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The Ku-Klux Cases/Opinion of the Court

This case originates in this court by an application for a writ of habeas corpus on the part of Jasper Yarbrough and seven other persons, who allege that they are confined by the jailer of Fulton county in the custody of the United States marshal for the Northern district of Georgia, and that the trial, conviction, and sentence in the circuit court of the United States for that district, under which they are held, were illegal, null, and void. The court, on the filing of this petition, issued a rule on the marshal, or on any person in whose custody the prisoners might be found, to show cause why the writ of habeas corpus should not issue for their release. It appears, by the returns made to this rule, that the sentence of the court, which ordered their imprisonment in the Albany penitentiary, in the state of New York, at hard labor for the term of two years, has been so far executed that they are now in that prison. The rule having been served on John McEwan, superintendent of the penitentiary, he makes return that he holds the prisoners by virtue of the sentence of the circuit court for the Northern district of Georgia, and annexes to his return a transcript of the proceeding in that court. As this return is precisely the same that the superintendent would make if the writ of habeas corpus had been served on him, the court here can determine the right of the prisoners to be released on this rule to show cause as correctly and with more convenience in the administration of justice, than if the prisoners were present under the writ in the custody of the superintendent; and such is the practice of this court. That this court has no general authority to review on error or appeal the judgments of the circuit courts of the United States in cases within their criminal jurisdiction is beyond question; but it is equally well settled that when a prisoner is held under the sentence of any court of the United States in regard to a matter wholly beyond or without the jurisdiction of that court, it is not only within the authority of the supreme court, but it is its duty, to inquire into the cause of commitment when the matter is properly brought to its attention, and if found to be as charged, a matter of which such court had no jurisdiction, to discharge the prisoner from confinement. Ex parte Kearney, 7 Wheat. 38; Ex parte Wells, 18 How. 307; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18.

It is, however, to be carefully observed that this latter principle does not authorize the court to convert the writ of habeas corpus into a writ of error, by which the errors of law committed by the court that passed the sentence can be reviewed here; for if that court had jurisdiction of the party, and of the offense for which he was tried, and has not exceeded its powers in the sentence which it pronounced, this court can inquire no further. This principle disposes of the argument made before us on the insufficiency of the indictments under which the prisoners in this case were tried. Whether the indictment sets forth in comprehensive terms the offense which the statute describes and forbids, and for which it prescribes a punishment, is in every case a question of law which must necessarily be decided by the court in which the case originates, and is therefore clearly within its jurisdiction. Its decision on the conformity of the indictment to the provisions of the statute may be erroneous; but, if so, it is an error of law made by a court acting within its jurisdiction, which could be corrected on a writ of of error, if such writ was allowed, but which cannot be looked into on a writ of habeas corpus limited to an inquiry into the existence of jurisdiction on the part of that court. This principle is decided in Ex parte Watkins, 3 Pet. 203, and Ex parte Parks, 93 U.S. 21.

This, however, leaves for consideration the more important question-the one mainly relied on by counsel for petitioners whether the law of congress, as found in the Revised Statutes of the United States, under which the prisoners are held, is warranted by the constitution, or, being without such warrant, is null and void. If the law which defines the offense and prescribes its punishment is void, the court was without jurisdiction, and the prisoners must be discharged. Though several different sections of the Revised Statutes are brought into the discussion as the foundation of the indictments found in the record, we think only two of them demand our attention here, namely, sections 5508 and 5520. They are in the following language:

'Sec. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office or place of honor, profit, or trust created by the constitution or laws of the United States.

'Sec. 5520. If two or more persons in any state or territory conspire to prevent, by force, intimidation, or threat, any citizen who is lawfully entitled to vote from giving his support or advocacy, in a legal manner, towards or in favor of the election of any lawfully qualified person as an elector for president or vice-president, or as a member of the congress of the United States, or to injure any citizen in person or property on account of such support or advocacy, each of such persons shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment.'

The indictments, four in number, on which petitioners were tried, charge in each one all of the defendants with a conspiracy under these sections, directed against a different person in each indictment. On the trial the cases were consolidated, and as each indictment is in the identical language of all the others, except as to the name of the person assaulted and the date of the transaction, the copy which is here presented will answer for all of them:

'We, the grand jurors of the United States, chosen, selected,     and sworn in and for the Northern district of Georgia, upon      our oaths, present: That heretofore, to-wit, on the      twenty-fifth day of July, in the year of our Lord one      thousand eight hundred and eighty-three, Jasper Yarbrough,      James Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel      Streetman, Bold Emory, State Lemmons, Jake Hayes, and E. H.      Green, all late of said Northern district of Georgia, did,      within the said Northern district of Georgia, and within the      jurisdiction of this court, commit the offense of conspiracy,      for that the said Jasper Yarbrough, James Yarbrough, Dilmus      Yarbrough, Neal Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake      Hayes, and E. H. Green did then and there, at the time and      place aforesaid, combine, conspire, and confederate together,      by force, to injure, oppress, threaten, and intimitate Berry      Saunders, a person of color, and a citizen of the United      States of America of African descent, on account of his race,      color, and previous condition of servitude, in the full      exercise and enjoyment of the right and privilege of suffrage      in the election of a lawfully qualified person as a member of      the congress of the United States of America, and because the      said Berry Saunders had so exercised the same, and on account      of such exercise, which said right and privilege of suffrage      was secured to the said BerrySaunders by the constitution and      laws of the United States of America, the said Berry Saunders      being then and there lawfully entitled to vote in said      election; and, having so then and there conspired, the said      Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough, Neal      Yarbrough, Lovel Streetman, Bold Emory, State Lemmons, Jake      Hayes, and E. H. Green did unlawfully, feloniously, and      willfully beat, bruise, wound, and maltreat the said Berry      Saunders, contrary to the form of the statute in such case      made and provided, and against the peace and dignity of the      United States of America.

'Second Count. And the jurors aforesaid, upon their oaths     aforesaid, do further present: That heretofore, to-wit, on      the twenty-fifth day of January, in the year of our Lord one      thousand eight hundred and eighty-three, Jasper Yarbrough,      James Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel      Streetman, Bold Emory, State Lemmons, Jake Hayes, and E. H.      Green, all late of said Northern district of Georgia, within      the said Northern district of Georgia, and within the      jurisdiction of this court, did commit the offense of      conspiracy, for that the said Jasper Yarbrough, James      Yarbrough, Dilmus Yarbrough, Neal Yarbrough, Lovel Streetman,      Bold Emory, State Lemmons, Jake Hayes, and E. H. Green,      having then and there conspired together, by force, to      injure, oppress, threaten, and intimidate Berry Saunders, a      person of color, and a citizen of the United States of      America of African descent, on account of his race, color,      and previous condition of servitude, did then and there      unlawfully, willfully, and feloniously go in disguise on the      highway, and on the premises of Berry Saunders, with the      intent to prevent and hinder his free exercise and enjoyment of the right to vote at an election for a lawfully      qualified person as a member of the congress of the United      States of America, which said right had then and there been      guarantied to the said Berry Saunders by the constitution and      laws of the United States of America, the said Berry Saunders      being then and there lawfully qualified to vote at said      election; and having so conspired, with intent as aforesaid,      the said Jasper Yarbrough, James Yarbrough, Dilmus Yarbrough,      Neal Yarbrough, Lovel Streetman, Bold Emory, State Lemmons,      Jake Hayes, and E. H. Green did then and there beat, bruise,      wound, and maltreat the said Berry Saunders, contrary to the      form of the statute in such case made and provided, and      against the peace and dignity of the United States of      America.

'EMORY SPEER, U.S. Atty.

'A true bill. October 12, 1883.

'J. C. KIRKPATRICK, Foreman.'

Stripped of its technical verbiage, the offense charged in this indictment as that the defendants conspired to intimidate Berry Saunders, a citizen of African descent, in the exercise of his right to vote for a member of the congress of the United States, and in the execution of that conspiracy they beat, bruised, wounded, and otherwise maltreated him; and in the second count that they did this on account of his race, color, and previous condition of servitude, by going in disguise and assaulting him on the public highway and on his own premises. If the question were not concluded in this court, as we have already seen that it is by the decision of the circuit court, we entertain no doubt that the conspiracy here described is one which is embraced within the provisions of the Revised Statutes which we have cited. That a government whose essential character is republican, whose executive head and legislative body are both elective, whose numerous and powerful branch of the legislature is elected by the people directly, has no power by appropriate laws to secure this election from the influence of violence, of corruption, and of fraud, is a proposition so startling as to arrest attention and demand the gravest consideration. If this government is anything more than a mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends, from violence and corruption. If it has not this power, it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.

