text:
Saulet v. Shepherd

ERROR to the Circuit Court for the Eastern District of Louisiana.

This was a suit by the heirs of one Saulet for a lot of alluvion (or 'batture' as it is called in Louisiana) fronting the city of New Orleans, on the Mississippi. It is marked on the sketch opposite, in shade and as within the letters F G H L.

The petition of the heirs set forth:

That their ancestor, Saulet, bought, in 1763, a certain piece of ground (being part of an estate previously known as the Jesuits' Plantation), and that the same was cultivated as a plantation up to the year 1810. [The tract thus purchased is in the region marked on the sketch as 'Suburb Saulet.']

That in 1763 the river ran close to and parallel to Tchoupitoulas Street, which was then the public road on the bank of the river, and that there was, outside of the road and close to the river, a dyke or levee running along the whole length of the Jesuits' Plantation, protecting the same from overflow during the annual rise of the Mississippi River.

That outside of the dyke or levee, an alluvial deposit, designated by the name of batture, was afterwards formed, the ownership of which gave rise to much litigation, until the year 1841, when it was finally adjudicated that the said alluvion belonged to the owners of the lands fronting the river.

That the system according to which the division of such alluvions should be made between contiguous riparian proprietors, was also a matter of considerable doubt until recently, when it was adjudicated that such divisions should be made between contiguous riparian owners according to the extent of the front line of each owner at the time of the formation of the alluvion; that the front line of Saulet's plantation, on Tchoupitoulas Street, extended from a point which is now the west corner of Benjamin and Tchoupitoulas Streets, to a point above Roffignac Street, as shown on the sketch.

That about the year 1810, Saulet laid out his plantation into squares and lots, opened streets thereon, and that it had since been known as Suburb Saulet.

That the alluvion having continued to form in front of the said suburb, two other streets, parallel to Tchoupitoulas Street, and nearer the river, were afterwards opened on it, to wit, New Levee Street and Front Street.

That on the 3d September, 1807, Saulet sold to one Bellechasse the ground designated on the sketch by the letters A B C D, on Tchoupitoulas Street, and on the line C D.

That by the same instrument he conveyed to Bellechasse the alluvion in front of the said portion of ground; but by reason of the doubts which existed at that time as to the mode of division of alluvions between contiguous owners, he stipulated that the alluvion conveyed by him to Bellechasse should be taken between lines parallel to the line of division between Suburb Saulet and Suburb Delord, back of Tchoupitoulas Street, and that the lower line of Bellechasse's batture should be the prolongation of the said line of division between the said two suburbs, indicated by the letters C E of the sketch.

That hence the whole ground designated by the letters and comprised between the lines C F and C E of the sketch, situated in front of Suburb Saulet, never was sold or alienated by the said Saulet, nor by his legal representatives, and was the property of the petitioners.

That the portion of the said ground indicated on the sketch as that on which the Orleans Cotton Press is built, was now held and possessed under the aforesaid act of sale to Bellechasse, by one Shepherd, who had probably acquired the same by prescription.

That the portion of the said ground designated by the letters F G H L is now vacant and unoccupied, and under the administration of the city of New Orleans, according to the laws of Louisiana, but that the said Shepherd claims the same, and also the whole ground comprised between the prolongations of Roffignac and Benjamin Streets to the water's edge.

The petitioners prayed, therefore, that Shepherd might be cited; that after due proceedings had, they themselves might be recognized as the owners of the ground between Front Street, the River Mississippi, the prolongation of Roffignac Street, and the line G F of the sketch, and Shepherd be forever enjoined from asserting title to the said alluvial ground.

Shepherd answering the petition, and denying the title of Saulet's heirs, set up among other things, that he had been in uninterrupted and peaceable possession, in good faith and under just titles, for more than thirty years, of the property or estate to which the said property sued for was attached and belonged, and of the said property or batture as long as the same had existed; and that by reason of such possession under the said titles, he pleaded the prescription of ten, twenty, and thirty years.

And further, that he was a bon a fide purchaser of the said property, without notice; and that all those under whom he claims, for a series of more than thirty years, had been bon a fide purchasers of the principal estate to which the batture sued for belongs.

The cause came on to be heard before the court upon the pleadings, and a large body of evidence, and was argued by counsel, and thereupon the court, under a practice usual in Louisiana, found the following, among others, as facts proved in the cause:

That the petitioners were the heirs of Saulet.

That, in the year 1763, the Jesuits' Plantation, situated, &c., was sold, and that one lot, as described, became the property of the said Saulet, and of his heirs at his death, except in as far as he legally disposed of it in his life.

That, in the year 1763, the Mississippi River was close to and parallel with Tchoupitoulas Street, which was then a public road on the bank of that river. That, between this road and this river there was a levee to protect the plantation, and extending along its river boundary, and between the river and the levee there was a batture. That this batture continued to exist from that time until 1810, without experiencing much change. But that by the improvement of the country, and from natural causes, it had, since that time, been raised and extended, and had become the subject of profitable ownership, and that the maps produced in evidence [from one of which the sketch given opposite p. 502, is taken], would show, with sufficient certainty, the changes that the locus had undergone since 1763.

That, from the year 1763, until a period subsequent to 1809, the proprietor, Saulet, and the successive proprietors of the adjacent lot, now known as the Delord suburb, acquiesced in and acted upon the opinion, that the division-line between their plantations extended on a right line across the batture, without experiencing any deflection in consequence of the change made by alluvium. That the claimants under Saulet had acted on the same opinion, and had made improvements in front of their lots, had sustained expensive suits, and borne the charges of such property to the present time, and that this suit was the first legal contestation of that right by the heirs of Saulet.

That the defendant had connected himself with Saulet, and his heirs, by means of deeds which were read in evidence [and which the court specified], and which showed that the defendant was entitled to all the estate, rights, and privileges which were confirmed by the said deeds, or ensue from those granted to the parties named in them.

That all the land between the levee, as now possessed by the city of New Orleans and administered for the public use, and the river boundary in 1763 and in 1810, between the Delord plantation and the farther external line of the lots, conveyed to Bellechasse, continued to the same,-had been held by the persons claiming under the deeds of Saulet, mentioned before; and that neither Saulet nor his heirs have, at any time before this suit, contested their right.

The court, upon a construction of the deeds above mentioned, declared:

That all the accretions to those lots between the Delord plantation and the external line of the Bellechasse lots had, of right, ceased to be the property of Saulet or his heirs.

That the plea of prescription was available in this case, in the favor of the defendant.

Judgment was therefore given to dismiss the petition.

Mr. Janin, for the plaintiffs in error; Mr. Mason Campbell, contra.

Mr. Justice GRIER delivered the opinion of the court.

title: Saulet v. Shepherd


text: Talk:Saulet v. Shepherd

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

title: Talk:Saulet v. Shepherd


text:
Saulet v. Shepherd/Opinion of the Court

The statement of the evidence made by the court below is in the nature of a special verdict, and conclusive as to the facts of the case.

The only question for our consideration is whether the judgment of the court thereon is erroneous.

The plaintiffs claim, as the heirs of Saulet, a parcel of land now forming a part of the batture, in New Orleans, and a part of the levee of the city.

The defendant, in his answer, 'claims to have been in uninterrupted and peaceable possession in good faith and under just title for more than twenty years, of the property or estate to which the said land sued for is attached and belongs, as long as the same has existed, and, under the said titles, he pleads the prescription of ten, twenty, and thirty years.' The court below finds the facts to be as stated in this plea, and decide the plea of prescription in favor of the defendant.

The civil code of Louisiana declares that the accretions which are formed successively and imperceptibly to any soil situated on the shores of any creek or run, are called alluvions.

The right to alluvion depends upon the fact of the contiguity of the estate to the river. Before there can be a right to accession or accretion there must be an estate to which the accession can attach. The plaintiffs' claim seems to be founded on the notion that the right to alluvion adhered to the original plantation, and not to the particular portion of it that borders on the river. They assume that it stretches over the lots that have been sold fronting on the river, and debars them from any extension from improvements or natural causes. The case of Gravier v. The City of New Orleans, quoted in the record, has the following statement of the law on this subject. The court in that case says:

'If Gravier had continued proprietor of the whole tract on which the faubourg has been established, there would have been no difficulty in determining his title to the alluvion. But Gravier has divested himself of all title to that part of his tract on which the faubourg is situated, by the establishment of the faubourg, and by selling the lots fronting and adjoining the highway. It is, therefore, important to inquire what was the situation of the batture or alluvion in question at the time when the faubourg was established, or at least when the front lots were sold, for if no alluvion existed at the time when Gravier ceased to be the owner of the land adjoining the highroad, then it is the opinion of the court that an alluvion subsequently formed would not become the property of Gravier. The reason of this opinion is, that if Gravier could be considered as the proprietor of the road after selling the adjacent land, or of the levee lying between this road and a public river, he would nevertheless, not possess that kind of property which gives the right of alluvion, for the destruction of this property by the encroachments of the river would be a public and not a private loss, since it could not be appropriated to the private use of any individual, and the said road and levee would have become necessarily liable to be kept in repair at the public expense.' The case stated by the court brings this case within the principles established by the court in that.

