text:
Newell v. Norton and Ship/Opinion of the Court

'I have considered the evidence with much care; it is very conflicting; and an opinion founded upon one portion of it must necessarily be hostile to conclusions which have their support in another portion. I think it is a case in which men may naturally form different conclusions, ''and that an appeal is a very proper remedy for the party who is aggrieved. A re-hearing of the case would not speed the cause to its final determination;'' and, upon the suggestions that the decree is erroneous, I do not think I should be authorized to allow a re-hearing.'

The case was now here on appeal.

Mr. Speed, A. G., and Mr. Ashton, acting as private counsel, for the appellants: It has never been decided nor recognized as a principle of admiralty practice that the misjoinder of actions can be cured by putting the libellant to his election. The libel ought to have been dismissed, and then the party asserting himself to be aggrieved could have filed his libel rightly. Before the adoption of the admiralty rules of 1845, the proceeding in rem could not be joined with a suit in personam; and the right to unite these distinct remedies in the same libel is given solely by virtue of these rules. By authorizing the two remedies to be blended in the same libel they made an innovation in established practice, and the libellant must have complied literally with their provision. The amending of a libel, all wrong originally, was improper.

2. As respects the discharge of the sureties. The boat was not seized again after the change in the libel, and no new bond was given or required. The sureties bound themselves with reference to the libel. The contract of suretyship is stricti juris, and cannot be extended by implication. The undertaking of the sureties was to satisfy such decree as might be rendered upon the libel filed, under which the vessel had been seized; and it is obvious that no other decree could have been rendered upon the libel, in its original form, than one of dismissal. If the libel was not authorized by law, if, in fact, as was the case, it was in direct violation of the law and the rules adopted by this court governing proceeding in the admiralty, the seizure and detention of the boat were illegal ab initio; and the bond given for her release was without consideration and void.

When, therefore, the libellant elected to proceed in rem against the vessel, and in personam against the master alone, he attempted to place the sureties in duriori casu than that contemplated by them at the time they contracted as sureties, and to change the obligation which they had assumed, which was to satisfy such decree as might be rendered upon the libel filed, into an obligation to respond to a decree to be rendered upon a new libel, freed from the objection which made that with reference to which they had bound themselves void; an obligation to which the sureties in no manner have assented. Of course they are discharged.

3. The libellant here but represents the underwriters, or the vessel and cargo. Now can a claim for damages resulting from a collision be assigned so as to convey to the assignee the lien which may have existed in favor of the assignor, and to vest in the assignee the right to proceed in the admiralty in his own name for reparation for a wrong which was not done to him nor to his property? We think not. The admiralty has no jurisdiction unless the contract which the libellant seeks to enforce is maritime. A contract may be maritime, but it would by no means follow that the assignment of that contract must also be maritime. An assignment is not and never can be a maritime contract; it is always an ordinary civil contract. Maritime liens are not established by the agreement of the parties, except in hypothecations of vessels, but they result from the nature and object of the contract. They are consequences attached by law to certain contracts, and are independent of any agreement between the parties that such liens shall exist. They, too, are stricti juris. Indeed, the only power the contracting parties have respecting such liens as attach as consequences to certain contracts is, that the creditor may waive the lien, and may by express stipulation, or by his manner of dealing in certain cases, give credit exclusively to those who would also have been bound to him personally by the same contract which would have given rise to the lien.

4. As to merits. [The learned counsel here proceeded to collocate and present the evidence, so that it bore in a strong way against the World; and argued that, rightly considered and according to the weight of the evidence, reference being had to the character of the witnesses as sworn to for truth, the fault was with that vessel, not at all with the Hill.]

Messrs. Carlisle and McPherson, contra: This libel is not multifarious within a proper definition of the term. It states but one cause of action, and seeks but one measure of relief. And it is a proof of this, that if any one of the defendants would satisfy the demand set forth against him, it would be a satisfaction of the whole cause of action.

The real defect of the libel was in making parties of persons who could not be made liable in that form of action. It was a misjoinder merely, and so a defect of form. What, then, should have been the ruling of the District Court? The claimants say, to have dismissed the libel as to all the parties. But this court said, in the case of The Schooner Adelide: 'When merits clearly appear on the record, it is the settled practice in admiralty proceedings not to dismiss the libel, but to allow the party to assert his rights in a new allegation.' So in The Commander-in-Chief they said: 'Objections to parties, or for want of proper parties, should be made in the court below, when amendments may be granted in the discretion of the court. Parties improperly joined may, on motion, be stricken out, and new parties may be added by a supplemental libel and petition.'

But it is further objected that, by allowing the libellant to amend, or dismissing the bill as the certain parties, injustice was done to other parties-to the sureties; who, having agreed to abide the result of a libel which could not be sustained, have to abide the result of one which has been thus freed from objection. The same objection was raised in the case of The Harmony, but was not held of force. It was there observed, that it would not have force in a common lawsuit; and a fortiori would find no support in a court exercising admiralty jurisdiction.

It being then established that the libel was not to be dismissed, the next question was, who were the improper parties, and how to get rid of them? The District Court ruled simply that the libellant could not proceed against all whom he had made parties, and left it to himself to select those whom he would pursue. He made his election, and then the court made the order which it did. This, we suppose, was in substance an amendment of the libel; and, if it was, no question can be made to it here.

The objection, that the libellant cannot proceed in the face of an obandonment to the underwriters, is without force. As owner of a steamboat employed in transporting goods generally, the libellant was a common carrier and bailee, and liable to the shippers. In the case of The Commander-in-Chief, above cited, this court intimated, that where the libellant was prosecuting for the benefit of other parties not named, as well as his own, it would be more regular that it should be so averred in the libel; still they overruled the objection for want of such an averment, observing that no inconvenience could result from the rule, as there was ample power in the court to protect the rights of shippers, who may intervene at any time before the fund is actually paid out of the registry. And, indeed, the specific defence, founded here on the dealings between the libellant and the insurers or owners of the cargo, is disposed of by the ruling of this court in the case of the Propeller Monticello v. Matteson, with which the bar is familiar.

The merits. It is impossible that a more ingenious argument could have been made on the evidence than has been. All that careful collocation of the facts, and skilful presentation can do, has been done. But we shall not respond largely to that sort of argument. The case is one of fact only; and where, on a deal of conflicting testimony, two courts from which appeals have been taken have decided in one way, this court will not easily reconsider. This court is already overburdened with business. It has more than it can do in passing upon the great causes which properly belong to it; upon those momentous questions which arise from our civil war; those great questions of national law which arise in time of peace; questions of the rights of foreigners; questions of the conflicting claims of States; of the effect of State laws and of State decisions upon rights claimed under the United States, and on interests which are supposed to be put beyond the reach of State legislation by the Constitution of the United States. Mingled with which come of necessity questions of commercial, social, domestic, and other law; all of which it must pass on; questions than which, when considered in their immense magnitude and number, it is impossible to conceive of any more various, greater, or of higher dignity.

With what propriety, then, is this court so constantly vexed with these questions of fact? called on to settle issues of ebrius vel non between two deck-hands of a Mississippi boat; and to announce to the bar of the civilized world its solemn judgment on the point, whether a half-tipsy sailor say or did not see, of a dark night, down a distant river, a particular signal, which another sailor, a little more or less tipsy than himself, raised or did not raise for him to look at? A common jury, it is no offence to this court to say, could decide the case as well. The District and Circuit Courts, which have more leisure to hear, and completer power to examine witnesses, better. The decisions are unintelligible when reported, and would be worthless if understood. Of what importance is it to the law as a science, whether, on a certain night, a certain boat-hand-as to whose having been intoxicated ten persons swear one way, and ten others swear another and opposite was-trimmed or did not trim his lamp-wicks in the way in which he ought to have trimmed them? or whether a second boat-hand shouted or did not shout as loud as he ought to have shouted, 'Halloa there! Take care!'? Who on earth but the parties to the very suit care for such decision when made? And of what interest even to them is an opinion which shows, though incontestably, its rectitude? The court has laid down principles, in accordance with ancient rules of law, that should keep such cases out of this place, and which quite relieve us from largely following the able arguments opposite, so far as they apply to facts only. The Ship Marcellus is in point. Grier, J., there declared, in behalf of the Bench, that any appellant coming here on cases of this sort has 'all presumptions against him.'

Reply: If the argument of the other side would have force in any case so long as statute gives appeals here as well as writs of error, it can have none in this case. The court below refused to hear us fully, because 'the case was one on which men might naturally form different conclusions;' and because, therefore, 'appeal' and not 'rehearing' was the proper remedy. We were sent to this court by one of its then justices specifically, because of the conflict of testimony, and the learned counsel would now send us out of it for the precise same reason. Certainly, we ought to be heard, and to have justice, somewhere. But between the upper and the nether courts, if such views as the opposite counsel would enforce prevail, justice would, in cases like the present, be surely ground to powder.

Mr. Justice GRIER delivered the opinion of the court.