The proposition that it has no such power is supported by the old argument often heard, often repeated, and in this court never assented to, that when a question of the power of congress arises the advocate of the power must be able to place his finger on words which expressly grant it. The brief of counsel before us, though directed to the authority of that body to pass criminal laws, uses the same language. Because there is no express power to provide for preventing violence exercised on the voter as a means of controlling his vote, no such law can be enacted. It destroys at one blow, in construing the constitution of the United States, the doctrine universally applied to all instruments of writing, that what is implied is as much a part of the instrument as what is expressed. This principle, in its application to the constitution of the United States, more than to almost any other writing, is a necessity, by reason of the inherent inability to put into words all derivative powers,-a difficulty which the instrument itself recognizes by conferring on congress the authority to pass all laws necessary and proper to carry into execution the powers expressly granted, and all other powers vested in the government or any branch of it by the constitution. Article 1, § 8, cl. 18.

We know of no express authority to pass laws to punish theft or burglary of the treasury of the United States. Is there therefore no power in congress to protect the treasury by punishing such theft and burglary? Are the mails of the United States, and the money carried in them, to be left at the mercy of robbers and of thieves who may handle the mail, because the constitution contains no express words of power in congress to enact laws for the punishment of those offenses? The principle, if sound, would abolish the entire criminal jurisdiction of the courts of the United States, and the laws which confer that jurisdiction. It is said that the states can pass the necessary law on this subject, and no necessity exists for such action by congress. But the existence of state laws punishing the counterfeiting of the coin of the United States has never been held to supersede the acts of congress passed for that purpose, or to justify the United States in failing to enforce its own laws to protect the circulation of the coin which it issues. It is very true that while congress at an early day passed criminal laws to punish piracy with death. and for punishing all ordinary offenses against person and property committed within the District of Columbia, and in forts, arsenals, and other places within the exclusive jurisdiction of the United States, it was slow to pass laws protecting officers of the government from personal injuries inflicted while in discharge of their official duties within the states. This was not for want of power, but because no occasion had arisen which required such legislation, the remedies in the state courts for personal violence having proved sufficient.

Perhaps the earliest attempt of congress to protect government officers while in the exercise of their duty in a hostile community, grew out of the nullification ordinance of South Carolina, and is found in the 'Act further to provide for the collection of duties on imports.' That act gave a right of action in the courts of the United States to any officer engaged in the collection of customs who should receive any injury to his person or property for or on account of any act done by him under any law of the United States for the protection of the revenues. And where any suit or prosecution should be commenced against him in a state court on account of any act done under the revenue laws of the United States or under color thereof, the case might, on his petition, at any time before trial, be removed into the circuit court of the United States. Act of March 2, 1833, (4 St. at Large, 632.)

When early in the late civil war the enforcement of the acts of congress for obtaining soldiers by draft, brought the officers engaged in it into hostile neighborhoods, it was found necessary to pass laws for their protection. Accordingly, in 1863, an act was passed making it a criminal offense to assault or obstruct any officer while engaged in making the draft, or in any service in relation thereto. 12 St. 371. And the next year the act was amended by making it applicable to the enrollment and resistance made thereto, and adding that if any assault on any officer or other person engaged in making such enrollment shall result in death, it shall be murder and punished accordingly. 13 St. p. 8, § 12. Under this statute Scott was found guilty of murder in the circuit court of the United States for the district of Indiana, and the case was brought here by a certificate of division of opinion. It was not doubted for a moment by court or counsel that congress had the power to pass these statutes, but it was held that serving notice of a draft, in doing which the man was killed, was not a service in the enrollment, as charged in the indictment. U.S. v. Scott 3 Wall. 642.

In the case of U.S. v. Gleason, Woolw. 75, S.C.. Id. 128, the defendant was convicted and sentneced to death for the murder of an enrolling officer while engaged in making the enrollment, and his sentence being commuted to imprisonment for life, he died in the Iowa penitentiary while undergoing the modified sentence. It was never suggested that congress had no power to pass the law under which he was convicted.

So, also, has the congress been slow to exercise the powers expressly conferred upon it in relation to elections by the fourth section of the first article of the constitution. This section declares that 'the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress may at any time make or alter such regulations, except as to the place of choosing senators.' It was not until 1842 that congress took any action under the power here conferred, when, conceiving that the system of electing all the members of the house of representatives from a state by general ticket, as it was called,-that is, every elector voting for as many names as the state was entitled to representatives in that house,-worked injustice to other states which did not adopt that system, and gave an undue preponderance of power to the political party which had a majority of votes in the state, however small, enacted that each member should be elected by a separate district, composed of contiguous territory. 5 St. 491. And to remedy more than one evil arising from the election of members of congress occurring at different times in the different states, congress, by the act of February 2, 1872, 30 years later, required all the elections for such members to be held on the Tuesday after the first Monday in November in 1876, and on the same day of every second year thereafter.

The frequent failures of the legislatures of the states to elect senators at the proper time, by one branch of the legislature voting for one person and the other branch for another person, and refusing in any manner to reconcile their differences, led congress to pass an act which compelled the two bodies to meet in joint convention, and fixing the day when this should be done, and requiring them so to meet on every day thereafter and vote for a senator until one was elected. In like manner congress has fixed a day, which is to be the same in all the states, when the electors for president and vice-president shall be appointed.

Now, the day fixed for electing members of congress has been established by congress without regard to the time set for election of state officers in each state, and but for the fact that the state legislatures have, for their own accommodation, required state elections to be held at the same time, these elections would be held for congressmen alone at the same time fixed by the act of congress. Will it be denied that it is in the power of that body to provide laws for the proper conduct of those elections? To provide, if necessary, the officers who shall conduct them and make return of the result? And especially to provide, in an election held under its own authority, for security of life and limb to the voter while in the exercise of this function? Can it be doubted that congress can, by law, protect the act of voting, the place where it is done, and the man who votes from personal violence or intimidation, and the election itself from corruption or fraud? If this be so, and it is not doubted, are such powers annulled because an election for state officers is held at the same time and place? Is it any less important that the election of members of congress should be the free choice of all the electors, because state officers are to be elected at the same time? Ex parte Siebold, 100 U.S. 371. These questions answer themselves; and it is only because the congress of the United States, through long habit and long years of forbearance, has, in deference and respect to the states, refrained from the exercise of these powers that they are now doubted. But when, in the pursuance of a new demand for action, that body, as it did in the cases just enumerated, finds it necessary to make additional laws for the free, the pure, and the safe exercise of this right of voting, they stand upon the same ground, and are to be upheld for the same reasons.

It is siad that the parties assaulted in these cases are not officers of the United States, and their protection in exercising the right to vote by congress does not stand on the same ground. But the distinction is not well taken. The power in either case arises out of the circumstance that the function in which the party is engaged or the right which he is about to exercise is dependent on the laws of the United States. In both cases it is the duty of that government to see that he may exercise this right freely, and to protect him from violence while so doing, or on account of so doing. This duty does not arise solely from the interest of the party concerned, but from the necessity of the government itself that its service shall be free from the adverse influence of force and fraud practiced on its agents, and that the votes by which its members of congress and its president are elected shall be the free votes of the electors, and the officers thus chosen the free and uncorrupted choice of those who have the right to take part in that choice.

This proposition answers, also, another objection to the constitutionality of the laws under consideration, namely, that the right to vote for a member of congress is not dependent upon the constitution or laws of the United States, but is governed by the law of each state respectively. If this were conceded, the importance to the general government of having the actual election the voting for those members-free from force and fraud is not diminished by the circumstance that the qualification of the voter is determined by the law of the state where he votes. It equally affects the government; it is as indispensable to the proper discharge of the great function of legislating for that government, that those who are to control this legislation shall not owe their election to bribery or violence, whether the class of persons who shall vote is determined by the law of the state, or by the laws of the United States, or by their united result. But it is not correct to say that the right to vote for a member of congress does not depend on the constitution of the United States. The office, if it be properly called an office, is created by that constitution, and by that alone. It also declares how it shall be filled, namely, by election. Its language is: 'The house of representatives shall be composed of members chosen every second year by the people of the several states; and the electors in each state shall have the same qualifications requisite for electors of the most numerous branch of the state legislature.' Article 1, § 2. The states, in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for members of congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the constitution of the United States says the same persons shall vote for members of congress in that state. It adopts the qualification thus furnished as the qualification of its own electors for members of congress. It is not true, therefore, that electors for members of congress owe their right to vote to the state law, in any sense which makes the exercise of the right to depend exclusively on the law of the state.

Counsel for petitioners, seizing upon the expression found in the opinion of the court in the case of Minor v. Happersett, 21 Wall. 178, that 'the constitution of the United States does not confer the right of suffrage upon any one,' without reference to the connection in which it is used, insists that the voters in this case do not owe their right to vote in any sense to that instrument. But the court was combating the argument that this right was conferred on all citizens, and therefore upon women as well as men. In opposition to that idea, it was said the constitution adopts as the qualification for voters of members of congress that which prevails in the state where the voting is to be done; therefore, said the opinion, the right is not definitely conferred on any person or class of persons by the constitution alone, because you have to look to the law of the state for the description of the class. But the court did not intend to say that when the class or the person is thus ascertained, his right to vote for a member of congress was not fundamentally based upon the constitution, which created the office of member of congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors. The fifteenth amendment of the constitution, by its limitation on the power of the states in the exercise of their right to prescribe the qualifications of voters in their own elections, and by its limitation of the power of the United States over that subject, clearly shows that the right of suffrage was considered to be of supreme importance to the national government, and was not intended to be left within the exclusive control of the states. It is in the following language:

'Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.