The matter of fact decided by the court was that the defendant had possessed the property for the full period required by the laws of the State under all the conditions which those laws demand: a possession on thirty years under claim; a possession of ten years under just titles and in good faith. The map will show that the division-line between the De Lord and Saulet suburbs which had been established in 1763, and acquiesced in by the parties, passed through the upper corner of the lands of the Orleans Cotton Press, and did not touch the land in dispute, which is an accession in front of the said lots. The facts as found sustain, therefore, the defendant's plea, and the judgment of the Circuit Court is

AFFIRMED ACCORDINGLY.

title: Saulet v. Shepherd/Opinion of the Court


text: Talk:Saulet v. Shepherd/Opinion of the Court


text:
Bentley v. Coyne

THESE were appeals from the Circuit Court of the United States for the Eastern District of Michigan, in a libel and cross-libel for collisions of vessels on Lake Michigan; the questions involved being of fact chiefly, and the cases being submitted.

Mr. Hibbard, for the appellants; Mr. Newbury, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Bentley v. Coyne


text: Talk:Bentley v. Coyne

title: Talk:Bentley v. Coyne


text:
Bentley v. Coyne/Opinion of the Court

Subject-matter of the controversy in this case was a collision between the schooner White Cloud and the bark Newsboy, which occurred on the twelfth day of November, 1862, off Twin River Point, or a little below, on the west shore of Lake Michigan. Owner of the White Cloud filed his libel against the bark Newsboy on the twenty-fifth day of May, 1863, and the owners of the bark filed their cross-libel against the schooner on the twenty-ninth day of September in the same year. Both cases were heard together in the District Court, and the decision was that the bark was in fault. Damages were accordingly awarded to the libellant in the case of the schooner in the sum of five thousand six hundred and seventy-three dollars and sixty-six cents, and the cross-libel was dismissed with costs. Circuit Court on appeal affirmed the respective decrees and the owners of the bark, as respondents in one case and as libellants in the other, appealed to this court.

1. Voyago of the schooner was from Buffalo to Chicago, and that of the bark was from Milwaukie to Buffalo. Capacity of the former was three hundred and eighteen tons, and that of the latter was five hundred and fifty-seven tons, and both were good vessels and had a full complement of officers and seamen. Testimony shows that both vessels were under full headway when the collision occurred, and that it resulted in great damage to the schooner. Among other injuries it broke the rail, stanchions, and bulwarks of the schooner from the fore-rigging to the main-rigging, and cut her outside planks down below the water-line as far as the bilge, and broke the clamps and ceiling down to the bilge-kelson. Damage was also done to the plank-sheer and deck-frame, and the capstan and some of the deck-plank were broken, the forestay-sail split and the butts of the deck-plank were started the whole length of the vessel.

Principal damage was on the starboard side of the schooner, showing conclusively that the blow was between the main and fore-rigging, on that side. She was in ballast, but the bark had a full cargo of wheat. Collision occurred about seven o'clock in the evening, but the proofs show that it was not very dark, and the witnesses concur that there was no haze on the water and that the lights of vessels could be seen for several miles. Although it was cloudy, still the weather was pleasant and there was a good breeze. Speed of schooner was six or seven miles an hour, and that of the bark was nine miles. Weight of the evidence shows that the wind, though slightly baffling, varying occasionally perhaps a degree to the west, was southwest-by-west, and both vessels were under a full, or nearly full, press of canvas. Course of the schooner was south-half-east, and that of the bark was north-northeast, but she was not kept steady.

Considerable conflict exists in the testimony as to the course of the wind and of the schooner, but the better opinion, in view of the whole case, is, that the testimony of the master is correct. He came on deck twenty minutes before the collision, and he testified that the wind was about southwest-by-west, a little baffling, varying sometimes a point to the westward, and that the vessel was heading by the compass south-half-east, and we adopt those statements as satisfactorily sustained by the weight of the evidence.

Both vessels showed lights, and the proofs are full to the point that each saw the light of the other two or three miles before they came together. Obviously, therefore, it is a case of fault and not of inevitable accident-as the water was smooth and the vessels were sailing in a broad unobstructed thoroughfare. Undisputed fact also is that the schooner was sailing on the starboard tack, closehauled on the wind, and that the bark was on the larboard tack and had the wind free. Rule of navigation is, that where a vessel has the wind free, or is sailing before or with the wind, she must keep out of the way of the vessel which is closehauled by the wind or sailing by or against it, and the vessel on the starboard tack has a right to keep her course and the one on the larboard tack must give way or be answerable for the consequences.

Strong effort is made by the respondents to take the case out of the operation of that rule by attempting to show that the schooner changed her course. Persons engaged in navigating vessels upon navigable waters are bound to observe the nautical rules recognized by law in he management of their vessels on approaching a point where there is danger of collision. Undoubtedly the same law which requires vessels having the wind free, or sailing on the larboard tack, to keep out of the way or give way, as the case may be, also imposes the correlative duty upon those closehauled on the wind, or sailing on the starboard tack, to keep their course, in order that the former may know the position of the object to be avoided, and not be baffled or led into error in their endeavors to comply with the requirement.

Appellants show, beyond doubt, that the schooner changed her course, but they do not show that she changed it at a time or in any sense when or in which the law regards it as a fault. The rules of navigation mentioned do not apply to a vessel required to keep her course after the approach of the advancing vessel is so near that the collision is inevitable. An error committed by those in charge of a vessel under such circumstances, if the vessel is otherwise without fault, will not impair her right to recover for the injuries occasioned by the collision, for the reason that those who put the vessel in that peril are chargeable with the error, and must answer for the consequences which it occasions.

Evidence shows satisfactorily that the schooner kept her course until the peril was impending and the collision inevitable, and that the order, hard-a-starboard, was given by the master at the moment it occurred, 'to ease off the blow and make it glancing.' Such a change of course, at that moment, the District Court held was demanded as a means of self-preservation and was not a fault, and we entirely concur in that conclusion.

Objection is also taken to the decision of the court in confirming the report of the commissioner as to the amount of the damages, but the objection is without merit and is hereby overruled. Decision of the District Court in the case of the cross-libel was also correct.

AFFIRMED WITH COSTS IN BOTH CASES.

title: Bentley v. Coyne/Opinion of the Court


text: Talk:Bentley v. Coyne/Opinion of the Court


text:
Purcell v. Miner

PURCELL filed a bill against Coleman, Miner and wife, and others, in the Supreme Court of the District of Columbia, where the statute of frauds-enacting that all estates in lands made by parol only and not put in writing and signed by the parties making the same shall have the force and effect of estates at will only is in force. The bill set forth that Coleman having a house in Washington, and he, Purcell, a farm in Virginia, 'a trade' had been made between them; and the possession and key of the house delivered to him by Coleman, and full payment admitted by Coleman's receiving the farm, the title of which he had examined, and 'the trade' closed; and that Coleman had requested the complainant to prepare both deeds; that Purcell had done so, and had tendered and was now ready to tender to Coleman a deed for the farm according to the contract.

The bill then went on:

'Your orator further avers that several weeks thereafter, to his great surprise, about the time he had commenced improving the house for the purpose of placing a tenant in it, the said Coleman, in the night-time, entered the back way, be means of a ladder, and took from the back door the key on the inside of said house, and held forcible possession of the same until he was found guilty of the charge by two justices, after hearing all the testimony and having the aid of two counsel. That the said Coleman then delivered the key to your orator, and stated in the presence of several gentlemen that the change of property was fair; that he knew its condition before trading, in relation to its value and title; that it was advantageous to him, but that his wife had a few days previous refused to go with him to the said farm, and that was his only reason for his unlawful conduct, and that he would not do it again, and that he would pay all the costs in the case, which he has failed to do.

'Your orator further avers that notwithstanding the key, possession, and equitable title being with your orator, and that he had actually prepared a bill in equity to compel said Coleman to make him a deed for the house and lot, and was about to file it, that to his great surprise it appeared that on the 9th March, 1861, one Miner had entered into a conditional contract with the said Coleman for the house and lot, and obtained a deed for the same in the name of his wife; the said Miner well knowing at the time he made the conditional contract with the said Coleman that your orator was entitled to the equitable estate in said house and lot, as well as the peaceable and lawful possession of the same; that the said Miner, in order to get possession of the house, in the absence of your orator prepared a false key and entered it, first having torn down the printed advertisement from the door showing the house was for rent by your orator. And that your orator had again to incur the expense, loss of time, and annoyance of prosecuting the writ of forcible entry, and the said Miner was found guilty as charged, and fined fifty dollars.