The libel in this suit was originally against the steamboat Hill, and against the master, who was part owner, and, also, against the pilot. It was amended in the District Court by dismissing it as to the pilot, and sustained as against the vessel and the master, or owner. The allowance of this amendment was within the discretion of the court, and was very proper. The objection that a libel in rem against a vessel, and in personam against the owner, cannot be joined, was properly overruled; as it was in conformity with the 15th rule in admiralty as established by this court.

It has been objected here, that the allowance of the amendment was injurious to the sureties in the bond given for the property. But this objection is without foundation, as their liability was neither increased nor diminished. 'Every person bailing such property is considered as holding it subject to all legal dispositions of the court.'

It has been contended, also, that the right of the libellant to sustain this action ceased by his abandonment to the underwriters. The Circuit Court very properly ruled, that as the libellant was the owner and master of the steamer World he was the bailee of the cargo, and so responsible to the shippers or insurers for the safe transportation and delivery thereof, and to fulfil his obligations and secure his reward, he was entitled to possession, and might maintain an action for its destruction. 'The respondent is not presumed to know or bound to inquire as to the relative equities of parties claiming the damages. He is bound to make satisfaction for the injury he has done. When he has once made it to the injured parties, he cannot be made liable to another suit at the instance of any merely equitable claimant.'

The question of merits was the next question argued.

During the five years in which this case was pending in the District and Circuit Courts, more than a hundred depositions have been taken. In these there is the usual conflict of testimony which always attends such cases. The issue is one entirely of fact, and depending on the credibility of witnesses. The District and Circuit Courts, after patient investigation of the testimony, concur in the opinion that the libellant has fully established his case. The record contains the opinion delivered by the learned judge of the Circuit Court, which fully vindicates the correctness of his decree.

It would be a very tedious as well as a very unprofitable task to again examine and compare the conflicting statements of the witnesses in this volume of depositions. And, even if we could make our opinion intelligible, the case could never be a precedent for any other case, or worth the trouble of understanding.

It is enough to say that we find ample testimony to support the decision, if believed; and that we again repeat, what we have often before decided, that in such cases, parties should not appeal to this court with any expectation that we will reverse the decision of the courts below, because counsel can find in the mass of conflicting testimony enough to support the allegations of the appellant, if the testimony of the appellee be entirely disregarded; or by attacking the character of his witnesses when the truth of their testimony has been sustained by the opinions of both the courts below. Parties ought not to expect this court to revise their decrees merely on a doubt raised in our minds as to the correctness of their judgment, on the credibility of witnesses, or the weight of conflicting testimony. In the present case we see no reason to doubt the correctness of the decision of the Circuit Court, which is accordingly

AFFIRMED WITH COSTS.


text: Talk:Newell v. Norton and Ship/Opinion of the Court

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


text:
The Ottawa

APPEAL from the Circuit Court of the United States for the Northern District of Illinois in a question of collision at night, on Lake Huron, between the steam propeller Ottawa and the schooner Caledonia, and by which the schooner was sunk; the decree in the Circuit as in the District Court having been against the steamer as in fault.

The controversy was one chiefly of fact; whether, for example, there was any one at all on the steamer's deck about the time of the collision besides the wheelsman then steering the vessel; whether the steamer showed lights as required; what the courses of the two vessels had been, and how far they properly or improperly held them on their approach to each other, and some others not necessary, in view of the decision, to be mentioned. The testimony was conflicting and prolix; the cross-examination of one witness alone having extended to four hundred and thirty-two inquiries. The chief point of law disputed in the controversy and the matter therefore to which the reporter more particularly directs attention was apparently this: Whether, assuming that the master was on the steamer's deck after the vessels came into such proximity as required precautions, until the moment before the collision occurred-a matter about which there were doubts-he was a competent lookout within the decisions of this court; he having been, at the time, the officer of the deck, in charge of navigating her, and having been standing with the wheelsman in the wheel-house; a place which, on this steamer, the mate swore was the best place for a lookout to be, well forward, and giving an unobstructed view; and which the counsel for the owners of the steamer, exhibiting to the court a photograph, stated was less than twenty feet from the bow.

Mr. Dexter for the owners of the steamer; Mr. Proudfoot, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Ottawa


text: Talk:The Ottawa

title: Talk:The Ottawa


text:
The Ottawa/Opinion of the Court

Amended libel alleged that the appellee was the owner of the schooner Caledonia; that on the sixteenth day of September, 1860, she was engaged in prosecuting a voyage from Chicago to Buffalo, having on board a cargo of six thousand bushels of wheat, belonging to her owner; that, at eight o'clock in the evening of that day, when she was navigating in Lake Huron, eight miles northwesterly from Thunder Bay Light, she encountered the propeller Ottawa, bound up the lake, and that the propeller was so negligently and carelessly managed and navigated that a collision occurred between the two vessels, whereby the schooner, with her cargo on board, was sunk in the lake and lost.

Appellant, in his amended answer, admitted the collision and loss, but denied that the propeller was in fault, and averred as a distinct ground of defence that the collision occurred entirely through the incompetency of those of charge of the schooner, and in consequence of their carelessness and mismanagement.

Decree in the District Court was in favor of the libellant, and the same was affirmed on appeal in the Circuit Court; whereupon the owner and claimant of the propeller appealed to this court.

I. Most of the material inquiries of fact presented for decision are, as usual in this class of cases, involved in perplexing uncertainty on account of the conflicting nature of the testimony. Superadded to that difficulty, which experience shows is one generally to be expected in controversies of this character, the present investigation is greatly complicated and embarrassed by the unreasonable length of the examinations and cross-examinations of the witnesses, as exhibited in the record. Undoubtedly a party calling a witness, may, if he sees fit, examine the witness by specific interrogatories, instead of relying upon the general statements of witness, as made responsive to the oath under which he testifies; and it is equally clear that the opposite party may in all cases cross-examine the witness in respect to all the material matters disclosed in the examination in chief, but it is past belief that everything valuable involved in the right of cross-examination may not be secured without propounding, in a collision case, four or five hundred question to a single witness.

Cross-examination is the right of the party against whom the witness is called, and the right is a valuable one as a means of separating hearsay from knowledge, error from truth, opinion from fact, and inference from recollection, and as a means of ascertaining the order of the events as narrated by the witness in his examination in chief, and the time and place when and where they occurred, and the attending circumstances, and of testing the intelligence, memory, impartiality, truthfulness, and integrity of the witness; but a few questions, well directed to those several objects, are in general amply sufficient to effect all that can well be accomplished by the fullest enjoyment of that admitted right.

II. Embarrassed, however, as the investigation is by the complications and difficulties suggested, still there are some facts and circumstances having an important bearing upon the principal questions involved in the pleadings, which may be regarded as conceded, or as so fully proved that they are not properly the subjects of controversy in the case.

Seaworthiness of the schooner is not denied, and it is fully proved that she was well manned and equipped, and that the master, at the time of the collision, was in charge of her deck. Proofs are also entirely satisfactory that she had an able seaman at the wheel, and a competent lookout, properly stationed, forward of the windlass, having no other duty to perform, and at a place where there was nothing to obstruct his view.

Just before the collision the master was standing near the helmsman, but, when notified by the lookout that he discovered a light, he went immediately forward, in order to determine what, if anything, was necessary to be done.

Prior to six o'clock the schooner had been sailing on a course southeast by south, but, being well out in the lake, the master, as he states, changed her course at that hour half a point to the southward, and he adds that she had been sailing upon that course about two hours.

Evidence is full to the point that the schooner showed a proper light, and the master testifies in substance and effect that she held her course until the collision was inevitable. Careful examination has been given to the evidence on this last point, and it is not perceived that there is any good reason to doubt the truth of the statement.

Allegation of the libel, as to the time and place of the collision, is correct.

Doubt cannot be entertained but that the propeller was a seaworthy vessel, and it is satisfactorily shown that she was well manned and equipped.

Appellee insists that she was responsible for the consequences of the collision, because she was in fault in three particulars:

1. He insists that she had no proper lookout, as required by the decisions of this court.

2. That she did not show the signal lights, as required by law.

3. That she did not comply with rule of navigation, which requires that where a steamer and a sail vessel are approaching each other from opposite directions, or on intersecting lines, the sail vessel shall hold her course and the steamer shall keep out of the way.

1. Argument for the appellee assumes that there was no one on the deck of the propeller, except the man at the wheel; but the appellant insists that the master, also, was on deck, and contends that the master, under the circumstances of this case, was a competent lookout within the meaning of the decisions of this court. Strong doubts are entertained whether he was on deck at all after the vessels came into such proximity as required precautions, until the moment before the collision occurred; but in the view taken of the case, it is unnecessary to decide the point, as it is clear that if he was on deck, as is supposed by the appellant, still he was not a proper lookout within the requirement of the rules of navigation, as expounded by the decisions of this court.

