Segal & Lewis LLP was on brief, for appellee.

Before Torruella and Lipez, Circuit Judges, and Saris, District Judge.

title: American Cyanamid Co. v. Capuano