'Sec. 2. The congress shall have power to enforce this article by appropriate legislation.' While it is quite true, as was said by this court in U.S. v. Reese, 92 U.S. 218, that this article gives no affirmative right to the colored man to vote, and is designed primarily to prevent discrimination against him whenever the right to vote may be granted to others it is easy to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding states had not removed from their constitutions the words 'white man' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, being paramount to the state law, and a part of the state law, it annulled the discriminating word 'white,' and thus left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a state which should give the right of voting exclusively to white people, whether they be men or women. Neal v. Delaware, 103 U.S. 370. In such cases this fifteenth article of amendment does, proprio vigore, substantially confer on the negro the right to vote, and congress has the power to protect and enforce that right.

In the case of U.S. v. Reese, so much relied on by counsel, this court said, in regard to the fifteenth amendment, that 'it has invested the citizens of the United States with a new constitutional right which is within the protecting power of congress. That right is an exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.' This new constitutional right was mainly designed for citizens of African descent. The principle, however, that the protection of the exercise of this right is within the power of congress, is as necessary to the right of other citizens to vote as to the colored citizen, and to the right to vote in general as to the right to be protected against discrimination. The exercise of the right in both instances is guarantied by the constitution, and should be kept free and pure by congressional enactments whenever that is necessary.

The reference to cases in this court in which the power of congress under the first section of the fourteenth amendment has been held to relate alone to acts done under state authority can afford petitioners no aid in the present case. For, while it may be true that acts which are mere invasions of private rights, which acts have no sanction in the statutes of a state, or which are not committed by any one exercising its authority, are not within the scope of that amendment, it is quite a different matter when congress undertakes to protect the citizen in the exercise of rights conferred by the constitution of the United States, essential to the healthy organization of the government itself. But it is a waste of time to seek for specific sources of the power to pass these laws. Chancellor KENT, in the opening words of that part of his Commentaries which treats of the government and constitutional jurisprudence of the United States, says: 'The government of the United States was created by the free voice and joint will of the people of American for their common defense and general welfare. Its powers apply to those great interests which relate to this country in its national capacity, and which depend for their protection on the consolidation of the Union. It is clothed with the principal attributes of political sovereignty, and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national greatness.' 1 Kent, Comm. 201.

It is as essential to the successful working of this government that the great organisms of its executive and legislative branches should be the free choice of the people, as that the original form of it should be so. In absolute governments, where the monarch is the source of all power, it is still held to be important that the exercise of that power shall be free from the influence of extraneous violence and internal corruption. In a republican government, like ours, where political power is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these elections by violence and by corruption is a constant source of danger. Such has been the history of all republics, and, though ours has been comparatively free from both these evils in the past, no lover of his country can shut his eyes to the fear of future danger from both sources. If the recurrence of such acts as these prisoners stand convicted of are too common in one quarter of the country, and give omen of danger from lawless violence, the free use of money in elections, arising from the vast growth of recent wealth in other quarters, presents equal cause for anxiety. If the government of the United States has within its constitutional domain no authority to provide against these evils,-if the very sources of power may be poisoned by corruption or controlled by violence and outrage, without legal restraint,-then, indeed, is the country in danger, and its best powers, its highest purposes, the hopes which it inspires, and the love which enshrines it, are at the mercy of the combinations of those who respect no right but brute force on the one hand, and unprincipled corruptionists on the other.

The rule to show cause in this case is discharged, and the writ of habeas corpus denied.

title: The Ku-Klux Cases/Opinion of the Court


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Atchison Company v. Denver N O R Company

This is a bill in equity filed by the Denver & New Orleans Railroad company, a Colorado corporation, owning and operating a railroad in that state between Denver and Pueblo, a distance of about 125 miles, against the Atchison, Topeka & Santa Fe Railroad Company, a Kansas corporation, owning and operating a railroad in that state from the Missouri river, at Kansas City, westerly to the Colorado state line, and also operating from there, under a lease, a road in Colorado from the state line to Pueblo, built by the Pueblo & Arkansas Valley Railroad Company, a Colorado corporation. The two roads so operated by the Atchison, Topeka & Santa Fe Company form a continuous line of communication from Kansas City to Pueblo, about 634 miles. The general purpose of the suit is to compel the Atchison, Topeka & Santa Fe Company to unite with the Denver & New Orleans Company in forming a through line of railroad transportation to and from Denver over the Denver & New Orleans road, with all the privileges as to exchange of business, division of rates, sale of tickets, issue of bills of lading, checking of baggage, and interchange of cars that are or may be customary with connecting roads, or that are or may be granted to the Denver & Rio Grande Railroad Company, another Colorado corporation, also owning and operating a road parallel to that of the Denver & New Orleans Company between Denver and Pueblo, or to any other railroad company competing with the Denver and New Orleans for Denver business.

The facts on which the case depends are these: When the Atchison, Topeka & Santa Fe Company reached Pueblo with its line it had no connection of its own with Denver. The Denver & Rio Grande road was built and running between Denver and Pueblo, but the gauge of its track was different from that of the Atchison, Topeka & Santa Fe. Other companies occupying different routes had, at the time, substantially the control of the transportation of passengers and freight between the Missouri river and Denver. The Atchison, Topeka & Santa Fe Company, being desirous of competing for this business, entered into an arrangement, as early as 1879, with the Denver & Rio Grande Company for the formation of a through line of transportation for that purpose. By this arrangement a third rail was to be put down on the track of the Denver & Rio Grande road, so as to admit of the passage of cars continuously over both roads, and terms were agreed on for doing the business and for the division of rates. The object of the parties was to establish a new line which could be worked with rapidity and economy, in competition with the old ones. In the division of prices the Denver & Rio Grande Company was allowed compensation at the rate of a mile and a half for every mile of actual haul. As the distance from the Missouri river to Pueblo by this route was about the same as to Denver by the other routes, the through rates over this line to and from Denver were usually made about the same as the rates to and from Pueblo. This was necessary to compete successfully with other lines for Denver business. Afterwards another agreement, known as the 'tripartite agreement,' was entered into between the Atchison, Topeka & Snata Fe, the Denver & Rio Grande, and the Union Pacific Railroad Companies, by which rates were established between Denver and the Missouri river, and arrangements made for a division of business among these companies, and for the regulation of their conduct to wards each other, with a view to avoiding competition between themselves or from others.

In 1882 the Denver & New Orleans Company completed its road between Denver and Pubelo, and connected its track with that of the Atchison, Topeka & Santa Fe, in Pueblo, twelve or fifteen hundred feet easterly from the junction of the Denver & Rio Grande, and about three-quarters of a mile from the union depot, at which the Atchison, Topeka & Santa Fe and the Denver & Rio Grande interchange their business, and where each stops its trains regularly to take on and let off passengers and receive and deliver freight. The Denver & New Orleans Company has erected at its junction with the Atchison, Topeka & Santa Fe platforms and other accommodations for the interchange of business, and before this suit was begun the general superintendent of the Denver & New Orleans Company made a request in writing of the general manager of the Atchison, Topeka & Santa Fe as follows: 'That through bills of lading be given via your line and ours, and that you allow all freight consigned via Denver & New Orleans Railroad to be delivered this company at point of junction, and on such terms as exist between your road and any other line or lines; that you allow your cars, or cars of any foreign line, destined for points reached by the Denver & New Orleans Railroad, to be delivered to this company and hauled to destination in same manner as interchanged with any other line; that you allow tickets to be placed on sale between points on line of Denver & New Orleans Railroad and those on line of Atchison, Topeka & Santa Fe Railroad, or reached by either line; that a system of through checking of baggage be adopted; that a transfer of United States mail be made at point of junction. In matter of settlements between the two companies for earnings and charges due, we will settle daily on delivery of freight to this line; for mileage due for car service, and for amounts due for tickets interchanged, we agree to settle monthly, or in any other manner adopted by your line, or as is customary between railroads in such settlements.' This request was refused, and the Atchison, Topeka & Santa Fe Company continued its through business with the Denver & Rio Grande as before, but declined to receive or deliver freight or passengers at the junction of the Denver & New Orleans road, or to give or take through bills of lading, or to sell or receive through tickets, or to check baggage over that line. All passengers or freight coming from or destined for that line were taken or delivered at the regular depot of the Atchison, Topeka & Santa Fe Company in Pueblo, and the prices charged were according to the regular rates to and from that point, which were more than the Atchison, Topeka & Santa Fe received on a division of through rates to and from Denver under its arrangement with the Denver & Rio Grande Company.