Two objections are made to the master, as lookout, even admitting that he was on deck, and they are both well taken. Admission of the appellant is, that the master was the officer of the deck, and that he had charge of navigating the vessel, and the proofs are satisfactory that if he was on deck at all at that time, he was in the wheel-house with the man at the wheel. Steamers are required to have constant and vigilant lookouts stationed in proper places on the vessel, and charged with the duty for which lookouts are required, and they must be actually employed in the performance of the duty to which they are assigned. They must be persons of suitable experience, properly stationed on the vessel, and actually and vigilantly employed in the performance of that duty. Proper lookouts are competent persons other than the master and helmsman, properly stationed for that purpose, on the forward part of the vessel; and the pilot-house in the night time, especially if it is very dark, and the view is obstructed, is not the proper place. Lookouts stationed in positions where the view forward or on the side to which they are assigned, is obstructed, either by the lights, sails, rigging, or spars of the vessel, do not constitute a compliance with the requirement of the law; and in general, elevated positions, such as the hurricane deck, are not so favorable situations as those more usually selected on the forward part of the vessel, nearer the stem.1 Persons stationed on the forward deck are nearer the water-line, and consequently are less likely to overlook small vessels, deeply laden, and more readily ascertain their exact course and movement. Applying these rules to the present case, it is clear that the propeller did not have any proper lookout, and it will be sufficient to say that we adhere to those decisions without abatement or qualification.

2. Second objection urged by the appellee is, that the propeller did not show the signal lights required by law.

Proper signal lights as required on steamers are, a bright light forward, a red light on the larborad side, and a green light on the starboard side. Considering that the parties will not be benefited by an extended analysis of the testimony, it is not deemed necessary to do more on this branch of the case than to state our conclusions. Better opinion is, that the red light was burning dimly at the time of the collision, but that the other lights had ceased to burn so as to be visible to those on board the schooner. Tendency of the proof also is, that all the lights had been lighted at the usual hour; but that the white and green lights, either because the lamps were not well trimmed, or because the oil was poor, or from both causes combined, had gone out or burned so dimly as to answer no valuable purpose. None but the red light was seen by those on the deck of the schooner, and even that was not seen in season to afford any protection.

3. Third charge of the appellee against the propeller is, that she did not comply with the rule of navigation, which required her to keep out of the way of the schooner. Corresponding charge of the propeller against the schooner is, that she did not hold her course; but the latter charge cannot be sustained, because it is not supported by the weight of the evidence, except so far as it relates to the change made at the moment of collision, which is not a fault that will avail the other party.

Rules of navigation are obligatory from the time the necessity for precaution begins, and continue to be applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain; but they do not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally inapplicable to vessels of every description while they are yet so distant from each other that measures of precaution have not become necessary.

III. Theory of the appellant is, that the propeller was to the leeward of the schooner, and that she was sailing northwest. Assuming that theory, he contends that the collision could not have occurred as alleged in the libel; and it may be that the theory, as a mere abstraction, is correct; but the best answer to it is, that the collision did take place, and the schooner, with her cargo, was sunk in the lake. Taken as a whole, the proofs afford full satisfaction that the schooner did not change her course until all hope of avoiding the collision was gone.

Great conflict exists in the testimony as to the course of the propeller; but the best conclusion that can be formed from it is, that she was to the windward of the schooner. Both the lookout and the master of the schooner first saw the dim red light of the propeller nearly ahead over the starboard bow. Conceded fact is, that the propeller ported her helm; and, if so, she must have headed across the bows of the schooner. Confirmation of that view is derived from the manner in which the two vessels came together. Undisputed fact is, that the schooner, at the moment of collision, also ported her helm, doubtless with the hope of passing under the stern of the propeller; but the bowsprit, in a glancing blow, struck the larboard quarter of the propeller, which opened the starboard bow of the schooner, stove in the bow, tore off her headgear, split the bow open, opened the knight-heads, and broke the rail and stancheons on the larboard side. Weight of the blow was rather on the larboard side of the schooner; but the bowsprit, operating as a lever, opened the starboard bow. Injury to the propeller was on the larboard quarter, and it shows to a demonstration that the two vessels came together in the manner described by the witnesses of the libellants.

AFFIRMED WITH COSTS.

GRIER, J., assuming the facts differently, dissented.

title: The Ottawa/Opinion of the Court


text: Talk:The Ottawa/Opinion of the Court

title: Talk:The Ottawa/Opinion of the Court


text: Cincinnati City v. Morgan

title: Cincinnati City v. Morgan


text: Talk:Cincinnati City v. Morgan

title: Talk:Cincinnati City v. Morgan


text:
Cincinnati City v. Morgan/Opinion of the Court

By an act passed by the legislature of Ohio, 20th March, 1850, the city of Cincinnati was authorized to issue its bonds to the amount of $1,000,000, to be lent to the building of railroads terminating in the city, or to be subscribed to their capital stock, on a vote of the qualified voters of the city, and of the City Council. The Ohio and Mississippi was one of these roads. A vote was obtained in favor of this railroad company, agreeing to the issue of bonds to the amount of $600,000 of the city, to be secured by a mortgage upon such property of the company as the City Council should require.

The seventh section of this act of 1850 provided, in substance, as follows:

'That it shall be the duty of the said City Council, and it is hereby authorized, to contract with the said companies, to secure, by mortgages, transfers, or hypothecations of stock of said company, or by such other liens or securities, real or personal, as may be mutually agreed on, the payment of the amount of the principal of such bonds as may become due, and for the reimbursement of the interest upon the same, which shall have been paid by the city; and for the further purpose of the securing the city against all loss or losses which the same may suffer, whether by the payment of the said principal or interest, or any damages arising therefrom, that the above-described liens, mortgages, or other securities shall have priority or precedence of all claims or obligations subsequently contracted by such company, and over other liens, securities, or mortgages which were not duly entered into between the company and other persons, before the respective issues and loans aforesaid.'

The ordinance of the city in respect to the security for its loan, as above authorized, was thus:

'That before the bonds, or any part thereof, shall be delivered over to the said company, it shall mortgage, hypothecate, pledge, and deliver to the city, $1,000,000 of the capital stock of said company, under seal, and shall authorize the City Council to sell and dispose of so much of the stock as will realize the aforesaid sum of $600,000; said stock to be sold at such times, in such sums, and upon such terms as the City Council may determine; and appropriate the proceeds in such manner as the same may direct.'

The terms mentioned in this ordinance were assented to by the company, and a certificate was duly issued, stating that the City of Cincinnati 'is the owner of twenty thousand shares of the capital stock in the Ohio and Mississippi Railroad Company, transferable on the books of the company, at the Cincinnati office, upon surrender of this certificate.' The certificate was indorsed:

'This stock is issued, mortgaged, hypothecated, and pledged to the City of Cincinnati, as security for the loan of the bonds of the city for $600,000,' & c.

This certificate of stock was accepted by the City Council and deposited with the City Treasurer, and bonds of the city were soon after issued to the company to the amount of the $600,000.

Subsequently to this transaction the railroad company made different mortgages of their road and its fixtures, and a bill of foreclosure having been filed under one of them-the second-and the City of Cincinnati made a party defendant, the city put in an answer, alleging, among other things, that she had lent to this railroad company her bonds to the amount of $600,000, and had a lien on the road as security paramount to any mortgage. This was denied by the holders of the bonds under the second mortgage, and, whether the city had or had not such a lien, was the question.

To understand the argument made here by the city's counsel, and which sought to support the lien, if support was wanted, by reference to other statutes of Ohio, it may be necessary to add:

1st. That prior to the date of these transactions, or of the act of 20th March, 1850, there was a law in force in Ohio, known as the General Railroad Law. This law-the provisions of which, it was said, had been extended to the Ohio and Mississippi Railroad (originally incorporated in Indiana)-gave power, by its 13th section, to railroad companies to borrow money, and to execute bonds or notes therefor; and in order to secure the payment thereof, to pledge their property and income; 'provided,' the act went on to say, 'That the value and security of any liens, mortgages, or the stock held in or against such company by the State or the City of Cincinnati, should not thereby be injured or otherwise impaired.'

2d. That subsequent to the act of March 20th, 1850, an act of February 10, 1851, authorizing the city to subscribe to another railroad-the Cincinnati Western-was passed; which act contained, in one of its sections-the 15th-exactly the same language as has been presented, supra, pp. 276-7, as making the 7th section of the act of March 20th, 1850, now under consideration, but contained, in addition, the following as its 16th section:

'That the City Council of the City of Cincinnati shall not lend her credit or issue her bonds to this or any other railroad company, unless the private stockholders mortgage a sufficient amount of real estate, in addition to the road and other effects of said company or companies, as security for the lending of her credit or issuing of such bonds by said city.'

Certain other incidents of the case may be mentioned; as,

1. That the original proposition made by the City Councils to the people, to be voted on, was whether the city should issue the $60,000, to 'be secured by a mortgage upon such property of the company as the City Council shall require,' and that this was the question voted on.

2. That when, after the popular vote authorizing the loan of the city's credit, the city directed its president of council to execute, issue, and deliver the bonds to secure the said loan, it did so reciting the loan as one 'which shall be by mortgage on the said road.'