'Your orator further avers that the said Miner stated to your orator in the presence of several gentlemen that it was not necessary to make him a party to the suit to compel the legal title; that if your orator succeeded against said Coleman, that said Coleman was to convey back to him or his wife the land in Virginia, which he had conveyed to said Coleman for the house and lot referred to, thereby showing that their pretended exchange was entirely depending on the right of your orator to the said house and lot, which is still in your orator's possession, but owing to the annoyance, by said Coleman and Miner, he has been unable to rent it.

'Your orator further avers that it is impossible to place your orator and the said Coleman in the same situation they were in before they exchanged property, because the said Coleman not having given attention to the farm, a barn has been destroyed, and also much of the fencing, as your orator has been informed and believes, and that he has been at expense in repairing the house and lot, & c.'

The bill prayed a specific performance of the contract set up.

The bill was answered by Miner, denying, &c., and set out that Miner also having a farm in Virginia, he and Coleman had agreed on and actually consummated a bon a fide and unconditional exchange of the house for it.

The answer then thus went on:

'This defendant further says, that soon after the execution of said deed to his said wife he took possession of the premises (as this defendant was authorized to do as the property of his wife) in a peaceable, quiet, and proper manner, and that he met upon the street a locksmith, who unlocked the front door of said house and sold this defendant a key. Some days subsequently the said complainant demanded of this defendant the possession of said house and lot, which demand this defendant refused to comply with. The next day the complainant came to the premises with a large number of officers and two justices of the peace, and in their presence again demanded possession of the house and lot, which this defendant again refused to grant, but being requested by said justices, he opened the door and allowed them to enter. The said justices immediately proceeded to try the question of possession, and, to the utter surprise and astonishment of this defendant, imposed a fine for withholding from the said complainant the possession of the said house and lot. This defendant requested the said complainant to show his title to the said house and lot which he claimed, and the said complainant exhibited some papers, but none of them were signed by said Coleman, nor were they of any consequence in reference to the support of his pretended claim of title. This defendant immediately called upon Coleman and related to him the circumstances in reference to the claim upon the house and lot set up by the complainant, and was informed by Coleman that the complainant had no claim upon the said house and lot, but admitted that they had been negotiating for an exchange of properties, and while the negotiations were going on, he, the said Coleman, learned that the farm in Virginia that said complainant had offered him for said house and lot did not belong to the said complainant, and that he could not give him, the said Coleman, a clear title thereto, and consequently that he, the said Coleman, had declined closing any contract with said complainant.'

Mrs. Miner did not answer, but made default. A good deal of testimony was taken, many of the interrogatories-the parties managing their own case-being of a most leading character.

The court below dismissed the bill, and the case was now here on appeal.

Messrs. Brent and Merrick, for the appellant, Purcell:

At a moment when the complainant was entitled to a decree pro confesso against Mrs. Miner, the recipient of Coleman's title, the court dismissed the bill.

The statute of frauds is not relied on or intimated in the answer of defendants; but if it had been, it would not apply in this case. The giving possession is part performance.

The possession being mutually given and taken by the parties, entitled the appellant to a specific performance of the agreement. An exchange will be specifically decreed.

Mr. Miner, pro se, contra.

Mr. Justice GRIER delivered the opinion of the court.

title: Purcell v. Miner


text: Talk:Purcell v. Miner

title: Talk:Purcell v. Miner


text:
Purcell v. Miner/Opinion of the Court

A contract for the exchange of lands is as much within the statute of frauds as a contract for their sale, and a party seeking to enforce a specific execution of a parol contract for that purpose, must bring himself within the same conditions before he can invoke the aid of a court of equity. The statute, which requires such contracts to be in writing, is equally binding on courts of equity as courts of law. Every day's experience more fully demonstrates that this statute was founded in wisdom, and absolutely necessary to preserve the title to real property from the chances, the uncertainty, and the fraud attending the admission of parol testimony. It has been often regretted by judges that courts of equity have not required as rigid an execution of the statute as courts of law.

Nevertheless, courts of equity have, in many instances, relaxed the rigid requirements of the statute; but it has always been done for the purposes of hindering the statute made to prevent frauds from becoming the instrument of fraud.

A mere breach of a parol promise will not make a case for the interference of a chancellor. It is plain that a party who claims such interference has the burden of proof thrown on him. He knows that the law requires written evidence of such contracts, in order to their validity. He has acted with great negligence and folly who has paid his money without getting his deed. When he requests a court to interfere for him, and save him from the consequences of his own disregard of the law, he should be held rigidly to full, satisfactory, and indubitable proof—

First. Of the contract, and of its terms. Such proof must be clear, definite, and conclusive, and must show a contract, leaving no jus deliberandi, or locus poenitentiae. It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, which the witness had no reason to recollect from interest in the subject-matter, which may have been imperfectly heard, or inaccurately remembered, perverted, or altogether fabricated; testimony, therefore, impossible to be contradicted.

Second. That the consideration has been paid or tendered. But the mere payment of the price, in part or in whole, will not, of itself, be sufficient for the interference of a court of equity, the party having a sufficient remedy at law to recover back the money.

Third. Such a part performance of the contract that its rescission would be a fraud on the other party, and could not be fully compensated by recovery of damages in a court of law.

Fourth. That delivery of possession has been made in pursuance of the contract, and acquiesced in by the other party. This will not be satisfied by proof of a scrambling and litigious possession.

The application of these principles to the case before us will show that the plaintiff has wholly failed to establish a case proper for the interference of a court of equity.

We do not think it necessary to a vindication of our judgment to give a history either of the pleadings or evidence disclosed by the record. The case appears to have been carried on by the parties propri a person a, who are excusable for their ignorance of all the rules of pleading and practice in a court of chancery, or the proper mode of taking testimony. The merits of the case seem to have been tried in a verbal wrangle before two justices, and afterwards converted into a written one for the consideration of the court.

Taking the complainant's bill to be a correct statement of the facts, he has shown no case for the interference of the court. By his statement, the contract was not intended to be left in parol; but when the parties had each examined the properties proposed to be exchanged, they contemplated to come together and perfect the exchange. If either party had delivered a deed, in execution of the 'trade' or bargain, and the other refused to fulfil his part, by making a proper conveyance, or if valuable improvements had been made by the party in possession, there would have been a case for a decree of specific execution. As it was, the defendant declined to go on with the 'trade,' alleging that the plaintiff's farm was incumbered. He had given the key of the house to the complainant, which was set up as a delivery of possession, while the defendant denied any intention to make such delivery, and took forcible possession of his house. While this contest about the possession was going on, the defendant sold his house, and conveyed it to the wife of his counsel, who carried on the litigation for him before the justices, and here.

The bill must fail—

1. For want of clear, definite, and conclusive proofs of the contract.

2. For want of any delivery of peaceful and uninterrupted possession.

3. Or of valuable improvements made.

We find no part execution on either side, nor anything but a breach of promise, and a consequent quarrel before the contract of exchange was executed.

DECREE AFFIRMED.

title: Purcell v. Miner/Opinion of the Court


text: Talk:Purcell v. Miner/Opinion of the Court


text:
Commissioner of Patents v. Whiteley

ERROR to the Supreme Court of the District of Columbia.

Whiteley, the defendant in error, was the assignee of a sectional interest in a patent granted to Hains, on the 4th of September, 1855, for an improvement in mowing machines. He held, by virtue of several assignments, all the territory embraced in the patent, except the State of Ohio and the northern half of the State of Illinois; and in all the territory, except as just mentioned, was assignee of all the rights of the patentee.

In 1863, he applied to the commissioner of patents for a reissue of the patent, according to the thirteenth section of the Patent Act of 1836; a section which enacts that--'Whenever any patent, &c., shall be inoperative or invalid, by reason of a defective or insufficient description or specification, &c., if the error has or shall have arisen by inadvertency, accident, or mistake, &c., it shall be lawful for the commissioner, upon the surrender to him of such patent, &c., to cause a new patent to be issued to the said inventor for the same invention, for the residue of the period then unexpired for which the original patent was granted, in accordance with the patentee's corrected description and specification. And in case of his death, or any assignment by him made of the original patent, a similar right shall vest in his executors, administrators, or assignees.'

The assignees for the State of Ohio, and of the northern half of Illinois, did not join in the application.

The commissioner of patents, after a laborious investigation of the law and comparison of various sections of the patent acts, decided that the applicant, not being the assignee of the whole interest in the patent, was not entitled to the reissue asked for.