By the constitution of Colorado, art. 15, corporations can only be formed in that state under general laws, subject to alteration and repeal, and the law under which the Pueblo & Arkansas Valley Railroad Company was organized, conferred power, among others: 'Second, to cross, intersect, or connect its railroad with any other railway; third, to connect at state line with roads of other states and territories; fourth, to receive and convey passengers and property on its railway; fifth, to erect and maintain all necessary and convenient buildings and stations, fixtures and machinery, for the convenience, accommodation, and use of passengers, freights, and business interests, or which may be necessary for the construction and operation of said railway; sixth, to regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor.' Gen. Laws Colo. (1877,) p. 181.

Sections 4 and 6 of article 15 of the constitution of Colorado are as follows:

'Sec. 4. All railways shall be public highways, and all railroad companies shall be common carriers. Any association or corporation organized for the purpose shall have the right to construct and operate railroad between any designated points within this state, and to connect at the state line with railroads of other states or territories. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad.

'Sec. 6. All individuals, associations, and corporations shall have equal rights to have persons and property transported over any railroad in this state, and no undue or unreasonable discrimination shall be made in charges or facilities for transportation of freights or passengers within the state, and no railroad company, nor any lessee, manager, or employe thereof, shall give any preference to individuals, associations, or corporations in furnishing cars or motive power.'

No other provisions of the constitution or of the statutes of the state have been referred to as affecting the questions here involved.

A large amount of testimony is found in the record as to the custom of connected roads in respect to the interchange of business and the formation of through lines. From this it appears that, while through business is very generally done on through lines formed by an arrangement between connecting roads, no road can make itself a part of such a line, so as to participate in its special advantages, without the consent of the others. Oftentimes new roads, opening up new points, are admitted at once on notice, without a special agreement to that effect, or in reference to details; still, if objection is made, the new road must be content with the right to do business over the line in such a way as the law allows to others that have no special contract interest in the line itself. The manner in which its business must be done by the line will depend not alone on the connection of its track with that of the line, but upon the duty which the line as a carrier owes to it as a customer. No usage has been established which requires one of the component companies of a connecting through line to grant to a competitor of any of the other companies the same privileges that are accorded to its associates, simply because the tracks of the competing company unite with its own and admit of a free and convenient interchange of business. The line is made up by the contracting companies to do business as carriers for the public; and companies, whose roads do not form part of the line, have no other rights in connection with it than such as belong to the public at large, unless special provision is made therefor by the legislature or the contracting companies.

Upon this state of facts the circuit court entered a decree requiring the Atchison, Topeka & Santa Fe Company to stop all its passenger trains at the platform built by the Denver & New Orleans Company where the two roads joined, and to remain there long enough to take on and let off passengers with safety, and to receive and deliver express matter and the mails. It also required the Atchison, Topeka & Santa Fe Company to keep an agent there, to sell tickets, check baggage, and bill freight. All freight trains were to be stopped at the same place whenever there was freight to be taken on or delivered, if proper notice was given. While the Atchison, Topeka & Santa Fe Company was not required to issue or recognize through bills of lading embracing the Denver & New Orleans road in the route, or to sell or recognize through tickets of the same character, or to check baggage in connection with that road, it was required to carry freight and passengers going to or coming from that road at the same price it would receive if the passenger or freight were carried to or from the same point upon a through ticket or through bill of lading issued under any arrangement with the Denver & Rio Grande Company or any other competitor of the Denver & New Orleans Company for business. In short, the decree, as entered, establishes, in detail, rules and regulations for the working of the Atchison, Topeka & Santa Fe and Denver & New Orleans roads, in connection with each other as a connecting through line, and, in effect, requires the Atchison, Topeka & Santa Fe Company to place the Denver & New Orleans Company on an equal footing as to the interchange of business with the most favored of the competitors of that company, both as to prices and facilities, except in respect to the issue of through bills of lading, through checks for baggage, through tickets, and, perhaps, the compulsory interchange of cars.

From this decree both companies appealed,-the Atchison, Topeka & Santa Fe Company, because the bill was not dismissed; and the Denver & New Orleans Company because the decree did not fix the rates to be charged by the Atchison, Topeka & Santa Fe Company for freight and passengers transported by it in connection with the Denver & New Orleans, or make a specific division and apportionment of through rates between the two companies, and because it did not require the issue of through tickets and through bills of lading, and the through checking of baggage. The case has been presented by counsel in two aspects: (1) In view of the requirements of the constitution of Colorado alone; and (2) in view of the constitutional and common-law obligations of railroad companies in Colorado as common carriers.

''George R. Peck, H. C. Thatcher, Chas. E. Gast, Wm. M. Evarts, and J. H. McGowan'', for Atchison, T. & S. F. R. Co.

E. T. Wells, for Denver & N. O. R. Co.

WAITE, C. J.


text: Talk:Atchison Company v. Denver N O R Company


text:
Atchison Company v. Denver N O R Company/Opinion of the Court

We will first consider the requirements of the constitution; and here it may be premised that section 6 of article 15 imposes no greater obligations upon the company than the common law would have imposed without it. Every common carrier must carry for all to the extent of his capacity, without undue or unreasonable discrimination, either in charges or facilities. The constitution has taken from the legislature the power of abolishing this rule as applied to railroad companies. So in section 4 there is nothing specially important to the present inquiry except the last sentence: 'Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad.' Railroad companies are created to serve the public as carriers for hire, and their obligations to the public are such as the law attaches to that service. The only exclusively constitutional question in the case, is, therefore, whether the right of one railroad company to connect its road with that of another company, which has been made part of the fundamental law of the state, implies more than a mechanical union of the tracks of the roads so as to admit of the convenient passage of cars from one to the other. The claim on the part of the Denver & New Orleans Company is that the right to connect the roads includes the right of business intercourse between the two companies, such as is customary on roads forming a continuous line, and that if the companies fail or refuse to agree upon the terms of their intercourse a court of equity may, in the absence of statutory regulations, determine what the terms shall be. Such appears to have been the opinion of the circuit court, and accordingly in its decree a compulsory business connection was established between the two companies, and rules were laid down for the government of their conduct towards each other in this new relation. In other words, the court has made an arrangement for the business intercourse of these companies such as, in its opinion, they ought in law to have made for themselves.

There is here no question as to how or where the physical connection of the roads shall be made, for that has already been done at the place, and in the way, decided upon by the Denver & New Orleans Company for itself, and the Atchison, Topeka & Santa Fe Company does not ask to have it changed. The point in dispute upon this branch of the case, therefore, is whether, under the constitution of Colorado, the Denver & New Orleans Company has a constitutional right, which a court of chancery can enforce by a decree for specific performance, to form the same business connection, and make the same traffic arrangement, with the Atchison, Topeka & Santa Fe Company as that company grants to, or makes with, any competing company operating a connected road. The right secured by the constitution is that of a connection of one road with another, and the language used to describe the grant is strikingly like that of section 23 of the charter of the Baltimore & Ohio Railroad Company, given by Maryland on the twenty-eighth of February, 1827, (chapter 123, Md. Laws 1826,) which is in these words: 'That full right and privilege is hereby reserved to the citizens of this state, or any company hereafter to be incorporated under the authority of this state, to connect with the road hereby provided for, any other railroad leading from the main route, to any other part or parts of the state.' At the time this charter was granted the idea prevailed that a railroad could be used like a public highway by all who chose to put carriages thereon, subject only to the payment of tolls and to reasonable regulations as to the manner of doing business, (''Lake Sup. & M. R. R. Co. v. U.S. 93 U.S. 446;) but that the word 'connect' as here used, was not supposed to mean anything more than a mechanical union of the tracks is apparent from the fact that when afterwards, on the ninth of March, 1833, authority was given the owners of certain factories to connect roads from their factories with the Washington branch of the Baltimore & Ohio Company, and to erect depots at the junctions, it was in express terms made 'the duty of the company to take from and deliver at said depot any produce, merchandise, or manufactures, or other articles whatsoever, which they (the factory owners) may require to be transported on said road.' Md. Laws 1832, c.'' 175, § 16. The charter of the Baltimore & Ohio Company was one of the earliest ever granted in the United States, and while from the beginning it was common in most of the states to provide in some form by charters for a connection of one railroad with another, we have not had our attention called to a single case where, if more than a connection of tracks was required, the additional requirement was not distinctly stated and defined by the legislature.

Legislation regulating the duties of connected roads because of their connection is to be found in many of the states, and it began at a very early day in the history of railroad construction. As long ago as 1842 a general statute upon the subject was passed in Maine, (St. Me. 1842, c. 9;) and in 1854, (chapter 93,) a tribunal was established for determining upon the 'terms of connection' and 'the rates at which passengers and merchandise coming from the one shall be transported over the other,' in case the companies themselves failed to agree. Other states have made different provisions, and as railroads have increased in number, and their relations have become more and more complicated, statutory regulations have been more frequently adopted, and with greater particularity in matters of detail. Much litigation has grown out of controversies between connected roads as to their respective rights, but we have found no case in which, without legislative regulation, a simple connection of tracks has been held to establish any contract or business relation between the companies.