3. That subsequently to this date another ordinance was passed:

'That so much of the before-recited ordinance as requires the loan of $600,000 to said company, to be secured by a mortgage on said road, be hereby repealed; provided, that before the bonds, or any part thereof, shall be delivered over to said company, the said company shall mortgage, hypothecate, pledge, and deliver to said City of Cincinnati, one million of dollars of the capital stock of said company, under seal, authorizing the City Council to sell and dispose of so much of the stock as will realize the aforesaid sum of $600,000; said stock to be sold at such times, in such sums, and upon such terms as the City Council may determine, and appropriate the proceeds in such a manner as said council may direct; provided further, that said company shall oblige itself, by writing under seal, in case of failure to pay interest upon said loan, to transfer to said City of Cincinnati a sufficient amount of the capital stock of said company, with authority to sell the same, as will realize the amount of interest unpaid.'

The court below-considering that the pledge was but of certificates of stock, one of the forms of security allowed by the 7th section of the act of 20th March, 1850, and that neither the 13th section of the general law incorporating railroads, nor the 16th clause of the act of February, 1851, incorporating the Cincinnati Western Railroad Company, and which required a pledge of the private property of the stockholders applied to the case-decreed that the city had no lien whatever on any property of the railroad, except upon the stock pledged to it. And an appeal was now here.

Mr. Stanbery, for the city: Has the city a lien on the road in this case?

I. We submit that the 7th section of the act of March 20th, 1850, on its own face gives it. This section makes it the duty, and authorizes the City Council to secure the payment of the principal and interest of these bonds. The sole purpose of this section was security to the city for the bonds to be issued. The section does not stop with the clause, giving a choice as to the nature of the security. It proceeds to declare, that for the 'further purpose of securing the city' from all loss or damage, the security given shall have priority over all claims, liens, mortgages, or securities, subsequently created.

Effect must be given to this part of the section. It must be taken into the account and receive a construction; or, rather, to state the point more accurately, the whole section must be construed, and every clause be made to operate.

The council first fixed upon a mortgage on the road as the form of security, and the popular vote ratified the loan upon that basis; the company accepted the loan upon the same basis, and afterwards the council dispensed with security by mortgage, and accepted an hypothecation of stock. This was one of the forms of security named in the 7th section.

Will it be argued, that upon this change a lien upon the stock was substituted for a lien upon the road, and that to make the lien operate on the road also, under the subsequent clause, frustrates the election as to the form of security given in the first clause? or argued, that the priority of lien provided for in the last clause, means only a priority over the securities of a like kind with the one adopted under the first clause? This construction, if tenable, would, indeed, harmonize the entire section; but it is not tenable.

In the first place, there was no necessity for such a provision, for either form of security taken under the first clause would necessarily have precedence over a subsequent security upon the same subject-matter.

In the next place, that construction does not cover all the terms of the last clause, for the priority is not confined to other liens, whether like or unlike the security taken, but extends as well to all claims or obligations, without lien, subsequently contracted.

Undoubtedly, as to claims without lien, this clause gives to the city precedence over them all, not only as to the stock hypothecated, but as to all other property of the company. The clause does not apply merely to precedence over the thing pledged; for those creditors had only a right to look to so much of the property as was not pledged, or if to property incumbered, subject to the incumbrance.

There are other reasons why this construction cannot be allowed.

Let us first consider the subject-matter. It is a loan of the credit of the city in the form of bonds, payable as to principal at a distant day, and as to interest semi-annually. No money is lent. No debt arises in favor of the city and against the company in the beginning. The parties stand in the relation of principal and surety, and not of debtor and creditor. But whenever the liability should accrue, and the city be obliged to advance money upon the default of the company to meet an instalment of interest, a debt would arise for which the city would require prompt payment, or the means of enforcing prompt payment. Eventual indemnity, by the slow process of judicial proceedings, would not meet the emergency. It was, therefore, natural and proper that, in addition to eventual indemnity, provision should be made in some other form for prompt protection.

Now, consider in this light the various provisions made in this seventh section.

The council is, in the first place, required to take security for the payment of the bonds as they become due, 'and for the reimbursement' of interest which may have been paid by the city. It could not have been the intention of the legislature to leave the city with nothing to rely upon but personal security for a liability so large, and extending through a period of thirty years. Nor if the protection of the city was to be limited to the exact scope of the security to be taken, would we look to find so important a matter left wholly to the discretion of the City Council. But when we consider this clause as more especially intended for prompt protection-as for the reimbursement of interest paid by the city-then it seems reasonable, nay very wise, that full discretion should be left to the council to select, through the whole range of securities real or personal, that form which would be most ready and available. One can see, that for this purpose a pledge of stock, with power to realize by sale, is the most desirable and available form of security. There is an open market for it, though seldom for a large mortgage.

Next consider the phrase with which the second clause of the section commences, 'and for the further purpose of securing said city against all loss or losses.' This language carries the idea of a security additional to that provided for in the first clause. Is it satisfied by a construction which gives no further security? Or which merely declares the legal effect of the security already given? It comprehends all risks which the city may run upon the footing of its loan. It means full indemnity. Then follows, in language just as ample and as comprehensive, the provision for such indemnity. This is a priority or precedence in favor of the city, from the date of the loan or issue of bonds, over all other parties and all other forms of security subsequently contracted. It is a priority from the date of the 'issues and loans,' not from the date of the particular security. The actual loan or issue of credit is the very thing covered by the indemnity and upon which the indemnity comes into operation. This construction is the only one which gives effect to the whole section, and at the same time leads to no repugnancy, and to no superfluous or illusory results.

It would seem that the City Council understood the section according to this construction. They first elected to take security by a mortgage of the road, and to this the company assented. Then, so far as appears upon its own motion, the council required an hypothecation of stock rather than a mortgage. Undoubtedly, as a means to reimburse the city promptly for advances in payment of interest, the substituted security was the best; but, as a permanent fund to hold for eventual indemnity against the payment of the principal to fall due after the lapse of thirty years, it was wholly untrustworthy, and subject to indefinite depreciation by the intervention of subsequent liens.

The City Council, it must be remembered, were exercising a strict statutory authority. They could dispense with nothing required by the statute, and exercise no discretion except that conferred by it. They could do nothing without the popular vote and do nothing contrary to it. But the popular vote authorized a loan with security by mortgage of the road. The exact question submitted and voted upon was, whether the city should issue the $600,000 to be secured in this way. The railroad company on its part expected also to give a mortgage. Now if so construe this section as to hold that after the popular vote in favor of a loan which gave a lien on the road, that lien was lost by the act of the council in the substitution of another form of security, we take from the people who incur the liability the protection upon which they relied, and allow these public agents to commit a fraud on their constituents.

II. The 13th section of the General Railroad Law, then in force, supports our idea. The reader will please to turn back and read the langauge of its proviso, at page 278. Does he not perceive, on reading it, that the legislature intended to guard the interest of the city as carefully as that of the State, and to preserve the value of the stock held in or against a company, by either the State or the city, from loss by subsequent liens? Stock held against a company, in contradistinction to that held in a company, can only mean stock held as a pledge or security, precisely as we assert that the stock is held by the city under the pledge in this case. If this proviso is operative, it must follow that the city stands first; for, to postpone it to the subsequent mortgages, not only impairs but destroys the value of the stock as a security. The reason for this peculiar favor to the city is evident. This city, the great centre of population and wealth, to which nearly all the roads of the State tended, and where a great number of them terminated, required such protection from the magnitude of the liabilities it would be expected to incur.

The 16th section of the act 'to incorporate the Cincinnati Western Railroad Company,' and authorizing the city to subscribe to it, passed February 10, 1851, and to whose language the reader will also turn back, is even more to our purpose. It requires the private stockholders to mortgage a sufficient amount of real estate, in addition to the road and other effects of their company, as security for the lending of the city credit.

The point which we make upon this act is, that it gives us a legislative construction of the 7th section of the act under which our loan was made. It stands free from doubt that the legislature considered the 15th section of this act identical with our 7th, as giving the city all the corporate security which could be given. But, beyond that, and lest it all might not give the full indemnity that was required, the private property of stockholders was also pledged. The individual security is declared to be cumulative, 'in addition to the road and other effects of the company.' Does not this carry irresistibly the idea of provision already made for a lien on all the corporate property, road, and everything else?

The only difference between the two acts is this, that, by the act of 1850-our act-the legislature was satisfied with ali the corporate property as a measure of indemnity; whereas, in the act of 1851, they were not satisfied with that alone, but required individual property besides.

III. The city has a lien upon the other corporate property through the pledge of stock.

When the stock was hypothecated, all the property of the company was free from any other pledge or incumbrance. Suppose at that time, and before any sale of the stock under the pledge, the company had been forced into liquidation-certainly the city would have stood in priority over stockholders-it would then have a priority not incident to common stock. It may be answered to this, that the lien would then arise upon the debt and in favor of the city as a creditor merely. But take it that other creditors were to be provided. for. Would the city be entitled to no priority over them upon the footing of the pledge?