Whiteley took no appeal from the commissioner's decision to the 'board of examiners,' but setting forth that his application for reissue was filed with the acting commissioner, and the refusal, petitioned the Supreme Court of the District of Columbia for a mandamus to send the application to an examiner to be acted upon by him as though made by the patentee.'

The commissioner, in reply-premising that for the reason that the proposed applicant was not such an assignee as the law contemplates, and that the application, therefore, was not filed, or entered upon the books of the office, and never had been, and that the fees required on such application, which had been paid by the relator to the chief clerk of the office, on the presentation of said application, had not been placed to the credit of the patent fund, but remain in the hands of the chief clerk, personally, and subject to the order of the relator-replied, among other reasons, against the mandamus:

1. That the object of it was to carry by appeal a preliminary question solely cognizable by him, to the Supreme Court of the District, and that such a mandamus would be nugatory.

2. That he had decided rightly in rejecting the application, the relator not coming within the meaning of the term 'assignee,' as contemplated in the thirteenth section of the act of 1836. And in support of this view he submitted as part of his answer a full law argument, which now came up in the record.

The Supreme Court of the District granted the mandamus, 'commanding the commissioner of patents to refer said application to the proper examiner, or otherwise examine or cause the same to be examined according to law.' The case was now here on writ of error, brought by the commissioner of patents, to remove the proceeding to this court. Two principal questions were raised:

1. Supposing the decision of the commissioner to have been erroneous, and that the assignee of a sectional interest in a patent was entitled to a reissue, did a mandamus such as that above mentioned lie to correct the decision?

2. Did the commissioner, in deciding as he did, that the applicant as owner of but a sectional interest was not entitled to a reissue, decide correctly?

In order to judge of the first question it is necessary to state—

1. That the Patent Act of 1836, by its seventh section, provides that on the filing of any application for a patent, 'the commissioner shall make or cause to be made an examination of the alleged new invention or discovery,' and if on such examination it does not appear that the same had been invented or discovered by any other person, &c., he shall issue the patent. But if, on the contrary, he shall decide that the applicant was not the original and first inventor, &c., and the applicant shall insist on his claim, 'such applicant may on appeal have the decision of a board of examiners to be composed of three disinterested persons who shall be appointed by the Secretary of State for that purpose,' which board shall have power 'to reverse the decision of the commissioner, either in whole or in part.'

2. That by an act of 1837, in addition to the former act, it is provided that in cases of application to the commissioner for re-issue, the applicant, if dissatisfied with the decision of that officer, 'shall have the same remedy and be entitled to the same privileges and proceedings as are provided by law in the case of original applications.'

Mr. Foote, for the plaintiff in error, contended:

On the first point. That if the decision was erroneous it could not be corrected in the manner in which the relator had proceeded. The commissioner had already done just that thing which the writ commanded him to do. He had examined the matter very fully, and the proof of this was in the document found in the record as the chief reply to the application for the mandamus granted. The remedy was appeal.

On the second point. The decision of the commissioner was believed by him to be correct; but that officer had no personal interest in the questions. All that he wished was that it should be settled by this court. Similar questions frequently arose in the Patent Office, and it was important to the public interest that the statute should receive an authoritative construction.

He conceded that an extension of the act to assignees of sectional interests would be very convenient to them. That the necessity of a reissue might be as great to them as to the owner of the whole interest. Indeed that their rights might be impaired and even lost for want of such a power.

But there were serious objections to such a construction of the statute.

1st. It might lead to as many different patents for the same invention as the patentee should grant sectional interests in it.

2d. Upon a reissue the original patent must be surrendered.

In Moffatt v. Garr, this court held that a surrender of the patent to the commissioner in judgment of law extinguishes the patent. It is a legal cancellation of it; and hence can no more be a foundation for a right after the surrender than could an act of Congress which had been repealed. If the patent be cancelled by one assignee, how could a suit be maintained upon it by another who had not joined in the reissue? Or if the sectional assignee did not happen to possess the patent, how could he surrender it to be cancelled?

3d. The omission in the thirteenth section of the act to mention the grantees of sectional interests, as would be seen on reference to it that the act does in other sections, in connection with the requirement of a surrender of the patent, would seem to imply that it was not the intention of the act to extend its provisions beyond the patentee and the assignee of the whole interest.

Messrs. Coombs and Fisher, contra.

So far as it was possible, Whiteley complied with all the forms and requirements of the law. The case, therefore, presents general questions of right applicable to many cases.

I. Has the Supreme Court of the District of Columbia jurisdiction and power to grant and enforce a 'wirt of mandamus' commanding the commissioner of patents to do an act enjoined by law?

The writ is a remedial writ, issuing out of the King's Bench, or other highest court of original jurisdiction; it commands the party to whom it is directed to do his duty, and summarily enforces its command by attachment; and it is the appropriate remedy where the law has prescribed no specific remedy, and where justice and good government require one. It is based upon the principle, that there should be a remedy to enforce every right. Without such writ, of such general application, and of such power in terrorem, the frequent failure of justice would be intolerable. Nowhere in the country is there so great need of the wirt of mandamus as in the District of Columbia, where all the great departments of the general government have their offices, and where the rights of the people are so liable to infringement.

In Griffith v. Cochran, a rule was granted upon Cochran, Secretary of the Land Office, 'commanding him to prepare and deliver patents to Griffith' for certain tracts of land. The court said:

'Where a ministerial act is to be done, and there is no other specific remedy, a mandamus will be granted to do the act which is required; but where the complaint is against a person who acts in a judicial or deliberative capacity, he may be ordered by mandamus to proceed to do his duty, by deciding according to the best of his judgment, but the court will not direct him in what manner to decide. This was the principle adopted by the Supreme Court of the United States, in the case of United States v. Lawrence, and it has been frequently recognized by this court. If the secretary had in this case refused to make any calculation, or take any step whereby the business of the applicant might be despatched, it would certainly have been our duty to compel him by mandamus.'

In Kendall v. United States, in this court-the leading authority upon the question,-the court said:

'Congress has entire control over the District for every purpose of government; and it is reasonable to suppose that, in organizing a judicial department here, all judicial power necessary for the purposes of government would be vested in the courts of justice. The Circuit Court here is the highest court of original jurisdiction; and if the power to issue a mandamus in a case like the present exists anywhere, it is vested in that court.'

In Decatur v. Paulding, Taney, C. J., in delivering the opinion of the court, said:

title: Commissioner of Patents v. Whiteley


text: Talk:Commissioner of Patents v. Whiteley


text:
Commissioner of Patents v. Whiteley/Opinion of the Court

'In the case of Kendall v. United States, it was decided in this court, that the Circuit Court for Washington County, in the District of Columbia, has the power to issue a mandamus to an officer of the Federal government commanding him to do a ministerial act.'

The act of Congress of 3d March, 1863, which established the Supreme Court of the District of Columbia, in section third, says:

'The Supreme Court organized by this act shall possess the same powers and exercise the same jurisdiction as is now possessed and exercised by the Circuit Court of the District of Columbia,' &c.

II. Is the commissioner of patents commanded by law to examine, or cause to be examined, a proper and lawful application for a reissue, and does the writ of mandamus lie to enforce that command?

The relator holds, that when an application for a reissue is made in due form of law, it is the duty of the commissioner to examine it, and take such action upon the case as will enable the applicant to appeal from his decision if it be unfavorable. To this the commissioner objects, that the relator is not entitled to apply for a reissue, because he does not own the entire patent; that the legal question involved is preliminary, and determinable by him alone, without appeal; and refuses to put the case upon the files of the Patent Office in such form, that his refusal to grant the reissue, would give the applicant an appeal to a Justice of the Supreme Court of the District of Columbia. And the object in praying for the writ was, that the commissioner might be compelled to 'examine' this case. Before the examination can be made, the case must be duly filed, and then, if the commissioner refuses the patent, for any reason, we are entitled to an appeal; but as long as the commissioner keeps us completely out of the Patent Office, we are subject to his will, which deprives us of the right of appeal.

The thirteenth section of the act of 1836; the eighth section of the act of 1837, which is supplemental to it, and the seventh section of the act of 1836, are co-active sections of the law and command the commissioner to make, &c., an examination.

This being the case, the writ of mandamus lies to enforce that command.

Formerly the received idea was, that a mandamus would lie only to command the performance of a ministerial duty; but modern cases have gone much further, and it is now the practice to grant the writ to command the performance by any inferior jurisdiction or officer, of any public duty, for which there is no specific remedy. The duty must be a public one, though the value to the public is not scrupulously weighed.