No provision is to be found in any of the constitutions of the several states, having special reference to the government of railroad corporations, before that of Illinois, which was ratified by a vote of the people on the second of July, 1870. Section 12 of article 11 of that constitution is as follows: 'Railways heretofore constructed, or that may hereafter be constructed, in this state, are hereby declared public highways, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law. And the general assembly shall, from time to time, pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different railroads of this state.'

During the same year an amendment to the constitution of Michigan was adopted in these words:

'Section 1. The legislature may from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on different railroads in this state, and shall prohibit running contracts between such railroad companies, whereby discrimination is made in favor of either of such companies as against other companies owning connecting or intersecting lines of railroad.'

The constitution of West Virginia, adopted in 1872, contained (section 9, art. 11) an exact copy of section 12, art. 11 of the constitution of Illinois, with an addition of these words: 'And providing for the correction of abuses, the prevention of unjust discriminations between through and local, or way freight, and passenger tariffs, and for the protection of the just rights of the public, and shall enforce such laws by adequate penalties.'

In 1873 a new constitution was adopted in the state of Pennsylvania. Sections 1 and 3 of article 17 are as follows:

'Section 1. All railroads and canals shall be public highways, and all railroads and canal companies shall be common carriers. Any association or corporation organized for the purpose shall have the right to construct and operate a railroad between any points within this state, and to connect at the state line with railroads of other states. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each the other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination.

'Sec. 3. All individuals, associations, and corporations shall have equal right to have persons and property transported over railroads and canals, and no undue or unreasonable discrimination shall be made in charges for, or in facilities for, transportation of freight or passengers within the state, or coming from or going to any other state. Persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to any more distant station, but excursion tickets may be issued at special rates.'

Since that time new constitutions have been adopted in Alabama, Arkansas, California, Colorado, Georgia, Louisiana, Missouri, Nebraska, and Texas. In Georgia (section 2, art. 4) authority was given the legislature to regulate fares and freights and to prevent unjust discriminations; and in Nebraska (section 4, art. 11) the provision in the constitution of Illinois was substantially followed; but in Alabama, (section 21, art. 13,) Arkansas, (section 1, art. 17,) California, (section 17, art. 12,) Louisiana, (article 243,) Missouri, (sections 12-14, art. 12,) and Texas, (section 1, art. 10,) the whole of section 1, art. 12 of that of Pennsylvania is included without any material change of phraseology. In Colorado, however, while all the rest of that section is adopted, these words are omitted: 'And shall receive and transport each other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination.' And so, while the first sentence of section 3, art. 12, is included, in language almost identical, the last sentence, which provides that passengers and property shall be delivered at all stations at charges not exceeding the charges to a more distant station, is left out, and the following inserted in its place: 'And no railroad company, nor any lessee, manager, or employe thereof, shall give any preference to individuals, associations, or corporations in furnishing cars or motive power.' Both these alterations are significant, and we cannot avoid the conclusion that their purpose was to leave the legislature free to act, in the regulation of the duties of connected roads, towards each other as the public good might require, for it is always to be borne in mind that while constitutional provisions of this character are intended as securities for the rights of the people, they may operate also as limitations on the powers of the legislature. To our minds it is clear that the constitutional right in Colorado to connect railroad with railroad does not of itself imply the right of connecting business with business. The railroad companies are not to be connected, but their roads. A connection of roads may make a connection in business convenient and desirable, but the one does not necessarily carry with it the other. The language of the constitution is that railroads may 'intersect, connect with, or cross' each other. This clearly applies to the road as a physical structure, not to the corporation or its business.

This brings us to the consideration of the second branch of the case, towit, the relative rights of the two companies at common law, and under the constitution, as owners of connected roads, it being conceded that there are no statutory regulations applicable to the subject. The constitution expressly provides (1) that all shall have equal rights in the transportation of persons and property; (2) that there shall not be any undue or unreasonable discrimination in charges or facilities; and (3) that preferences shall not be given in furnishing cars or motive power. It does not expressly provide (1) that the trains of one connected road shall stop for the exchange of business at the junction with the other; nor (2) that companies owning connected roads shall unite in forming a through line for continuous business, or haul each other's cars; nor (3) that local rates on a through line shall be the same to one connected road not in the line as the through rates are to another which is; nor (4) that if one company refuses to agree with another owning a connected road, to form a through line, or to do a connecting business, a court of chancery may order that such a business be done, and fix the terms. The question then is whether these rights, or any of them, are implied either at common law, or from the constitution. At common law, a carrier is not bound to carry except on his own line, and we think it quite clear that if he contracts to go beyond, he may, in the absence of statutory regulations to the contrary, determine for himself what agencies he will employ. His contract is equivalent to an extension of his line for the purposes of the contract, and if he holds himself out as a carrier beyond the line, so that he may be required to carry in that way for all alike, he may, nevertheless, confine himself in carrying to the particular route he chooses to use. He puts himself in no worse position, by extending his route with the help of others, than he would occupy if the means of transportation employed were all his own. He certainly may select his own agencies and his own associates for doing his own work.

The Atchison, Topeka & Santa Fe Company, as the lessee of the Pueblo & Arkansas Valley Railroad, has the statutory right to establish its own stations and to regulate the time and manner in which it will carry persons and property and the price to be paid therefor. As to all these matters, it is undoubtedly subject to the power of legislative regulation, but in the absence of regulation it owes only such duties to the public, or to individuals, associations, or corporations, as the common law, or some custom having the force of law, has established for the government of those in its condition. As has already been shown, the constitution of Colorado gave to every railroad company in the state the right to a mechanical union of its road with that of any other company in the state, but no more. The legislature has not seen fit to extend this right, as it undoubtedly may, and consequently the Denver & New Orleans Company comes to the Atchison, Topeka & Santa Fe Company just as any other customer does, and with no more rights. It has established its junction and provided itself with the means of transacting its business at that place, but as yet it has no legislative authority to compel the other company to adopt that station or to establish an agency to do business there. So far as statutory regulations are concerned, if it wishes to use the Atchison, Topeka & Santa Fe road for business, it must go to the place where that company takes on and lets off passengers or property for others. It has as a railroad company no statutory or constitutional privileges in this particular over other persons, associations, or corporations. It saw fit to establish its junction at a place away from the station which the Atchison, Topeka & Santa Fe Company had, in the exercise of its legal discretion, located for its own convenience and that of the public. It does not now ask to enter that station with its tracks or to interchange business at that place, but to compel the Atchison, Topeka & Santa Fe Company to stop at its station and transact a connecting business there. No statute requires that connected roads shall adopt joint stations, or that one railroad company shall stop at or make use of the station of another. Each company in the state has the legal right to locate its own stations, and, so far as statutory regulations are concerned, is not required to use any other.

A railroad company is prohibited, both by the common law and by the constitution of Colorado, from discriminating unreasonably in favor of or against another company seeking to do business on its road; but that does not necessarily imply that it must stop at the junction of one and interchange business there, because it has established joint depot accommodations and provided facilities for doing a connecting business with another company at another place. A station may be established for the special accommodation of a particular customer, but we have never heard it claimed that every other customer could, by a suit in equity, in the absence of a statutory or contract right, compel the company to establish a like station for his special accommodation at some other place. Such matters are, and always have been, proper subjects for legislative consideration, unless prevented by some charter contract; but, as a general rule, remedies for injustice of that kind can only be obtained from the legislature. A court of chancery is not, any more than is a court of law, clothed with legislative power. It may enforce, in its own appropriate way, the specific performance of an existing legal obligation arising out of contract, law, or usuage, but it cannot create the obligation.

In the present case the Atchison, Topeka & Santa Fe and the Denver & Rio Grande companies formed their business connection and established their junction or joint station long before the Denver & New Orleans road was built. The Denver & New Orleans Company saw fit to make its junction with the Atchison, Topeka & Santa Fe Company at a different place. Under these circumstances, to hold that, if the Atchison, Topeka & Santa Fe continued to stop at its old station, after the Denver & New Orleans was built, a refusal to stop at the junction of the Denver & New Orleans was an unreasonable discrimination as to facilities in favor of the Denver & Rio Grande Company, and against the Denver & New Orleans, would be, in effect, to declare that every railroad company which forces a connection of its road with that of another company has a right, under the constitution or at the common law, to require the company with which it connects to do a connecting business at the junction, if it does a similar business with any other company under any other circumstances. Such, we think, is not the law. It may be made so by the legislative department of the government, but it does not follow, as a necessary consequence, from the constitutional right of a mechanical union of tracks, or the constitutional prohibition against undue or unreasonable discrimination in facilities.