A surplus remaining after the mortgages are satisfied, or over property, if there is any, not included in those mortgages, would have no beneficial results. It is clear that if the mortgages are to be first satisfied everything will be swept away. The city claims, however, under this point a reversal, on the ground that the city stands now, as it stood when the pledge was made, prior in time and prior in lien upon the corporate property, to all other incumbrances. We assert that, under the circumstances of this pledge, that is its scope and effect, aside from the further provisions contained in the 7th section giving full indemnity; or that such is the effect of the pledge, as a pledge, according to all the provisions of this section, which, quoad hoc, give it that effect.

Finally. What is the stock of a road or of a bank but the effects and property of the road or bank? If the road or bank is prosperous, and makes great profits, those profits pass to the holders of the stock; they are accretions to or on their property. The shares are but the proportions in which as whole is held.

Messrs. Coffin, Evarts, and T. G. Mitchell, contra: If there exists a lien on the road in this case, it is one of a new kind; a lien not by statute, nor by common law, but 'a lien by argument.' And though the bar generally would admit, if 'liens by argument' can exist at all, that Mr. Stanbery is as able to create a good one as any man living, we must deny even to him the privilege of creating for them that which the parties had no design of creating for themselves.

The act of March 20, 1850, authorizes the city to contract with the railroad companies to which it may make loans, in reference to the character of the security to be given for them; and enumerates mortgages, transfers, or hypothecations of stock, and other liens and securities, real or personal, as those which may be thus agreed upon. This provision, it is conceded, would be sufficient to vest in the City Council the complete control of the subject of security but for the subsequent clause of the same section, enacting that the liens, mortgages, or other securities, so received, shall have priority over all obligations subsequently contracted by the companies, and over all other liens not acquired by other persons, prior to the issue and loan by the city of its bonds; which latter clause, it is asserted, makes the loans of the city, no matter what specific security may have been agreed upon, liens upon all the property of the respective companies, from the dates of the several loans. The construction would make the legislature provide that the city might elect to take whatever security it should select, real or personal, by pledge of stock, mortgage of specific property, or of any other description, but that the result must be in every event the same.

The statement of this argument appears to carry with it its refutation; and nothing but the eminence of the counsel by whom it is advanced entitles it to consideration.

The construction can be sustained only by rendering the whole provision as to the discretion vested in the City Council substantially inoperative, in order to rid the subsequent clause of the charge of being useless. In any event, too, it must be borne in mind that the clause relied upon does not in terms, nor even by implication, provide that the claims of the city shall be liens upon the roads of the companies, nor upon any other specific thing whatever. The law provides that the City Council may stipulate for such security as it pleases; and it then, perhaps unnecessarily enacts that whatever security it does take shall have priority over all other subsequent claims. It certainly does not provide that any security, by personal indorsement, or by pledge of stock, shall operate as a mortgage upon a railroad. And it would be an extraordinary judicial interpretation which would inject such a provision into the act, in order to shield a portion of its language from the charge of having been unnecessarily employed.

We all know that it is not an unusual thing to find in the legislation of this country unnecessary provisions and useless repetitions. And while the general principle of construction relied upon in this case may be admitted to be correct when there is a proper occasion for its application, the court-in order to avoid the conclusion that the General Assembly of Ohio has enacted that a lien shall have priority over subsequent liens-will not decide that nothing was meant by the expressed provision vesting the City Council with an absolute discretion; nor that when there was an intention to give a specific lien upon the tracks of railroad companies and their appurtenances, it was not thought necessary to mention, or even to allude to, that species of property.

The idea is presented by opposite counsel, though not largely or very specially enforced, that whatever discretion was vested in the City Council was exhausted by the passage of the resolutions (see supra, page 279) submitting the question of loans to the voters of the city; that the acceptance by the railroad company of the terms of these resolutions, one of which, it is argued, stipulated for a mortgage of the road as security, completed a contract for a lien upon the road; and that after the vote of the people, and the completion of a contract in pursuance of it, the City Council had no power to change the security.

But how can the power, explicitly conferred upon the City Council, to decide upon the security to be exacted, be exhausted before the passage of the ordinance for the issue of the bonds to be lent? It was made the duty as well as the right of the council to decide upon this question; and even if there had been submitted to the people the question of making a loan, on the faith of a particular indemnity, the council would by no means have precluded itself from insisting upon what was deemed a better security, before making the loan. If the question were open, whether the security taken was in fact superior to the one originally proposed, it would not be difficult to show that it at least was not inferior; since a mortgage upon a merely hypothetical road, would not only be useless until the road was constructed, but would itself be an obstacle in the way of such construction. But that question is not open. The properly constituted authorities of a municipal corporation, as well as the managers of any other corporate body, may bind the corporation by acts in contravention of their plain duty, and even in direct violation of law, whenever they have any power to act at all in the premises. 'Where the directors of a company,' says an English case, 'do acts in violation of their deed, in a matter in which they have no authority, such acts are altogether null and void. But when acts to be done are within the power and duty of the directors and are neglected, and thereby third parties are damaged, neither a court of law nor of equity, will allow the company to take advantage of that neglect. . . .. If a company neglect a form or an obligation, which they could and ought to perform, they cannot afterwards raise an objection of that want of form, as against a person with whom they have been dealing.'

If it were true, however, that the City Council had no power to dispense with the original provisions of its resolutions, and that those resolutions required from this company a mortgage, and that the city remained entitled, as against the railroad company, to the mortgage at one time contemplated, the fact would nevertheless remain, that no mortgage was ever executed in pursuance of this agreement; and no claim based on one could be asserted, as against the holders of mortgages regularly executed. The city, of course, is not here attempting to deny the validity of its bonds.

II. Support of the kind desired by the city is thought to be derived from other statutes; the general railroad law, for example, and the act to incorporate the Cincinnati Western Railroad. This mode of interpreting statutes,-a mode by which one statute is made to mean, that which some other, and not it, enacts is a dangerous mose of expounding laws. As a means of interpreting any act, it is hardly allowable. With an example set, we may, however, perhaps refer to statutes to show that when the legislature of Ohio has meant to create a specific lien on anything, it knew the proper words by which to do it. Thus by an act of March 24, 1837, 'To authorize a loan of credit by the State of Ohio to railroad companies,' &c., the legislature, after enacting that certain railroads shall be entitled to a loan of credit from the State equal to one-third of their authorized capital, and that certain officers of the State shall deliver negotiable scrip or transferable certificates bearing interest of the State to every such company, goes on to say:

'The receipt of such scrip, or any portion of scrip, by any railroad company, shall operate as a specific pledge of the capital stock, estate, tolls, and profits of such railroad company, to the State of Ohio, to secure the repayment of the sums advanced.'

Indeed in all cases where lien by statute is meant to be created the legislature has taken care to express the intention to create the lien in clear and explicit terms. For certain trespasses committed by the navigators of canal-boats, the party injured, for the damages sustained 'shall have a lien' upon the boat. For labor or materials furnished, &c., the party 'shall have a lien.' Mutual insurance companies insuring buildings, for payment of the assessments, 'shall have a lien thereon.' Ships and steamboats are made liable, &c., and 'such liability shall be a lien thereon.' 'The lien of the State,' for taxes on real estate, &c.; and so of many others.

III. As to the stock. Mr. Stanbery argues that when the stock was pledged all the property of the company was free, and then, if the company had been forced into liquidation, that the city would have stood in priority over stockholders,-it would then have had a priority not incident to common stock. This we must deny. The city we submit never had priority over other stockholders; it never had any other right than that common to all the stockholders, and if the company, after obtaining the $600,000 from the city, had been unable to build to road and had been dissolved and a distribution of the assets had taken place, the city would have had to suffer like other shareholders.

Finally, the distinction between the property of the corporation and the rights of the stockholders in the corporation sufficiently settled is disregarded by the last head of argument by the other side.

A corporation may be seized of of acres of real property; deal largely in real estate; possess goods and money to any amount, but no individual stockholder has any direct interest in the corpus of the property itself. The property of the corporation belongs to it, and to it only. The interest of the stockholder is a share of the net produce of all the property of the corporation, brought into one fund. The stockholders are as distinct from the corporation as any other persons who are not stockholders. The money obtained from the stockholders belongs to the corporation itself; the stock to the shareholders.

Railroad shares are not an interest in lands. Whether they are goods within the statute of frauds or not, the cases do not agree. They resemble choses in action; have been held to be choses in action. They are in truth, merely, the evidence of a right to have a share of the profits of the business of the corporation.

The city, then, by a mere pledge of these shares of the stock of this company, obtains no lien upon the railroad.

Mr. Justice NELSON delivered the opinion of the court.

There is no doubt but that every part of this transaction was within the competency of the City Council on the one side, and the railroad company on the other, as derived from the act of the legislature of Ohio, already referred to, of the 20th March, 1850, and was valid and binding upon both the parties. The seventh section of this act confers the authority in express terms. The City Council is authorized to contract with the railroad company, to secure, by mortgages, transfers, or hypothecations of their stock, or by such other liens or securities, real or personal, as may be mutually agreed upon, for the payment of the amount of the principal of the bonds as they become due, and for the reimbursement of any interest that might be paid by the city.

The question in the case is, what are the rights acquired by the city, on the one hand, and obligations assumed by the railroad company, on the other, by this arrangement?