Adjudged cases cover the present one, and demonstrate the power of the court below to command and compel the commissioner of patents 'to hear the application;' 'to exercise his discretion;' 'to determine the one way or the other;' 'to put himself in motion to do the thing;' 'to proceed to do his duty,' by examining, or causing to be examined, our application for a reissue, according to law.

III. Has the grantee of an exclusive territorial interest in a patent a legal right to apply for a reissue of that patent?

In Shaw v. Cooper, the court say, 'That the holder of a defective patent may surrender it to the Department of State, and obtain a new one, which shall have relation to the emanation of the first, was decided by this court at the last term, in the case of Grant and Others v. Raymond.'

The word 'holder' here used, it must be observed, is a general term, and cannot be so restricted as to apply only to one who holds the entire interest in a patent; but is equally applicable to those who hold any exclusively territorial interest.

Moreover, the thirteenth section of the act of 1836, which first established the reissue, as now granted, grants unto any assignee the same right to a reissue that it grants to the patentee. Had it been the intention of Congress to restrict the remedy of reissue to the assignee of the whole interest, it would have been easy to use words of limitation, or to have used the restrictive and definite article 'the' instead of the distributive pronoun 'any,' before the word 'assignment.'

[The learned counsel followed, and replied to the argument of the commissioner, as set forth in the opinion annexed to his answer, and made part of the argument; contending also, that Whiteley was not a mere grantee of an exclusive territorial right.]

Mr. Justice SWAYNE delivered the opinion of the court.

This case was brought here by a writ of error to the Supreme Court of the District of Colmbia.

On the 4th of September, 1855, a patent was issued to Jonathan Haines for an improvement in mowing machines.

On the 22d of November, 1856, Haines sold and assigned to Ball, Aultman & Co., an exclusive right to the invention and patent, within the limits of the State of Ohio.

On the 13th of April, 1858, upon the surrender of the original patent by Haines, and upon his application, without the assent of Ball, Aultman & Co., a reissue of the patent was granted to him.

On the 15th of January, 1860, Jonathan Haines sold and assigned to his brother, Ansel Haines, one undivided third part of his interest in the patent.

On the 25th of January, 1860, Jonathan and Ansel Haines sold and granted to Isaac and Wm. C. Hawley the exclusive right to the invention and patent in certain counties in the State of Illinois.

On the 10th of April, 1863, Ansel Haines reassigned to Jonathan Haines all his interest in the patent.

On the 17th of April, 1863, Jonathan Haines sold and assigned all his interest in the patent to Andrew Whiteley, the defendant in error. Haines, at the same time, delivered the patent to Whiteley, in order that he might surrender it and procure another reissue.

Ball, Aultman & Co. were applied to; but declined to concur. It does not appear that the Hawleys were advised upon the subject.

On the 25th of January, 1863, Whiteley filed his application for a reissue in the Patent Office, in conformity with the provisions of the thirteenth section of the act of 1836.

The commissioner of patents declined to entertain the application, upon the ground that the applicant was only the grantee of an exclusive sectional interest, and not of the entire patent. He also declined to allow an appeal to be taken from this decision. An application was thereupon made to the Supreme Court of the District of Columbia for a writ of mandamus. That court awarded a peremptory writ, commanding the commissioner 'to refer said application to the proper examiner, or otherwise examine or cause the same to be examined according to law.' This writ of error is prosecuted to reverse that order. Did the court err in making it?

The thirteenth section of the act of 1836 declares that, under the circumstances therein stated, 'it shall be lawful for the commissioner, upon the surrender to him of such patent,'. . . 'to cause a new patent to be issued to the said inventor, for the same invention, for the residue of the period then unexpired, for which the original patent was granted, in accordance with the patentee's corrected description and specifications; and in case of his death or any assignment by him made of the original patent, a similar right shall vest in his executors, administrators, or assigns.'

The seventh section of this act provides that, on the filing of any application for a patent and the payment of the duty required, 'the commissioner shall make, or cause to be made, an examination of the alleged new invention or discovery,' &c.

The eighth section of the act of 1837 provides, in regard to applications for the reissue of patents, and the decisions of the commissioner, that 'in all such cases the applicant, if dissatisfied with such decision, shall have the same remedies, and be entitled to the benefit of the same privileges and proceedings as are provided by law in case of original applications for patents.'

This renders it necessary to recur to the act of 1836, and to consider carefully its provisons touching the applications to which it relates.

Both acts should be liberally construed to meet the wise and beneficent object of the legislature. Patentees are a meritorious class, and all the aid and protection which the law allows, this court will cheerfully give them.

If the commissioner should hold that a party applying originally for a patent 'was not the original and first inventor,' and should decide against him upon that ground, the applicant could undoubtedly take an appeal from his decision. The commissioner having reached this conclusion, would be under no obligation to go further and examine any other question arising in the case, and it would not be necessary to the right of appeal that he should do so.

Here an assignee applied for the reissue of a patent. It was clearly competent for the commisioner, and it was his duty, to decide whether the applicant was an assignee at all, and, if so, whether he was an assignee with such an interest as entitled him to a reissue within the meaning of the statutory provision upon the subject. The latter question is an important one. It is as yet unsettled, and awaits an authoritative determination.

The commissioner says, in his answer to the rule, that he could not examine the application, because none had been filed in the Patent Office.

This position is untenable. It is averred in the petition, and not denied in the answer-and, therefore, as in other like cases of pleading, to be taken as conceded-that the application was filed with the acting commissioner. It is also admitted, in the answer, that the requisite amount of fees had been paid by the relator, but, it is added, that it had not been placed to the credit of the office, and was in the hands of the chief clerk, subject to the relator's order.

The relator had done all in his power to make his application effectual, and had a right to consider it properly before the commissioner.

It was so. If it was not, a mandamus would clearly lie to compel the commissioner to receive it. It was his first duty to receive the application, whatever he might do subsequently. Without this initial step there could be no examination, and, indeed, no rightful knowledge of the subject on his part. Examination and the exercise of judgment, with their proper fruit, were to follow, and they did follow.

The commissioner found the question, whether the assignee was such a one as the law entitled to a reissue, lying at the threshold of his duties? It required an answer before he could proceed further. His decision was against the appellant. His examination of the subject was thorough, and his conclusion is supported by an able and elaborate argument. It was made a part of his reply to the rule, and is found in the record.

From this decision, whether right or wrong, the relator had a right, under the statute, to appeal.

If the mandamus had ordered the commissioner to allow the appeal, we should have held the order under which it was issued to be correct. But the order was that he should proceed to examine the application. That he had already done. The preliminary question which he decided was as much within the scope of his authority as any other which could arise. Having resolved it in the negative, there was no necessity for him to look further into the case. Entertaining such views, it would have been idle to do so. The question was vital to the application, and its resolution was fatal, so far as he was concerned. Only a reversal by the tribunal of appeal could revive it, and cast upon him the duty of further examination.

The principles of law relating to the remedy by mandamus are well settled.

It lies where there is a refusal to perform a ministerial act involving no exercise of judgment or discretion.

It lies, also, where the exercise of judgment and discretion are involved and the officer refuses to decide, provided that, if he decided, the aggrieved party could have his decision reviewed by another tribunal.

It is applicable only in these two classes of cases. It cannot be made to perform the functions of a writ of error.

In Decatur v. Paulding, referring to an act of Congress under which the relator in that case claimed a pension which had been refused her by the Secretary of the Navy, this court said: 'If a suit should come before this court which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by any head of a department; and if they supposed his decision to be wrong, they would of course so pronounce their judgment. But their construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the secretaries, nor reverse his judgment in any case where the law authorizes him to exercise discretion or judgment; nor can it by mandamus act directly upon the officer, and guide or control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties. . . . The interference of courts with the performance of the ordinary duties of the executive department of the government would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given to them.'

This case, as presented to the court below, was within neither of the categories above mentioned. The court, therefore, erred in making the order to which the commissioner objected.

The main question passed upon by the commissioner, and which was supposed to underlie this case, is not before us for consideration. If it were, as at present advised, we are not prepared to say that the decision of the commissioner was not correct.

The order of the court below, awarding the mandamus, is reversed with costs, and it is ordered by this court that the application of the relator be by that court

OVERRULED AND DISMISSED.


text: Talk:Commissioner of Patents v. Whiteley/Opinion of the Court


text:
Von Hoffman v. City of Quincy

THIS case was brought up by a writ of error to the Circuit Court of the United States for the Southern District of Illinois.