This necessarily disposes of the question of a continuous business, or a through line for passengers or freight, including through tickets, through bills of lading, through checking of baggage, and the like. Such a business does not necessarily follow from a connection of tracks. The connection may enable the companies to do such a business conveniently when it is established, but it does not of itself establish the business. The legislature cannot take away the right to a physical union of two roads; but whether a connecting business shall be done over them after the union is made depends on legislative regulations, or contract obligation. An interchange of cars, or the hauling by one company of the cars of the other, implies a stop at the junction to make the exchange or to take the cars. If there need be no stop, there need be no exchange or taking on of cars.

The only remaining questions are as to the obligation of the Atchison, Topeka & Santa Fe Company to carry for the Denver & New Orleans when passengers go to, or freight is delivered at, the regular stations, and the prices to be charged. As to the obligation to carrv, there is no dispute, and we do not understand it to be claimed that carriage has ever been refused when applied for at the proper place. The controversy, and the only controversy, is about the place and the price. That the price must be reasonable is conceded, and it is no doubt true that in determining what is reasonable the prices charged for business coming from or going to other roads connecting at Pueblo, may be taken into consideration. But the relation of the Denver & New Orleans Company to the Atchison, Topeka & Santa Fe is that of a Pueblo customer, and it does not necessarily follow that the price which the Atchison, Topeka & Santa Fe gets for transportation to and from Pueblo, on a division of through rates among the component companies of a through line to Denver, must settle the Pueblo local rates. It may be that the local rates to and from Pueblo are too high, and that they ought to be reduced, but that is an entirely different question from a division of through rates. There is no complaint of a discrimination against the Denver & New Orleans Company in respect to the regular Pueblo rates; neither is there anything except the through rates to show that the local rates are too high. The bill does not seek to reduce the local rates, but only to get this company put into the same position as the Denver & Rio Grande on a division of through rates. This cannot be done until it is shown that the relative situations of the two companies with the Atchison, Topeka & Santa Fe, both as to the kind of service and as to the conditions under which it is to be performed, are substantially the same, so that what is reasonable for one must necessarily be reasonable for the other. When a business connection shall be established between the Denver & New Orleans Company and the Atchison, Topeka & Santa Fe at their junction, and a continuous line formed, different questions may arise; but so long as the situation of the parties continues as it is now, we cannot say that, as a matter of law, the prices charged by the Atchison, Topeka & Santa Fe, for the transportation of persons and property coming from or going to the Denver & New Orleans, must necessarily be the same as are fixed for the continuous line over the Denver & Rio Grande.

Our attention has been called to several cases in the English courts where the question of reasonable or unreasonable preference by rail way companies has been considered, but they all arose under the 'railway and canal traffic act, 1854,' (17 & 18 Vict. c. 31,) and furnish but little aid in the determination of the present case. They are instructive and of high authority as to what would be undue or unreasonable preferences among competing customers, but none of them relate to the rights of connected railroads where there is no provision in law for their operation as continuous lines for business. And here it is proper to remark that in the very act under which these cases arose it is provided that 'every railway company * *  * working railways *  *  * which form part of a continuous line of railway *  *  * communication *  *  * shall afford all due and reasonable facilities for receiving and forwarding by one of such rail ways *  *  * all the traffic arriving by the other, without any unreasonable delay, and without any *  *  * preference or advantage, or prejudice or disadvantage, *  *  * and so that no obstruction may be offered to the public desirous of using such railways *  *  * as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways *  *  * of the several companies, be at all times afforded to the public in that behalf.' If complaint was made of a violation of this provision, application could be made to the courts for relief. Were there such a statute in Colorado, this case would come before us in a different aspect. As it is, we know of no power in the judiciary to do what the parliament of Great Britain has done, and what the proper legislative authority ought perhaps to do, for the relief of the parties to this controversy.

All the American cases to which our attention has been called by counsel relate either to what amounts to undue discrimination between the customers of a railroad company, or to the power of a court of chancery to interfere, if there is such a discrimination. None of them hold that, in the absence of statutory direction, or a specific contract, a company having the power to locate its own stopping places can be required by a court of equity to stop at another railroad junction and interchange business, or that it must under all circumstances give one connecting road the same facilities and the same rates that it does to another with which it has entered into special contract relations for a continuous through line and arranged facilities accordingly. The cases are all instructive in their analogies, but their facts are different from those we have now to consider.

We have not referred specially to the tripartite agreement or its provisions, because, in our opinion, it has nothing to do with this case as it is now presented. The question here is whether the Denver & New Orleans Company would have the right to the relief it asks if there were no such contract, not whether the contract, if it exists, will be a bar to such a right. The real question in the case, as it now comes before us, is whether the relief required is legislative in its character or judicial. We think it is legislative, and that upon the existing facts a court of chancery can afford no remedy.

The decree of the circuit court is reversed, and the cause remanded, with direction to dismiss the bill without prejudice.


text: Talk:Atchison Company v. Denver N O R Company/Opinion of the Court


text:
Dallas Company v. McKenzie

John P. Ellis, for plaintiff in error.

''Thos. C. Fletcher, Geo. D. Reynolds, and J. B. Henderson'', for defendant in error.

WAITE, C. J.

title: Dallas Company v. McKenzie


text: Talk:Dallas Company v. McKenzie

title: Talk:Dallas Company v. McKenzie


text:
Dallas Company v. McKenzie/Opinion of the Court

It is no longer an open question in this court that bonds issued by counties in Missouri during the years 1870 and 1871, in payment of subscriptions to the stock of railroad companies, without a vote of the people, are valid, if the subscription was made under authority granted before the adoption of the constitution of 1865, which did not require such a vote to be taken. In Co. of Ralls v. Douglass, 105 U.S. 728, the cases in the supreme court of the state and in this court bearing on that question are referred to, and our conclusion distinctly stated. We there declined to follow the case of State v. Dalls Co. Ct. 72 Mo. 329, decided in 1878, which substantially overruled a long line of cases in the supreme court of the state on which our earlier decisions were predicated. In Marcy v. ''Tp. of Oswego, 92 U.S. 637, and Humboldt Tp. v. Long, Id. 642, followed in Wilson v. Salamanca, 99 U.S. 504, it was expressly decided that municipal bonds were not invalid in the hands of a bona fide'' holder by reason of their having been voted and issued in excess of the statutory limit, if the recitals imported a valid issue. It is an admitted fact in this case that McKenzie, the defendant in error, is a bona fide holder for value of the coupons sued on, and the recitals, which are almost in the exact language of those in Wilson v. Salamanca, supra, imply authority for the issue of the bonds from which they were cut. Consequently, in this case, the excessive issue is no defense.

The records of the county court, which were put in evidence, show affirmatively that all the justices were present and acting at the adjourned and special terms, when the orders were made directing the subscription to the stock, and providing as to the terms of the contract. The last order was made at a regular term. Under these circumstances, it is certainly to be presumed, in the absence of anything to the contrary, that the terms were regularly called and held. It was therefore not error to admit the records in evidence without proof of the order for the adjourned term, or to call for the special term. The fact that the order of the seventh of August, 1871, is referred to in the recitals of the bond as having been made on the 12th, is unimportant. Smith v. Co. of Clark, 54 Mo. 58.

The judgment is affirmed.


text: Talk:Dallas Company v. McKenzie/Opinion of the Court


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United States v. Brindle

Asst. Atty. Gen. Maury, for plaintiff in error.

John H. Sloan and M. F. Morris, for defendant in error.

WAITE, C. J.

title: United States v. Brindle


text: Talk:United States v. Brindle

title: Talk:United States v. Brindle


text:
United States v. Brindle/Opinion of the Court

Two general questions are presented by the special verdict in this case: (1) Whether Brindle, the defendant in error, as receiver of public moneys for the district of lands subject to sale at Lecompton, kansas, is entitled to the military bounty-land fees received by him during his term of office, over and above the amount required, with his commissions on cash sales of public lands, to make up his annual salary of $2,500 per year; and (2) whether he is entitled to commissions on sales of Indian trust lands in addition to his compensation as such receiver of public moneys. The first of these questions is answered in the negative, on the authority of U.S. v. Babbit, 1 Black, 55, decided in 1861, and reaffirmed in 1877. 95 U.S. 335. The rule settled in that case ought not to be disturbed at this late day.

The facts on which the claim for commissions on sales of Indian trust lands depend are these: On the seventeenth of July, 1854, a treaty was concluded with the Delaware tribe of Indians, (10 St. 1048,) the material parts of which are as follows:

'Article 1. The Delaware tribe of Indians hereby cede, relinquish, and quitclaim to the United States all their right, title, and interest in and to their country,' describing it, and also their right, title, and interest in what was then known as 'the outlet.'