If we look simply to the contract between the parties, it is impossible to entertain any doubt about them. The city holds $1,000,000 in the stock of the company, as a security for the loan of $600,000 in city bonds, with a power of sale of the stock upon the terms mentioned. The whole transaction consists in a loan of bonds and a pledge of stock.

It is argued, however, that this seventh section of the act of 1850 impresses upon the transaction an effect and operation over and beyond the mere rights and obligations arising out of the contract; that the section transmutes the pledge of stock into a lien or mortgage upon the road and fixtures of the company, and makes it not only a charge upon them, but a charge prior in date to the second, and even the first mortgage; that, in effect, the pledge overrides all liens or incumbrances upon the road and fixtures, whether prior or subsequent in time, and postpones them to this alleged statute security of the loan of the city bonds. Certainly a statute that can have such a peculiar and strikingly inequitable effect and operation, should be very explicit and positive, in order to obtain the assent of a court of law or equity.

The lien is supposed to be given by the latter clause of the section, which is, in substance, as follows:

'And for the further purpose of securing said city against all loss or losses which the same may suffer, whether by payment of the principal or interest, or any damages arising therefrom, that the above liens, mortgages, or other securities shall have priority or precedence of all claims or obligations subsequently contracted by such company, and over other liens, securities, or mortgages which were not duly entered into between said company and other persons, before the respective issues and loans.'

It will be remembered that the first clause in the section gave to the City Council an option as to the security they might take for the advance of the bonds. They might take mortgages, or hypothecations of stock of the company, or such other lien or security, real or personal, as the parties should mutually agree to between themselves. The liens and securities, therefore, real or personal, that the City Council might require, depended upon their own views of what would be best for all the parties interested in the enterprise of building the road. They could have exacted a mortgage upon the road or fixtures, or both, or be satisfied with personal security, such as the hypothecation of stock. They did, at first, decide in favor of a mortgage on the road, but soon afterwards changed their opinion in favor of the hypothecation of stock-exacting a $1,000,000 of stock for the $600,000 in their bonds. Now, 'the above-described liens, mortgages, and securities,' referred to in the subsequent clause of the section, and to which priority and precedence are given over claims and obligations subsequently entered into, is to be taken distributively; that is, if the City Council should stipulate for a lien by way of mortgage, upon the road, or upon personal property belonging to the company, or which might be acquired in the future, such liens or mortgages should have priority and precedence over claims and obligations subsequently contracted by the company.

The only answer to this view is, that it makes the clause a work of supererogation, as this would be the legal effect of the lien itself. That is true. The clause would be but declaratory of the law as it stood. This, however, is not a strange circumstance in legislation. A large portion of the modern codes is but declatory of the common law as expounded by the courts. We prefer this interpretation to the one that gives a lien against the stipulations of the parties, and where both were free to enter into them as authorized by a previous clause of the same section. Under this liberty, given to the City Council and the company, the former rejected the lien upon the road by mortgage, preferring the personal security by a pledge or hypothecation of the stock.

The first clause of this section would be quite as idle and absurd a piece of legislation, which conferred upon the parties the authority of agreeing upon their own terms as to the nature and character of the security for the loans, as the latter, if, by the latter clause, whatever might be the security agreed upon, it must operate as a mortgage on the road, and have precedence over all others. Why give this choice of securities, if this would be the result? There was no necessity to stipulate for a mortgage on the road, if the statute gave the lien without it; nor propriety or sense in the choice between a mortgage and the pledge of stock, if a lien on the road followed either security.

The thirteenth section of the general law incorporating railroads, referred to as helping out this lien, we think, received its proper answer in the court below, as not applicable to this company; and the same in respect to a clause in the act of February 10, 1851, incorporating the Cincinnati Western Railroad Company.

We think the decree of the court below, against the claim of the city, was right, and should be

AFFIRMED.


text: Talk:Cincinnati City v. Morgan/Opinion of the Court


text:
Havemeyer v. Iowa County

THE constitution of Wisconsin, adopted in 1848, provides that no general law shall be in force until published; and an act of 1852 makes it the duty of the secretary of state and the attorney-general to divide all the laws passed by the legislature into two classes, and directs that each class shall be published in a separate volume; that the first class shall include laws of a general nature; the second class all laws which are not included in the first class; and that 'the title-pages of the respective volumes shall express whether they contain acts of a general nature or the private and local acts,' & c.

Subsequently to the passage of this act of 1852-that is to say, in March, 1853-the legislature of Wisconsin passed an act authorizing counties through which a certain railroad should pass Iowa County being one of the counties-to aid its construction by subscribing to its stock and issuing bonds of the county to pay for it. But by the terms of the act, no bonds were to be issued except a majority of the electors should authorize the issue by vote at an election, the mode of holding which and the duties of the county officers in regard thereto were prescribed in the statute.

This act of March, 1853, coming, soon after its passage and in ordinary course, before the secretary of state and attorney-general for classification, they decided that it was not an act of a general nature, but was a local act, and classified it accordingly. No volume containing the act was published till October, 1853.

Between these two dates-and between the time, of course, when the secretary of state and the attorney-general classified the act as a local act, and the time when the act was 'published' in a volume-the election, which the act itself authorized, was held, and the bonds were issued by the county. A number of them passed into the possession of one Havemeyer, and the interest on them being unpaid, he now brought debt in the Circuit Court of Wisconsin to obtain payment of it.

On the trial, the judges of the Circuit Court were divided in opinion, and sent here a certificate of division accordingly, on the following questions:

1. Whether the act of March, 1853, authorizing the subscription, and under which the bonds were issued, is a 'general law' within the meaning of the constitution of Wisconsin?

2. Whether the said act, not being published as a general act, and having been first published, after its passage, in the volume of local and private acts, in October, 1853, and after the issuing of the bonds, is not such an exercise of power by the State government or legislature, showing that the act is not a general act, and is binding on the courts?

3. Whether, if the said act is such a general law, any act or omission of the said county, its officers or electors, short of an election under the act, after the act was published in October, 1853, will render the bonds valid, or estop the defendant from questioning their validity in the hands of bon a fide holders?

The case came here, of course, under the act of Congress of 29th April, 1802, which authorizes a decision of this court upon it, 'whenever any question shall occur before a Circuit Court upon which the opinions of the judges shall be opposed,' and a certificate of it is sent up.

There were no recitals on the bonds, and the record disclosed no great deal more than the act authorizing the election, subscription, issue, and the fact that these had all been made, and that Havemeyer was owner of the instruments now due and unpaid.

The difficulty of resolving the question below was caused in part, perhaps, from a conflict in the decisions in the Supreme Court of Wisconsin, as to the character of the act of March, 1853, or of others just like it. The late decisions of that tribunal, beginning with State v. Leon, A.D. 1859, followed by several others afterwards, held the acts to be general laws; herein departing from the view taken, A.D. 1858, in Hewett v. The Town of Grand Chute, where a contrary idea was assumed as of course. And how far this departure from precedent was owing to a truer conception of the nature of general and particular laws, and how far to the fact, that the judiciary of Wisconsin was a body elected by popular suffrage at short intervals, and which might have come to the bench suffused with the feelings and ideas and wishes of a constituency wishing to disown an obligation which it had been found much easier to contract than to pay, was a matter not seen perfectly alike by all sides.

Mr. M. H. Carpenter, for Havemeyer, holder of the bonds.

The first and second points may be argued together. The act authorizing the subscription is not a general law, and does not require to be published in order to be valid. The distinction was long since truly taken by an authoritative writer of the English law,-a no less authority than Chief Baron Gilbert. Under the title of 'General and Particular Laws,' he says in his book on evidence:

'The distinction between a general and a particular law is, whatever concerns the kingdom in general, is a general law; and whatever concerns a particular species of men, or some individuals, is a special law.'

It is impossible to cite higher authority, though here found in a text-book, and unnecessary, therefore, to cite other. The same distinction, however, it may be said, runs through all judicial decisions. It has been declared in Wisconsin itself, and nowhere more emphatically. In Hewett v. The Town of Grand Chute, decided in 1858, long after these bonds had been sold, the question was not even thought of being raised. The action was on bonds issued, by the town, in pursuance of an act almost identical with this one. The question was, whether, being a private act, the act was properly pleaded? That it was a private act, no one was hardy enough to deny. The difficulty of the case would have disappeared had the act been a public one. The Supreme Court of Wisconsin say, and this court will specially note their language:

'The cause of action is founded upon a private statute; or rather upon certain instruments or contracts in writing, which derive their validity from such private statute. By the common law it was necessary to set out such statute in the declaration, otherwise the court would not take notice of its provisions: unlike, in this respect, a public statute, of which the court was bound to take judicial notice, though the latter were not pleaded. But section sixty-nine of the Code of Procedure provides as follows: 'In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.' In this case the plaintiff in his complaint did refer to the statute from which his right was derived, by reference to its title and the day of its passage, and he thus brought the whole statute within the judicial knowledge of the court,' &c.