The relator filed his petition in that court, alleging, among other things, as follows:

At the June Term, 1863, and before that time, he was the owner and holder of certain coupons on interest notes of the City of Quincy. They were past due and unpaid. When issued and negotiated they were attached to certain bonds made and delivered by that city, in payment for the stock of the Northern Cross Railroad Company, and of the Quincy and Toledo Railroad Company, subscribed for by the city under and by virtue of certain acts of the legislature of Illinois, of the 17th of October, 1851, and 26th of January, 1853, and the 31st of January, 1857. By the provisions of these several acts the city was authorized to collect a special annual tax upon the property, real and personal, therein, sufficient to pay the annual interest upon any bonds thereafter issued by the city for railroad purposes, pursuant to law. It was required that the tax, when collected, should be set aside, and held separate from the other portions of the city revenue, as a fund specially pledged for the payment of the annual interest upon the bonds aforesaid. It was to be applied to this purpose, from time to time, as the interest should become due, 'and to no other purpose whatsoever.'

The city failed to pay the coupons held by the relator for a long time after they became due, and refused to levy the tax necessary for that purpose. The relator sued the city upon them in the court below, and at the June Term, 1863, recovered a judgment for $22,206.69 and costs. An execution was issued and returned unsatisfied. The judgment was unpaid. The city still neglected and refused to levy the requisite tax. He therefore prayed that a writ of mandamus be issued, commanding the city and its proper officers to pay over to him any money in their hands otherwise unappropriated, not exceeding the amount of the judgment, interest, and costs; and, for want of such funds, commanding them to levy the special tax as required by the acts of the legislature before referred to, sufficient to satisfy the judgment, interest, and costs, and to pay over to him the proceeds.

The city filed an answer. It alleged that there was no money in its treasury wherewith to satisfy the judgment, and as a reason why a peremptory writ of mandamus should not issue, referred to an act of the legislature of Illinois, of the 14th of February, 1863, which contains the following provisions:

Sec. 4. The city council of said city shall have power to levy and collect annually taxes on real and personal property within the limits of said city, as follows: On real and personal property within, or which may hereafter be within, portions of said city lighted with gas, to meet the expenses thereof, not exceeding twenty-eight cents on each one hundred dollars per annum on the annual assessed value thereof. On all real and personal property within the limits of said city, to meet the expenses of obtaining school grounds, and erecting, repairing, and improving school buildings and school grounds, and providing teachers and maintaining public schools in said city, and to be devoted exclusively for such purposes, not exceeding twenty-five cents on each one hundred dollars per annum on the annual assessed value thereof: Provided, That no more than eighteen cents on each one hundred dollars aforesaid shall be levied in any year for such purposes without the concurrence of a majority of the votes of legal voters of said city, to be cast at an election to be ordered by said city council, and held to determine the rate per cent. so to be levied. On all real and personal property within the limits of said city, to pay the debts and meet the general expenses of said city, not exceeding fifty cents on each one hundred dollars per annum on the annual assessed value thereof.

Sec. 5. All laws and parts of laws, other than the provisions hereof, touching the levy or collection of taxes on property within said city, except those regulating such collection, and all laws conflicting herewith, are hereby repealed; but this act shall not affect taxes of said city relating to streets or alleys, or to licenses of whatever nature, nor any sources of revenue other than taxes upon real or personal property, and which said act remains in full force and unrepealed.

The answer averred that the full amount of the tax authorized by this act had been assessed, and was in the process of collection; that the power of the city in this respect has been exhausted: 'and that the said fifty cents on the one hundred dollars, when collected, will not be sufficient to pay the current expenses of the city for the year 1864, and the debts of the said city.' It further alleged that about the year 1851, the city, under the act of November 6th, 1849, issued to the Northern Cross Railroad Company bonds to the amount of $100,000, and about the year 1854, under the act of January 26th, 1853, other bonds to the amount of $100,000, and that about the year 1856, it made and delivered its other bonds to the amount of $100,000. It alleged that the bonds last issued were wholly unauthorized, but that they were subsequently ratified by the legislature by the act of January 1st, 1857. The relator's judgment, it averred, was founded upon coupons belonging to bonds of these three classes.

The relator demurred to the answer, and judgment was given against him.

The principal question in this court was whether the act of February 14th, impaired the obligation of a contract, and was therefore void within the tenth section of the first article of the Constitution, which prohibits any State from passing such an act.

A second question was whether, if it did so, a mandamus would lie against the city to compel it to levy a tax to pay the debt.

Messrs. McKinnon and Merrick, for the relator, plaintiff in error.

I. The general law of November 6th, 1849, and the several supplemental acts of the legislature, under which were issued the coupons, or interest notes, on which the relator obtained judgment, constitute a contract.

'A contract,' says Chief Justice Marshall, 'is a compact between two or more persons, and is either executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed is one in which the object of the contract is performed, and this, says Blackstone, differs in nothing from a grant. A contract executed, as well as one that is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right.'

This language was used in reference to a grant of land, by the governor of a State, under a legislative act. It is simple and unambiguous, and determines, in an unequivocal manner, that the grant of a State is a contract within the clause of the Constitution referred to, and implies an agreement not to resume rights granted. The doctrine applies to an act of the legislature granting authority to a city to issue its bonds in consideration of railroad stock, for its private advantage and emolument, and provide for the payment thereof by special taxation.

These acts of the legislature are grants of special powers and privileges to the respondent, for its private advantage and benefit, and not for municipal purposes, and when acted upon, and bonds are issued and negotiated thereunder, the acts fall completely within Judge Marshall's definition of executed contracts.

Do the acts possess, in any less degree, the elements of a good contract than a charter granted by the supreme power of a State, to any given number of persons, or corporators, for religious or educational purposes? They do not; and no one, at this day, would contend that such a charter is not a contract within the meaning of the constitutional provision invoked.

In Dartmouth College v. Woodward, which was an action of trover that grew out of an attempt on the part of the legislature of New Hampshire, as revolutionary successor of George III, to revoke a charter of this kind, Judge Marshall, in delivering the opinion of the court, and speaking of the charter, holds the following language:

'This is plainly a contract to which the donors, the trustees, and the crown-to whose right and obligations New Hampshire succeeds-were the original parties. It is a contract made on a valuable consideration. It is a contract for the security and disposition of property. It is a contract on the faith of which real and personal estate has been conveyed to the corporation. It is, then, a contract within the letter of the Constitution, and within its spirit also.'The language of this case is applicable to the case at bar. Here we have a grant of special powers by legislative enactment, authorizing the respondent, as a private company, to purchase or subscribe for stock in certain railroad companies, and in payment therefor to issue its bonds, and provide for the annual interest on and the ultimate redemption of the bonds so issued, by the levy and collection of a special tax, to be set aside and held separate and distinct, for that and no other purpose whatever. Under these powers and privileges, stock is subscribed for, bonds issued and negotiated, pecuniary rights vested, and third parties, relying upon this legislative grant, pay out their money, and bon a fide become the owners of the bonds and coupons so issued.

But, probably, the most accurate definition of a contract by legislative grant, anywhere to be met with, is that laid down by Mr. Justice Washington, in this same case.

title: Von Hoffman v. City of Quincy


text: Talk:Von Hoffman v. City of Quincy

title: Talk:Von Hoffman v. City of Quincy


text:
Von Hoffman v. City of Quincy/Opinion of the Court

That learned judge, after stating that the question was whether the charter granted to Dartmouth College, on the 13th of December, 1769, was to be considered as a contract, then asks what is a contract? and, in answer, says:

'It may be defined to be a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised by the other. The ingredients requisite to form a contract, are: parties, consent, and an obligation to be created and dissolved.'

Apply this definition to the case at bar.

In the first place, there is a legislative grant of special powers, enabling the respondent, as a private company, to subscribe for stock in certain railroad companies, issue its bonds for the amount of such stock, and to provide for payment of the bonds so issued, with interest thereon, by the levy and collection of a special tax.

Following this grant of powers and privileges is the fact of a transaction in strict pursuance thereof.

Here, then, is every ingredient which, according to the definition, is requisite to form a contract-parties, consent, and obligation-whereby each party reciprocally acquired a right to what was promised by the other.

'A legislative act, conferring powers and privileges, is a grant which, when accepted, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right; and, therefore, the legislature is estopped by its own grant.'

A State legislature may bind the State by contract in regard to the exercise of the power of taxation.

The act of February 14th, 1863, attempting as it did to revoke the power vested in the corporate officers to levy a special tax to pay a debt incurred on the faith of the existence of the power, is not distinguishable from a law prohibiting the sheriff from selling on execution, except on certain conditions.

It follows as a corollary that the act of February 14th, 1863, so far as the same repeals the several laws and parts of laws under which the coupons, or interest notes, in question were issued, by prohibiting the Common Council of Quincy to levy and collect the special tax which those laws and parts of laws direct to be levied and collected as a means of paying its bonds and interest coupons issued thereunder, as it did, is an act impairing the obligation of contracts.

II. The court below had power by mandamus to compel the city to levy and collect a tax to pay the judgment obtained against it for interest on its bonds issued under the special authority abovementioned.