'Art. 2. The United States hereby agree to have the ceded country (excepting the said 'outlet') surveyed, as soon as it can be conveniently done, in the same manner that the public lands are surveyed; such survey to be commenced and prosecuted as the president of the United States may deem best. And the said president will, as soon as the whole or any portion of said lands are surveyed, proceed to offer such surveyed lands for sale at public auction, in such quantities as he may deem proper, being governed in all respects, in conducting such sales, by the laws of the United States respecting the sales of public lands; and such of the lands as may not be sold at the public sales shall thereafter be subject to private entry, in the same manner that private entries are made of United States lands; and any or all of such lands as remain unsold after being three years subject to private entry at the minimum government price, may, by act of congress, be graduated and reduced in price until all said lands are sold; regard being had in such graduation and reduction to the interests of the Delawares, and also to the speedy settlement of the country.

'Art. 3. The United States agree to pay to the Delaware tribe of Indians the sum of ten thousand dollars; and, in consideration thereof, the Delaware tribe of Indians hereby cede, release, and quitclaim to the United States the said tract of country hereinbefore described as the 'outlet.' And as a further and full compensation for the cession made by the first article, the United States agree to pay to said tribe all the moneys received from the sale of the lands provided to be surveyed in the preceding article, after deducting therefrom the cost of surveying, managing, and selling the same.

Another article provided for the permanent investment of such of the proceeds as was not required for the present wants of the Indians, and for the disposition of the interest on the investments.

On the tenth of August, in the same year, the Kaskaskias and Peorias, and certain tribes of the Piankeshaw and Wea Indians, ceded certain of their lands to the United States by a treaty the same in its general provisions as that of the Delawares. 10 St. 1082.

Section 5 of the act of March 3, 1855, c. 204, (10 St. 700,) passed after these treaties were concluded, is as follows: 'That no enable the president of the United States to carry out, in good faith, the recent treaties with the * *  * Delawares *  *  * and the United tribes of Kaskaskias and Peorias, Piankeshaws and Weas, *  *  * there shall be and hereby is appropriated the sum of twenty thousand dollars, in addition to the appropriations heretofore made, for the execution of the surveys required by said treaties; and where the net proceeds of the lands ceded by either of said treaties are required to be paid over to the Indians, the president shall cause said lands, or such parts thereof as he may deem proper, to be clasified and valued, and when such classification and valuation have been made to his satisfaction, he shall cause said lands to be offered at public sale, by legal subdivisions or town lots, at such times and places, and in such manner and quantity, as to him shall appear proper and necessary to carry out faithfully the stipulations in said treaties and said lands shall not be sold at private classified and valued, and when such by the valuation aforesaid, nor shall any land be sold at a less price than one dollar and twenty-five cents per acre, for three years, and thereafter as may be directed by law pursuant to the treaty.'

By an act of July 9, 1832, c. 174, (4 St. 564,) as afterwards amended and now section 463 of the Revised Statutes, the commissioner of Indian affairs, under the direction of the secretary of the interior, and agreeably to such regulations as the president may prescribe, has the management of Indian affairs, and of all matters arising out of Indian relations. The same act (now section 462, Rev. St.) also provides that all accounts and vouchers for claims and disbursements connected with Indian affairs shall be transmitted to the commissioner for administrative examination, and by him passed to the proper accounting officer of the treasury department for settlement. The second auditor of the treasury is charged by law with the duty of receiving and examining all accounts relating to Indian affairs, and transmitting them to the second comptroller for his decision thereon. Rev. St. § 277, subd. 2. There must be appointed a register of the land-office and a receiver of public moneys for each land-district established by law, to reside at the place where the land-office to which he is appointed is kept. Id. §§ 2234, 2235, re-enacting other statutes to the same effect.

The commissioner of the general land-office has power to audit and settle all public accounts relating to the public lands, and to transmit the accounts and vouchers to the first comptroller of the treasury for his examination and decision thereon. Id. § 456.

Section 18 of the act of August 31, 1852, 'making appropriations for the civil and diplomatic expenses of the government,' c. 108, (10 St. 100,) is as follows: 'No person hereafter who holds or shall hold any office under the government of the United States, whose salary or annual compensation shall amount to the sum of two thousand five hundred dollars, shall receive compensation for discharging the duties of any other office.'

On the twenty-fourth of October, 1856, Brindle, the defendant in error, 'was duly appointed special receiver and superintendent to assist the special commissioner to dispose of the Delaware Indian trust lands at Fort Leaven-worth, in the territory of Kansas, under the treaty with the Delaware tribe of Indians.' On the eighteenth of February, 1857, he was appointed and commissioned for four years as receiver of public moneys for the district of lands subject to sale at Lecompton, Kansas, and on the fifteenth of May, 1857, he was duly appointed as special receiver and superintendent to assist the special commissioner to dispose of the trust lands of the Kaskaskia and Peoria, Piankeshaw and Wea Indian confederated tribes of Indians at Paoli, Kansas territory. These Indian trust lands were never public lands of the United States, and were never subject to sale at the Lecompton land-office. The cessions to the United States were in trust, to survey, manage, and sell the lands and pay the net proceeds to or invest them for the Indians. There was never a time that the United States occupied any other position under the cessions than that of trustees, with power to sell for the benefit of the Indians. In equity, under the operation of the treaties, the Indians continued, until sales were made, the beneficial owners of all their country ceded in trust. Of this we have no doubt. The treaties are full of evidence to that effect. It is unnecessary to state it in detail. It follows that it was never any part of the official duty of Brindle, as receiver of public moneys at the Lecompton land-office, to sell the trust lands or receive the payments therefor. His duties in connection with that office were to receive and account for moneys paid for public lands; that is to say, the public moneys of the United States derived from the sales of public lands. The moneys paid for the Indian lands were trust moneys, not public moneys. They were at all times in equity the moneys of the Indians, subject only to the expenses incurred by the United States for surveying, managing, and selling the lands. When, therefore, Brindle was appointed special receiver and superintendent to assist the special commissioner in disposing of the trust lands, he was employed to render a service in no way connected with the office he held. He was not appointed to any office known to the law. No new duty was imposed on him as receiver of the land-office. The president was, both by the treaties and the act of 1855, charged with the duty of selling the lands, and under his instructions Brindle was employed to assist in that work. By express provisions in the treaties the expenses incurred by the United States in making the sales were to be paid from the proceeds. This clearly implied the payment of a reasonable compensation for the services of those employed to carry the trust into effect.

In Converse v. U.S. 21 How. 463, it was decided that provisions in appropriation acts, like section 18 of the act of August 31, 1852, prohibiting an officer from receiving more than one salary, could not by 'fair interpretation be held to embrace an employment which has no affinity or connection, either in its character or by law or usage, with the line of his official duty, and where the service to be performed is of a different character and for a different place, and the amount of compensation regulated by law.' Page 471. In the present case the employment was for a special service in connection with a special trust assumed by the United States for the benefit of certain Indian tribes, in which express provisions were made for the payment of expenses. In legal effect, the appointment was to an agency for the sale of lands for the Indians, with an implied understanding that a reasonable compensation would be paid for the services rendered. So far as anything appears in the record, the appointment was not made because Brindle was receiver of the land-office. The duties to be performed were of a different character and at a different place from those of the land-office, and while the exact amount of compensation for this service was not fixed, it was clearly to be inferred that such compensation as the law implies where labor is performed by one at the request of another, that is to say,-a reasonable compensation,-would be paid. This case comes, therefore, within the rule in Converse v. U.S., and Brindle is not excluded by the act of 1852 from demanding compensation for this service by reason of his being receiver of the land-office.

What we have already said disposes of one of the incidental questions presented by the verdict, to wit, whether the first or second comptroller of the treasury was the proper officer under the law to state the accounts of Brindle as special receiver, etc. As the lands were Indian lands, and the accounts related to and were connected with Indian affairs, the law required them to be transmitted to the commissioner of Indian affairs, to be passed by him to the second auditor, and by him to the second comptroller for examination and certificate of the balances arising thereon. This disposes of all the questions presented in the argument.

It follows that the judgment in favor of Brindle for $50,979.19 was erroneous, and that it should have been for $14,541.78, according to the alternative finding marked G in the special verdict. The judgment is therefore reversed, and the caused remanded with instructions to enter another judgment in favor of the defendant in error in accordance with the finding G; that is to say, for $14,541.78, as of June 13, 1879, the date of the verdict,-the judgment to draw interest from that date.


text: Talk:United States v. Brindle/Opinion of the Court


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Rice v. Sioux City

John B. Sanborn, for appellant.