This view-a unanimous one of the old Supreme Court of Wisconsin-the view also taken previous to it by the secretary of state and the attorney-general-remained unquestioned and without doubt as to its being true law, until 1859, when the tax-payers woke up to the truth that it is easy to contract debt, but not always easy to pay it, and a majority of our Supreme Court,-three judges elected by the people-discovered in State v. Leon, the saving fact that such statutes are of a 'general nature;' declaring a few years later that an election before the publication authorizing the issue, was 'an idle act, wholly unauthorized and of no importance whatever.' This departure from precedent, is the consequence of a judicial tenure for less than good behavior; a bench of justice elected as that in Wisconsin, at short terms, by general suffrage.

title: Havemeyer v. Iowa County


text: Talk:Havemeyer v. Iowa County

title: Talk:Havemeyer v. Iowa County


text:
Havemeyer v. Iowa County/Opinion of the Court

But it is our privilege to come to this tribunal, where the arbitrium popularis aurae is unknown, and which neither takes up nor lays down the scales of justice at its command. To this court, then,-this 'more than Amphyctionic council,'-we appeal. We rely upon the important doctrine here asserted at December Term, 1864, in Gelpcke v. The City of Dubuque. The court in that great case,-argued thoroughly, deliberately considered, solemnly adjudged,-says:

'The sound and true rule is, that if the contract when made was valid by the laws of the State as then expounded by all departments of the government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of the legislature, or decision of its courts altering the construction of the law. The same principle applies where there is a change of judicial decision as to the constitutional power of the legislature to enact the law. To this rule, thus enlarged, we adhere. It is the law of this court. To hold otherwise, would be as unjust as to hold that rights acquired under a statute must be lost by its repeal.'

Our case falls within this principle. The bonds were issued in 1853, were disposed of, and were circulating in the market with full approbation of the legislature; the people of the county; every department, including the judicial tribunals of the State, until the year 1859; and during all these years, in which the bonds were made and sold, they were valid and legal contracts, and would have been enforced by our State courts, upon the ground that the acts authorizing their issue were private and local laws and were in force from their passage without publication.

It is unimportant in view of the decision of this court in Gelpcke v. Dubuque, whether the late decisions of our State court give or do not give the sounder construction of our constitution. In subsequent contracts this court may regard them as giving that which is the sounder; but the action of the State, in its legislative, administrative, and judicial departments, during the period of the making and negotiating of these bonds, must furnish the rule to be applied in all suits founded upon them, whether, in the opinion of this court, that action was right or wrong. It was the law of the comtract and cannot be changed without destroying the obligation of what, when made, was valid and binding.

3. Assuming, as we do, that the court must take the view which we present on these two points, we are not solicitous as to the answer which it may give on the last certified. If any answer is given, it must follow the answer to the others.

Mr. Ryan, contra: Mr. Carpenter refers to the distinction which has passed into technical law between general laws and particular or special laws. But the act of 1852, directing a classification, does not use the terms 'general law,' but uses another expression, 'acts of a general nature,' which it distinguishes from 'private and local acts.' This shows that it was not the intention of the legislature to classify its statutes by their legal character, but according to the public interest in having access to them. The first class is to contain all 'acts of a general nature,' but not all 'general acts.' The second class is to contain all general acts which are local, all charters which are public, and all private acts. It is inconceivable how a municipality, with a changing population, amounting from hundreds of political units to hundreds of thousands, and capable of including, and almost inevitably including, property of strangers affected by all legislation having relation to it, could be bound by a private act. If the act before the court can be dealt with as a private act, it is not seen on what distinguishing principle, absurd as the proposition is, all municipal law might not be found in private statutes.

The counsel would seem to rely on the classification made by the secretary of state and the attorney-general, which two officers regarded the act as one of a private nature, and classified it accordingly. But the question whether a statute is public or private, is judicial. No question of interpretation is more purely so. The constitution of Wisconsin, in common with most of our American constitutions, exhausts the judicial power; and it is not competent for the legislature to vest it in persons or officers, other than such as the constitution prescribes. Here, the duty of classification is given to ministerial officers. And their action is not only not binding, but is of no weight in the courts. It is for the judicial department to declare their acts right or wrong; not for them to impose judicial construction upon the courts.

Confessedly, every decision in the highest courts of Wisconsin since the case of State v. Leon, including that one, has been that these acts are general laws. In Hewett v. The Town of Grand Chute, whose language is extracted and presented as conclusive on the other side, and to which opposite counsel invites specially the court's attention, the matter was not in issue. Attention was not directed to it. Assuming the act to be a private one, the court held it to be rightly pleaded. That is all. The decisions then are unbroken.

There is a uniform and settled rule of adjudication upon the constitution and laws of the State; followed by all the courts of the State, and, in the State courts, recognized and admitted by the bar of the State.

In questions of State institutions and policy, not conflicting with the Federal Constitution, the several State courts are the appropriate tribunals to give the rule of decision; and this court has, therefore, from the earliest times, with high judicial comity and political sagacity, followed the rule of State decision upon State statutes whenever such a rule was to be found clearly established. 'This court has no authority,' was the language of a case from Pennsylvania, 'to revise the act of that State upon any grounds of justice, policy, or consistency to its own constitution. These are concluded by the decision of the public authorities of the State.' The quotation is the law of our controversy. And it will be a calamity, not only to the judicial, but to the political history of the country, if time should witness the departure of this court from its ancient practice of just and conservative forbearance, and its regard of the State rule of decision on questions of purely State law. With this longsettled doctrine of the court the action of the people and courts of Wisconsin is not open for argument. It is enough that the people of Wisconsin have formed their constitution as they have, and that the Supreme Court of the State interpret it as they do. That is their right solely. The State having been admitted into the Union under a constitution approved by Congress, and not repugnant to the constitution or laws of the United States, no department of the Federal government has power to set it aside, to treat it as a nullity, or to destroy it by interpretation, in matters properly subject to it.

The third question certified, is abstract. It calls for the opinion of this court, whether any act or omission of the county, its officers, or electors, under the condition stated, could render the bonds valid or estop the defendant. If any such act or omission could have such an effect, that would depend upon the character of the particular act or omission, the time of its occurrence, the persons by whom and with whom done or omitted and their authority, and generally the circumstances under which done or omitted. All these conditions rest, in the question, in supposition. There are no recitals in the bonds themselves. There is therefore nothing in the record bearing on this question. The record discloses only the facts of the election, the execution of the defendant's bonds, and the exchange or issue of them. It was not contended in the court below, and it is not here, that these facts have any tendency, of themselves, to render the bonds valid or to estop the defendant from questioning their validity, if the act was not in force. The question certified did not 'occur' in the court below, but only suggested itself as something which might occur; it did not meet the judges, and was not involved in any decision they were called upon to make. It is not an occurrence, but only a supposition, and not within the act of Congress. The court below, therefore, had no jurisdiction to certify it here; and this court has no jurisdiction to decide it.

Mr. Justice SWAYNE delivered the opinion of the court.

In the view which we have taken of the first two questions which are presented by the certificate of division for our consideration in this case, they may be properly considered together. They are:

1. Whether the act in question is a general law within the meaning of the constitution of Wisconsin.

2. Whether the act not being published as a general act, and having been first published after its passage in the volume of local and private acts, and after the issuing of the bonds, is not such an exercise of power by the State government or legislature, showing that the act is not a general act, as is binding on the courts.

The secretary of state and the attorney-general decided that the act was not a general law, but a local act. This decision, as to the character of the act, was made by those upon whom the law devolved that duty. It is not suggested that the decision was not fairly made, nor is it denied that it was in accordance with the rule which has prevailed down to that time, and which prevailed subsequently until the Supreme Court assed upon the subject, in the case of the State v. Leon, which was decided in the year 1859.

This action is conclusive as to the executive department of the government prior to that period, and it is entitled to the greater weight from the fact that the highest law officer of the State participated in the decision.

The subject came incidentally under the consideration of the Supreme Court of the State, in Hewett v. The Town of Grand Chute. The question in that case was, whether a statute, in all respects identical with the one under which these securities were issued, as regards the questions before us, was pleaded as a private act should be. The question whether it was a private act was not made in the case. That was impliedly conceded by the counsel on both sides. The language of the court in this case has been quoted and commented on at the bar. We need not repeat it. It presents a clear judicial recognition by the highest court of the State in accordance with the previous determination of the executive department. The executive and judicial departments were in harmony upon the subject. This case was decided in 1858. It shows that understanding of the bar and the bench down to that time.

Prior to that period no intimation had been given by any department of the government that such statutes were to be regarded otherwise than as local in their character, and broadly distinguished from general laws within the meaning of the constitution.

The subsequent adjudications in the State v. Leon, decided in 1859, and the cases which followed it, hold that such statutes are 'of a general nature,' and have no validity until published. But being long posterior to the time when the securities were issued, they can have no effect upon our decision and may be laid out of view. We can look only to the condition of things which subsisted when they were sold. That brings them within the rule laid down by this court, in Gelpcke v. The City of Dubuque. In that case it was held, that if the contract, when made, was valid by the constitution and laws of the State, as then expounded by the highest authorities whose duty it was to administer them, no subsequent action by the legislature or judiciary can impair its obligation. This rule was established upon the most careful consideration. We think it rests upon a solid foundation, and we feel no disposition to depart from it.