Messrs. Cushing and Ewing, Jr., contra, for the City of Quincy, defendant in error:

Mandamus lies only where there is a clear legal right to have a specific thing done by the public officer. And when the legislature has inhibited a city from levying a tax exceeding a certain limit, no court can compel it by mandamus to override the legislative limitation

The act of 1863, set up in the return, fixes the maximum of taxation by the city, to meet certain municipal expenses, and to pay the debts of the city, at fifty cents on the hundred dollars. This tax has been duly levied, to the limit authorized, and, therefore, the city has failed to execute no power of taxation. This act is clear and explicit, leaving no room for construction. The purposes of taxation are named. The intention of the act is free from question.

Does the act of 1863, set up in the return, 'impair the obligation of the contract?' We think that it does not.

Legislative power and control over the public revenue, over the entire subject of taxation, is a fundamental element of sovereignty which must ever remain with the State; a political power to be exercised consistently with the public interests, or necessities, and over which the courts have no jurisdiction. No contract, binding or controlling the legislature as to the collection or appropriation, under revenue laws, of future taxes, can, consistently with the sovereignty of the State, exist. And by virtue of no contract, capable of legal enforcement, can a vested interest be created in any one in such unlevied and uncollected taxes.

As a general rule, any act may be repealed by the authority that created it. There may, indeed, be legislative grants of property, or of franchises, which, becoming vested rights of property, assume the character of contracts; but such rights of property can never arise out of a delegation to municipal corporations of the power to levy taxes; nor out of a pledge of public faith.

The Dartmouth College case states the doctrine as to what are public or political corporations, and concedes plenary power over them in the legislature. This court held the college to be a private eleemosynary corporation, and hence, under the Constitution, properted from legislative control.

In the separate opinions of Washington and Story, JJ., the rule is declared to be, that corporations for the government of communities, such as 'towns, cities, and counties,' being 'public institutions,' are always subject to State control, by regulating, enlarging, or limiting their powers according to the will of the legislature.

Now, the City of Quincy was created by the legislature for the purposes of civil government alone-for public, not private ends. The State was the only party to the charter. No acceptance, by any one, of chartered privileges was essential to give it a political being, nor could the default of individuals forfeit the charter. It is but an instrument of government, exercising political power through the agency of public officers only. Individuals may be interested in having certain powers continued in or conferred upon the city, by reason of being its creditors or otherwise; but they are political powers, to be exercised only through public officers, in which the individual can have no more a contract right than he could in the powers of any one of the three departments of the State government, or of any officer thereof. Although the State may empower a municipal corporation to issue bonds, and provide for future taxation of property within the municipality to pay them, and bonds accordingly issue, this, in the sense of the Constitution of the United States, creates no contract between the holder and the State, that the State will not exercise its political authority over the subject of taxation therein.

To be a contract within the meaning of the Constitution, the right must be such that an action could be founded upon it in a court of justice.

Numerous adjudged cases support our view. In East Hartford v. The Hartford Bridge Company, in this court, a municipal corporation had obtained from the legislature ferry privileges, which were afterwards repealed. It was held that there was no violation of a contract; that the State, having the power to even abolish the corporation, could not confer upon it rights which it could not take away; that all powers conferred on it could be controlled or resumed by the legislature in virtue of its sovereignty, and that all grants to such public corporations are made upon condition that they may be defeated or resumed at the will of the legislature.

In Saterlee v. Matthewson, also, in this court, it was said that a statute which divests a right, even an existing right, of property, may be valid, provided the statute do not operate upon and impair a contract, and that it is only when the statute, by its own force, impairs or destroys the contract, that it is void under the Constitution.

'It is an unsound proposition,' the Supreme Court of New York declared in The People v. Morris, 'that political power conferred by the legislature can become a vested right, as against the government, in any individual or body of men.'

In Trustees v. Rider, the Supreme Court of Connecticut held that a statute granting money to a private corporation or individual, to be acquired in futuro, and through the official action of public agents, may be repealed at any time before the acquisition and application of the money, and the grant defeated before it is fully executed. Such a grant is not a perfect obligation capable of enforcement.

In Brandon v. Green, a Tennessee case, the Supreme Court of Tennessee decided that a statute giving a new remedy to defeat usurious contracts is constitutional, even as to existing contracts and judgments upon them.

In the Covington Railroad v. Kenton, the Court of Appeals of Kentucky say that provisions in a railroad charter, providing for county subscription to stock and the collection of a tax to pay the same, are no contract between the State and the railroad company, and may be repealed at any time before they are complete by full execution. The legislature may take away by statute what by statute is granted, unless by execution of the powers granted, private rights, in some definite thing or property, have become vested.

A legislative act, this court held in Railroad Co. v. Nesbit, cannot impair the obligation of a contract, unless at the time of its passage, some one not subject to legislative control, 'by contract with the State, has been vested with certain, perfect, absolute rights of property,' which rights are divested or impaired by such act.

It also held, in Beers v. Bingham, that 'the right to imprison (for debt) constitutes no part of the contract; and discharge of the person of the party from imprisonment does not impair the obligation of the contract, but leaves it in full force against his property and effects;' and, in Mason v. Hake, where A. have a prison-limits bond, and by an act of the legislature was discharged from arrest and imprisonment, that the act was valid.

The Supreme Court of California has gone as far as we now ask this court to do. In 1855, the legislature of the State passed a law for funding the debts of a county, changing the time and manner of payment, and prohibited payment of any debts not so funded. The court, on the matter coming before it, held, that as the county was a municipal body, the legislature had full control of its revenues and payment of its debts, and the law did not, therefore, impair the creditor's contract in the sense of the Constitution.

In Oriental Bank v. Frieze, the Supreme Court of Maine says:

'When a person by existing laws becomes entitled to a judgment, or to have certain real or personal property applied to the satisfaction of his debt, he is apt to regard the privilege as a vested right, not considering that it has its foundations only in the remedy, which may be changed, and the right thereby destroyed.'

It was accordingly held that the legislature may take away rights given by statute, until those rights are perfect, and vested by judgment recovered.

In the Sunbury Railroad Co. v. Cooper the Supreme Court of Pennsylvania lay down principles which justify fully the action of the court below in its refusal to grant a mandamus. The legislature of Pennsylvania had there pledged the revenues of the State canals to the payment of certain State bonds. Afterwards an act was passed for the sale of these canals, and different appropriation of the proceeds. The diversion of the pledge made by the legislature was held to be without legal redress.

Numerous cases are in effect similar with the principle above generally asserted by us.

Reply: The proposition stated on the other side, to wit, that 'legislative power and control over the public revenues is a fundamental element of sovereignty which must ever remain with the State,' and 'that no contract, binding or controlling the legislature, as to the collection or appropriation under revenue laws, of future taxes, can, consistently with the sovereignty of the State, exist,' may be admitted as a general proposition, subject to exception. But we are at a loss to apply it to the case under consideration. How is the levy and collection of a special annual tax, under and in pursuance of the powers in question, to be deemed an exercise of sovereignty which must ever remain with the State? A specific mode whereby the respondent is empowered to provide the necessary means of discharging debts contracted by it as a private company is no such exercise.

The moneys thus to be raised are in no manner or way connected with 'the public revenues.' Nor is the levy and collection of this special tax, under the laws, legally speaking, an exercise of sovereign powers belonging to the respondent in its character as a municipal or political corporation. The object and purpose of the tax, as well as the powers authorizing its levy and collection, are private, not public. Therefore, the respondent, in respect to the powers conferred by these laws, is to be regarded as a private corporation, standing on the same footing as would any individual or body of persons upon whom like privileges had been conferred. Or, in the language of the court in Bailey v. The Mayor, &c., of the City of New York, a case where this whole matter is fully and learnedly considered, 'The argument confounds the powers in question with those belonging to the defendants in their character as a municipal or public body, such as are granted exclusively for public purposes to counties, cities, towns, and villages, where the corporations have, if I may so speak, no private estate or interest in the grant.'

The proposition is based on, and is almost in the identical words of, a suggestion offered by the court in the New Hampshire case of Brewster v. Hough, to the effect that it is not competent for a legislature, by enactment, to make a contract perpetually exempting from taxation any portion of the property lying within the govermment; that the right to levy and collect taxes, being an element of sovereignty, it is so far inalienable, that no legislature can make a contract by which it shall be surrendered.