E. C. Palmer, for appellee.

WAITE, C. J.

title: Rice v. Sioux City


text: Talk:Rice v. Sioux City

title: Talk:Rice v. Sioux City


text:
Rice v. Sioux City/Opinion of the Court

This case briefly stated is as follows: On the twenty-eighth of September, 1850, what is now known as the swamp-land act, c. 8, (9 St. 519,) was passed by congress. By sections 1, 2, and 3 swamp lands were defined, and a special grant made to the state of Arkansas. Section 4 is in these words: 'That the provisions of this act be extended to, and their benefits conferred upon, each of the other states of the Union, in which such swamp and overflowed lands, known or designated as aforesaid, may be situated.' Minnesota was then a territory, and on the third of March, 1857, an act of congress (chapter 99, 11 St. 195) was passed, granting to that territory, for the purpose of aiding in the construction of certain railroads, 'every alternate section of land, designated by odd numbers, for six sections in width an each side of each of said roads.' If when the lines of a road were definitely fixed it should appear that any of the sections included in the terms of the grant had been sold or otherwise appropriated by the United States, authority was given for the selection of others in lieu within 15 miles of the line. All lands before reserved to the United States for the purpose of aiding in any object of internal improvement or for any other purpose whatever were excluded from the operation of the act, except for the right of way. On the eleventh of May, 1858, Minnesota was admitted into the Union as a state. 11 St. p. 285, c. 31. By the act of admission, (section 3,) 'all the laws of the United States,' 'not locally inapplicable,' were 'to have the same force and effect within that state as in other states of the Union.' The line of what is now the Sioux City & St. Paul Railroad, built by a company entitled to the privileges of the act of March 3, 1857, c. 99, was located in April 1859, and the lands involved in this suit are odd-numbered sections within the sixmile limits according to that line. On the twelfth of March, 1860, congress passed an act (chapter 5, 12 St. p. 3) extending the provisions of the act of September 28, 1850, c. 84, to the states of Minnesota and Oregon, subject to a proviso, as follows: 'That the grant hereby made shall not include any lands which the government of the United States may have reserved, sold, or disposed of (in pursuance of any law heretofore enacted) prior to the confirmation of title to be made under the authority of the said act.' The lands now in dispute were certified to the state under this act, and conveyed by the governor to Rice, the appellant. This suit was brought by the railroad company to establish its title under the railroad grant by the act of March 3, 1857, c. 99, as against the swamp-land certificate. The circuit court sustained the claim of the railroad company, and decreed accordingly. To reverse that decree Rice took this appeal.

The single question presented is whether the lands passed under the railroad or the swamp-land grant. That the swamp-land act of 1850 operated as a grant in proesenti to the states then in existence of all the swamp lands in their respective jurisdictions is well settled. Railroad Co. v. Smith, 9 Wall. 95; French v. Fyan, 93 U.S. 171; Martin v. Marks, 97 U.S. 345. As Minnesota was a territory in 1850, it is conceded that the title to the swamp lands within its territorial limits did not pass out of the United States at that time, because there was then no grantee in existence. It is contended, however, that on the admission of the state into the Union in 1858, the grant, which had before rested in compact only, became absolute, and carried the title to the state, as against the United States and subsequent grantees, from the date of the original act, September 28, 1850, or at least from the date of the admission of the state.

In French v. Fyan, supra, it was said in the opinion, at one place, 'that this court has decided more than once that the swamp-land act was a grant in proesenti, by which the title to those lands passed at once to the state in which they lay, except to states admitted to the Union after its passage;' and at another, 'for while the title under the swamp-land act, being a present grant, takes effect as of the date of that act, or of the admission of the state into the Union, when this occurred afterwards.' From these expressions it is argued that the question of the right of new states to claim the benefits conferred by the provisions of the act has been settled. The case which was then before the court related only to the operation of the act in a state which was in existence at the time of its passage, and called for no consideration of its effect on new states. All that was said as to new states was merely incidental to the main question, and by no means intended as an authoritative declaration of the law applicable to that class of cases. We feel quite at liberty, therefore, to consider that question an open one, and to treat it accordingly.

Donations of the public domain for any purpose are never to be presumed. Those who claim against the government under legislative grants must show a clear title. The grant under the act of 1850 was to Arkansas and 'the other states of the Union.' Arkansas was an existing state, and the grant was to all the states in prasenti. It was to operate upon existing things, and with reference to an existing state of facts. It granted 'the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act.' The secretary of the interior was required to make out, 'as soon as practicable,' lists and plats of lands, the greater part of which were 'wet and unfit for cultivation,' and to transmit the lists, etc., to the governor of the proper state. There is not a word in the act to show that the grant was to be a continuing one. It was to take effect at once, between an existing grantor and several separate existing grantees. There were, undoubtedly, at that time lands 'wet and unfit for cultivation' in the territories as well as in the states. Confessedly, no grant was made to the territories or any of them. This shows clearly the intention of congress not to dispose of any more swamp lands at that time and in that way, than those in the states. It was clearly within the power of congress to make the same grants to territeries if it had been considered desirable. Cases are numerous in which grants were made to territories to aid in building railroads. The act of March 3, 1857, making the grant to the territory of Minnesota, is one instance of that Kind. The swamp-land grants were made to enable the states to construct the necessary levees and drains for the reclamation of the lands. They were, therefore, in aid of public improvements, and could as well be made to the territories as to the states.

At the time of the original grant it was not known when another state would be admitted into the Union, nor what would then be the wants of the United States or the condition of the swamp lands. Events might happen that would render such a grant at that time entirely inappropriate. Seven states have been admitted since,-three before the late civil war began, and four afterwards, and in six of them there must have been public lands which were in part was and unfit for cultivation. Minnesota was the first and Oregon the second state admitted. None were admitted until nearly eight years after the act was passed, and the last did not come in until nearly 25 years had elapsed. If the interpretation which has been put on the act by the appellant is the true one, every parcel of public land in the territories, as subdivided under the law for sale, the greater part of which was 'wet and unfit for cultivation' on the twenty-eighth of September, 1850, was from that date reserved to and set apart by the United States for donation to any new state that might thereafter be admitted to the Union, within whose boundaries it should fall. Nothing was reserved from the railroad grant to the territory of Minnesota on the third of March, 1857, except lands theretofore reserved by the United States for some purpose; and if these lands were reserved at all, they were for the purposes of this donation. If reserved, they could neither be sold to purchasers nor settled upon for pre-emption, for the reservation is of lands unsold at the date of the passage of the act.

Such a reservation was clearly not in the mind of congress, and the subsequent legislation as well as the language of the act shows it. Of the language of the act enough has already been said. We therefore turn to the subsequent legislation. As has been seen, Minnesota was admitted into the Union as a state on the eleventh of May, 1858. Oregon was admitted on the fourteenth of February, 1859. 11 St. p. 383, c. 33. In the acts of admission there were specific grants of land to each state for certain purpose, but no reference was made directly or indirectly to the swamp lands. All the grants made were in consideration, among other things, of an undertaking on the part of the state, irrevocable without the consent of the United States, that the state should never interfere with the primary disposal of the soil within the same by the United States, or with any regulations congress might find necessary for securing the title in the soil to bona fide purchasers. It is of some significance also that the act of congress authorizing the people of the territory of Minnesota to form a state government preparatory to their admission into the Union, (chapter 6, 11 St. p. 166,) in which the propositions for grants of lands were contained, was passed on the same day with the act making the railroad grant under which the appellee now claims. Following this on the twelfth of March, 1860, nearly two years after Minnesota was admitted, and one year after the admission of Oregon, the act extending in express terms the provisions of the swamp-land act to these states was passed. In this way, as we think, for the first time the swamp lands falling within the description of the act of 1850, and then unsold or otherwise disposed of, were granted. No similar laws have been passed in favor of states which have since been admitted into the Union. In 1873, when the statutes of the United States were revised, the swamp-land acts were re-enacted in sections 2479 and some others which followed. Section 2479 is as follows: 'To enable the several stats (but not including the states of Kansas, Nebraska, and Nevada) to construct the necessary levees and drains to redeem the swamp and overflowed lands therein, the whole of the swamp and overflowed lands made unfit thereby for cultivation, and remaining unsold on or after the twenty-eighth day of September, A. D. 1850, are granted and belong to the several states respectively in which such lands are situated: provided, however, that said grant of swamp and overflowed lands, as to the states of California, Minnesota, and Oregon, is subject to the limitations, restrictions, and conditions hereinafter named and specified as applicable to said three last states respectively.' Then follows section 2490, continuing in force the specific provisions in the act of March 12, 1860, extending the benefits of the act to Minnesota and Oregon.

Much stress was laid in the argument on the provision in the act admitting Minnesota into the Union, to the effect that 'all the laws of the United States which are not locally inapplicable shall have the same force and effect within that state as in the other states of the Union.' This is disposed of by what has already been said. As the act of 1850 related only to states in existence when it was passed, it was locally inapplicable to Minnesota until its provisions were actually extended to that state by the act of March 12, 1860. It follows that the title of the railroad company under the act of 1857 is superior to that of the appellant. The lands were not at the time of the passage of that act reserved to the United States for any purpose, and they were not, therefore, excepted from its operation.

The decree of the circuit court is affirmed.

title: Rice v. Sioux City/Opinion of the Court