Whether the statute here under consideration is intrinsically general or local in its character, is a question which we have not found it necessary to consider.

The third question presents merely an abstract proposition. No facts are disclosed in the record which show that it has arisen or can hereafter arise in the case. Under such circumstances it is the settled practice of this court to decline to answer. It is necessary that the question should involve a distinct legal point, and that sufficient facts should be set forth to show its bearing upon the rights of the parties. In this case all the facts relied upon as operating to ratify should have been set forth. Any point of disagreement between the judges relating to the subject would then have appeared in its proper light and could have been definitely answered. As the question is presented the answer, if given, would be equally general, and, like the question, a mere abstraction, which could subserve no useful purpose in the further progress of the cause.

The answer to the first and second question certified up will be that, under the circumstances, the statute referred to must be held in this case to be a local act, and not a general law.

To the third question, for the reasons stated, no answer will be given.

ORDER IN CONFORMITY.

[See, on the last point of this case, supra, p. 250, Daniels v. Railroad Company.-REP.]


text:
Page:Cournot Theory of Wealth (1838).djvu/34

 20 Finally, there are some circumstances which may make it certain that relative or apparent movements come from the displacement of one body and not of another. Thus the appearance of an animal will show by unmistakable signs whether it is stopping or starting. Thus, to return to the preceding example, experiments with the pendulum, taken in connection with the known laws of mechanics, will prove the diurnal motion of the earth; the phenomenon of the aberration of light will prove its annual motion; and the hypothesis of Copernicus will take its place among established truths.

8. Let us now examine how some considerations perfectly analogous to those which we have just considered, spring from the idea of exchangeable values.

Just as we can only assign situation to a point by reference to other points, so we can only assign value to a commodity by reference to other commodities. In this sense there are only relative values. But when these relative values change, we perceive plainly that the reason of the variation may lie in the change of one term of the relation or of the other or of both at once; just as when the distance varies between two points, the reason for the change may lie in the displacement of one or the other or both of the


text: Talk:Havemeyer v. Iowa County/Opinion of the Court


text: Category:Cats

title: Category:Cats


text:
Mining Company v. Boggs

BOGGS, lessee of Fr emont, brought a suit in one of the inferior State courts of California against the Merced Mining Company, for the possession of certain mineral lands, with the mines therein, situated in Mariposa County.

The case, according to a frequent practice in the courts just named, was submitted to the court, both as to matters of fact and matters of law, without a jury. The recovery was resisted on several grounds. Among them was possession of the land-prior to any claim of the lessor of Boggs-'according to the usages and regulations established and in force in the mining district within which it was, for the purpose of extracting the gold from the rock;' by which prior possession of the said mineral lands and appropriation of the quartz veins therein, the mining company asserted itself to have acquired a perfect right thereto.

The pleadings nowhere developed more fully than as above the nature of the title thus set up by way of defence; nor indeed did anything else in the record brought here; though as matter of fact it was no doubt, the reporter supposes, meant to be rested on what was a subject of general knowledge; to wit, that the United States had impliedly, and to a greater or less extent, allowed persons to take possession of and to work the mining lands of the Pacific coast, though such persons had no patent for them from it. Under an agreement, too, between the attorneys in the case, the defendant had the right to set up in defence any matter which could be the subject of a bill in equity.

The court in which the suit was brought found, as matter of fact, that the premises sued for had been granted by the United States to Boggs's lessor; and that, in virtue of his lease, Boggs became and still was owner of them; that the Mining Company, defendant in the case, was in possession of them, without the consent and against the will of the plaintiff, and was guilty of the trespass alleged.

It found, also, that in May, 1851, prior to the date of the lease to Boggs, the premises were vacant; that the Mining Company entered upon them under one Moffat; but it was not shown that the said Moffat himself had any title; but, on the contrary, the premises were then the public domain of the United States, except in so far, &c.; that the Mining Company commenced improving the premises for mining purposes in 1851, and had ever since used and occupied them for such purposes, 'pursuant to the mining regulations prevailing in the district,' and had made improvements and expenditures to the extent of more than eight hundred thousand dollars. But the court found, also, that the plaintiff was not estopped from asserting his title, and, on the whole case, found in his favor. Judgment went accordingly for him.

The case then went up to the Supreme Court of the State. That court, in its opinion (which was not, however, any part of the record), recapitulating the case, and noting that one ground relied on to defeat the recovery was 'a license from the government to enter on the premises and extract the gold,'-thus proceeded:

'If the company has a right to the possession and use of the land as against its true owner, for the purpose of extracting the precious metals, it must be upon the ground that the mineral does not pass with the soil as an incident to it, but belongs either to the United States or to the State of California, and that the defendant has an effectual license to enter on the premises and extract them. . . ..

'Assuming, for the purpose of this case, that the mineral belongs to the United States, has the defendant any such license?

'It is sometimes said, in speaking of the public lands, that there is a general license from the United States to work the mines which these lands contain. But this language, though it has found its way into some judicial decisions, is inaccurate as applied to the action, or rather want of action, of the government. There is no license, in the legal meaning of that term. A license to work the mines implies a permission to extract and remove the mineral. Such license from an individual owner can be created only by writing, and from the General Government only by act of Congress. It carries an interest in the land, and arises only from grant. The mineral, whether a distinct possession or otherwise, constitutes part of the realty, as much so as growing timber, and no interest in it can pass except in the ordinary modes for the disposition of land. It is under the exclusive control of Congress, equally with any other interest which the government possesses in land. But Congress has adopted no specific action on the subject, and has left that matter to be controlled by its previous general legislation respecting the public domain. And it is from its want of specific action, from its passiveness, that the inference is drawn of a general license. The most which can be said is, that the government has forborne to exercise its rights; but this forbearance confers no positive right upon the miner which would avail as a protection against the assertion of its claims to the mineral. The supposed license from the General Government, then, to work the mines in the public lands, consists in its simple forbearance. Any other license rests in mere assertion, and is untrue in fact, and unwarranted in law.'

That court accordingly affirmed the judgment; and the Mining Company brought the case here, considering that it fell within the 25th section of the Judiciary Act of 1789, which gives a right of re-examination in this court in cases where there has been drawn in question, in the highest court of law or equity in a State, 'the validity of a treaty or statute of or an authority exercised under the United States, and the decision is against their validity;' which statute, however, also enacts that 'no other error shall be assigned or regarded as ground of reversal in any such case as aforesaid than such as appears on the face of the record, and immediately respecting the before-mentioned questions of validity or construction, &c.'

Mr. David Dudley Field, representing here the defendant in error, having moved to dismiss the case, as not within the provision of the statute, and stated fully the grounds of his motion -to wit, that it must clearly appear on the record that an authority exercised under the United States was distinctly presented-that it 'did arise and was applied'-and that the decision was against the authority so set up; and arguing that a mere forbearance by the government to assert rights was not an 'authority' to take the minerals-Mr. Reverdy Johnson was heard contra:

He contended that, by the laws of Mexico, from which this region came to us, a grant of the mere land did not carry the minerals under it; that the law of England was apparently the same as respected the government, and that this appeared by the Case of the Mines reported by Plowden; that in the case at bar, the grant by the United States to Boggs's lessor, Fr emont, had passed no metals; and that, so far as Fr emont was concerned, these still belonged to the United States. He referred to the fact, as well known, that a special system of law had grown up in the mining States, by which possessory claims, though perhaps, in a view purely abstract, trespasses against the United States, had been long impliedly protected and upheld by the National Government, and had recently been even the subject of protection by statute. This court had also recognized the value of such claims independently of the statute. In Sparrow v. Strong the court said it was impossible to shut our eyes to the public history which informs us that, under Territorial and State legislation, and 'not only without interference by the National Government, but under its implied sanction, vast mining interests have grown up, employing many millions of capital, and contributing largely to the prosperity and improvement of the whole country.' It was of course under this implied authority from the government that the Mining Company rested their case, as to one of its defences, in the court below. The lands were confessedly mineral lands. The suit was for the mines as well as for the lands.

The company asserted, among other things, that they were in prior possession, 'according to the usages and regulations established and in force in the mining district, for the purpose of extracting gold from the rock;' plainly making it to be understood that they were there in the only way in which they could so be there, to wit, under the authority of the United States; whether a permissive authority or one by direct grant, it mattered not. Either was enough to make the party there rightfully. The court below decided against the authority so set up under the United States. The decision was as matter of law; or, to use the court's own language, there was 'no license within the legal meaning of that term.' Nothing short of an act of Congress, the court considered, could constitute a license; that forbearance was all that existed here, and that forbearance was not enough; it alone conferred 'no positive right.' The decision, therefore, was plainly on law as well as on fact; or on law alone, fact being assumed.

The CHIEF JUSTICE delivered the opinion of the court.

title: Mining Company v. Boggs


text: Talk:Mining Company v. Boggs

title: Talk:Mining Company v. Boggs