This, however, is not law. In The State of New Jersey v. Wilson, it is laid down by Chief Justice Marshall, as a settled rule, that a State may do so through its legislature, and that the law is a contract within the meaning and protection of the Constitution of the United States. If an act of the legislature, perpetually exempting from taxation certain portions of the State, or property of its citizens, lying within the government, is a contract, within the meaning and protection of the Constitution, it would seem to follow, as inevitable, that a law authorizing the citizens of a particular municipal locality, or division of the State, to levy and collect a special annual tax on the property, real and personal, lying within that locality, as a means or mode of paying indebtedness contracted by it under the authority and upon the faith of such law, is also a contract, which cannot be repealed to the prejudice of third persons having pecuniary rights or interests depending on the existence thereof, without violating the Constitution of the United States. Numerous cases are to this effect.

The case, it will be observed, comes here upon the petition, answer, and demurrer.

Mr. Justice SWAYNE delivered the opinion of the court, and after stating the case, proceeded thus:

The demurrer admits what is set forth in the answer. On the other hand, the answer, according to the law of pleading, admits what is alleged in the petition and not denied.

It is then a part of the case before us, that when the bonds were issued and negotiated there were statutes of Illinois in force which authorized the levying of a sufficient special tax to pay the coupons in question as they became due. Such statutes are so inconsistent with the provisions of the act of 1863, relied upon by the city, and cover the same ground, in such a manner that the act of 1863 unquestionably repeals them, if that act be valid for the purposes it was intended to accomplish.

The validity of the bonds and coupons is not denied. No question is made as to the judgment. The case turns upon the validity of the statute restricting the power of taxation left to the city within the narrow limits which it prescribes.

The answer says expressly that fifty cents on the hundred dollars' worth of property, which is all the statute allows to be levied to meet the debts and current expenses of the city, will not be sufficient for those purposes. The expenses will, of course, be first defrayed out of the fund. What the deficiency will be as to the debts, or whether anything applicable to them will remain, is not stated. So far, it appears that nothing has been paid upon these liabilities. And it was not claimed at the argument that the result under the statute would be different in the future.

The question to be determined is whether the statute, in this respect, is valid, or whether the legislature transcended its power in enacting it.

The duty which the court is called upon to perform is always one of great delicacy, and the power which it brings into activity is only to be exercised in cases entirely free from doubt.

The Constitution of the United States declares (Art. I, § 10), that 'no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.'

The case of Fletcher v. Peck, was the first one in this court in which this important provision came under consideration. It was held that it applied to all contracts, executed and executory, 'whoever may be parties to them.' In that case the legislature of Georgia had repealed an act passed by a former legislature, under which the plaintiff in error had acquired his title by mesne conveyances from the State. The court pronounced the repealing act within the inhibition of the Constitution, and therefore void. Chief Justice Marshall said: 'The validity of this rescinding act might well be doubted were Georgia a single sovereign power; but Georgia cannot be viewed as a single, unconnected sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. She is a part of a large empire. She is a member of the American Union, and that Union has a Constitution, the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several States which none claim a right to pass.' This case was followed by those of New Jersey v. Willson, and Terret v. Taylor. The principles which they maintain are now axiomatic in American jurisprudence, and are no longer open to controversy.

It is also settled that the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement. Illustrations of this proposition are found, in the obligation of the debtor to pay interest after the maturity of the debt, where the contract is silent; in the liability of the drawer of a protested bill to pay exchange and damages, and in the right of the drawer and indorser to require proof of demand and notice. These are as much incidents and conditions of the contract as if they rested upon the basis of a distinct agreement.

In Green v. Biddle, the subject of laws which affect the remedy was elaborately discussed. The controversy grew out of a compact between the States of Virginia and Kentucky. It was made in contemplation of the separation of the territory of the latter from the former, and its erection into a State, and is contained in an act of the legislature of Virginia, passed in 1789, whereby it was provided 'that all private rights and interests within' the District of Kentucky 'derived from the laws of Virginia prior to such separation shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State.' By two acts of the legislature of Kentucky, passed respectively in 1797 and 1812, several new provisions relating to the consequences of a recovery in the action of ejectment-all eminently beneficial to the defendant, and onerous to the plaintiff-were adopted into the laws of that State. So far as they affected the lands covered by the compact, this court declared them void. It was said: 'It is no answer that the acts of Kentucky now in question are regulations of the remedy, and not of the right to the lands. If these acts so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, they are just as much a violation of the compact as if they overturned his rights and interests.'

In Bronson v. Kinzic, the subject was again fully considered. A mortgage was executed in Illinois containing a power of sale. Subsequently, an act of the legislature was passed which required mortgaged premises to be sold for not less than two-thirds of their appraised value, and allowed the mortgagor a year after the sale to redeem. It was held that the statute, by thus changing the pre-existing remedies, impaired the obligation of the contract, and was therefore void.

In McCracken v. Hayward, the same principle, upon facts somewhat varied, was again sustained and applied. A statutory provision that personal property should not be sold under execution for less than two-thirds of its appraised value was adjudged, so far as it affected prior contracts, to be void, for the same reason.

In Sturges v. Crowninshield, the question related to a law discharging the contract. It was held that a State insolvent or bankrupt law was inoperative as to contracts which existed prior to its passage.

In Ogden v. Saunders, the question was as to the effect of such a law upon a subsequent contract. It was adjudged to be valid, and a discharge of the contract according to its provisions was held to be conclusive.

A statute of frauds embracing a pre-existing parol contract not before required to be in writing would affect its validity. A statute declaring that the word ton should thereafter be held, in prior as well as subsequent contracts, to mean half or double the weight before prescribed, would affect its construction. A statute providing that a previous contract of indebtment may be extinguished by a process of bankruptcy would involve its discharge, and a statute forbidding the sale of any of the debtor's property, under a judgment upon such a contract, would relate to the remedy.

It cannot be doubted, either upon principle or authority, that each of such laws passed by a State would impair the obligation of the contract, and the last-mentioned not less than the first. Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfilment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of a contract 'is the law which binds the parties to perform their agreement.' The prohibition has no reference to the degree of impairment. The largest and least are alike forbidden. In Green v. Biddle, it was said: 'The objection to a law on the ground of its impairing the obligation of a contract can never depend upon the extent of the change which the law effects in it. Any deviation from its terms by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with those which are, however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation. Upon this principle it is that if a creditor agree with his debtor to postpone the day of payment, or in any other way to change the terms of the contract, without the consent of the surety, the latter is discharged, although the change was for his advantage.'

'One of the tests that a contract has been impaired is that its value has, by legislation, been diminished. It is not, by the Constitution, to be impaired at all. This is not a question of degree or cause, but of encroaching, in any respect, on its obligation-dispensing with any part of its force.'

This has reference to legislation which affects the contract directly, and not incidentally or only by consequence.

The right to imprison for debt is not a part of the contract. It is regarded as penal rather than remedial. The States may abolish it whenever they think proper. They may also exempt from sale, under execution, the necessary implements of agriculture, the tools of a mechanic, and articles of necessity in household furniture. It is said: 'Regulations of this description have always been considered in every civilized community as properly belonging to the remedy, to be exercised by every sovereignty according to its own views of policy and humanity.'

It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced the act is within the prohibition of the Constitution, and to that extent void.

If these doctrines were res integroe the consistency and soundness of the reasoning which maintains a distinction between the contract and the remedy-or, to speak more accurately, between the remedy and the other parts of the contract-might perhaps well be doubted. But they rest in this court upon a foundation of authority too firm to be shaken; and they are supported by such an array of judicial names that it is hard for the mind not to feel constrained to believe they are correct. The doctrine upon the subject established by the latest adjudications of this court render the distinction one rather of form than substance.

When the bonds in question were issued there were laws in force which authorized and required the collection of taxes sufficient in amount to meet the interest, as it accrued from time to time, upon the entire debt. But for the act of the 14th of February, 1863, there would be no difficulty in enforcing them. The amount permitted to be collected by that act will be insufficient; and it is not certain that anything will be yielded applicable to that object. To the extent of the deficiency the obligation of the contract will be impaired, and if there be nothing applicable, it may be regarded as annulled. A right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.

It is well settled that a State may disable itself by contract from exercising its taxing power in particular cases. It is equally clear that where a State has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied. The State and the corporation, in such cases, are equally bound. The power given becomes a trust which the donor cannot annul, and which the donee is bound to execute; and neither the State nor the corporation can any more impair the obligation of the contract in this way than in any other.

The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The act of 1863 is, so far as it affects these bonds, a nullity. It is the duty of the city to impose and collect the taxes in all respects as if that act had not been passed. A different result would leave nothing of the contract, but an abstract right-of no practical value-and render the protection of the Constitution a shadow and a delusion.

The Circuit Court erred in overruling the application for a mandamus. The judgment of that court is REVERSED, and the cause will be remanded, with instructions to proceed

IN CONFORMITY WITH THIS OPINION.


text: Talk:Von Hoffman v. City of Quincy/Opinion of the Court