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Gilman v. City of Sheboygan/Opinion of the Court

This is a suit in equity brought here by appeal from the District Court of the United States for the District of Wisconsin. The bill states as follows:

The complainant is the owner of a large amount of real estate in the City of Sheboygan, which is described in the bill.

On the 17th of January, 1854, the Legislature passed an act entitled 'an Act to authorize the City of Sheboygan to aid in the construction of a railroad.' This Act authorized the Commissioners named in it to borrow $100,000 upon the credit of the City to be invested in the capital stock of a Railroad Company, authorized to construct a railroad from the City of Sheboygan westwardly by way of Fon-du-lac to the Mississippi River, and to issue therefor the bonds of the City according to the provisions of the act.

The act further provided that the City should annually levy a tax upon all the taxable property of the City sufficient, in addition to the dividends upon the shares of its stock in the Company, to pay the interest upon the bonds.

The act also authorized the City Council to submit to the qualified voters of the City the question whether the further sum of $100,000 should be raised and invested in the same manner as the first $100,000.

By an act of the Legislature of the 28th of March, 1856, entitled, 'An Act to authorize the City of Sheboygan to aid in the construction of the Sheboygan and Mississippi Railroad,' the City Council was authorized to subscribe $50,000 to the capital stock of the Company, and to increase the amount of subscription from time to time until the aggregate should reach the sum of $100,000. The instalments upon the stock subscribed were to be paid by the levy of an annual tax upon all the real estate in the City-not exceeding $25,000 in any one year-until the whole amount of the subscriptions should be paid.

Under these Acts the City has made loans and issued its bonds therefor to the amount of $200,000.

The Legislature passed a subsequent Act, which is as follows:

'Section 1. All taxes hereafter levied by the Common Council of the City of Sheboygan for the (payment) of principal or interest of any bonds issued or to to issued by said City to aid in the construction of any railroad, plank road, or for any improvement of the harbor at the mouth of the Sheboygan River, shall be levied by said Council on the real estate of said City exclusively.

'Sec. 2. All acts or parts of acts that conflict with the provisions of this act are hereby repealed.

'Sec. 3. This act shall take effect and be in force from and after its passage.

'Approved March 7, 1857.'

In the year 1857, the City Council under the last named act, levied a tax upon all the real estate within the limits of the City of six cents upon each dollar of the valuation thereof 'for its harbor loans, railroad and plank road bonds,' 'and did not levy said sum or any part thereof upon any other kind of property within said City of Sheboygan for the said harbor loans, railroad and plank road bonds, but levied the tax for the payment of the interest upon those specific objects entirely and solely out of the real estate within said City limits; and that the real estate above stated and set forth in this complaint was included in and was taxed at the rate aforesaid, and for the purpose aforesaid.'

At the time this tax was levied, there was personal property in the city of Sheboygan to the amount of three or four hundred thousand dollars, liable to taxation, and upon which no tax was levied for either of said purposes for the year 1857. The Act of March 7th, 1857, and the tax levied under it, are alleged to be void. Defendant, Geele, is the Treasurer of said City, and as such authorized to execute deeds for land sold for taxes when the time for redemption expires. The defendants' property in the City has been sold for said tax and bought in by the City. Geele threatens to execute deeds to the City for the same. The time for redemption is about to expire.

The deeds, it is alleged, will cast a cloud upon complainant's title, embarrass him in disposing of the property, and render it less valuable to him. The prayer of the bill is, that the Treasurer be perpetually enjoined from executing, and the City from receiving, such deeds, and for general relief. The complainant subsequently filed an amended bill, in which it was claimed that the Act of 1857, and the tax levied under it, were void, because the Act of 1854 provided that a tax should be levied upon all the taxable property of the City for the payment of said bonds, that the bonds were issued and taken upon the faith of that act, and that its provisions constitute a contract with the bond holders, which the Act of 1857 seeks to violate.

The defendants demurred, and the Court sustained the demurrer.

Was there such a contract as is averred in the amended bill?

The Act of 1854 authorized the borrowing of money, the issuing of bonds, and the levying of a tax upon all the property in the City, for the purposes specified. The imposition, modification, and removal of taxes, and the exemption of property from such burdens, is an ordinary exercise of the power of State sovereignty. There is no pledge, express or implied, that this power should not thereafter be exercised.

Admitting that the State could enter into such an engagement, there is no evidence that it did. This fact should never be assumed unless the language used be too clear to admit of doubt. If the agreement existed, the complainant is not in a position to make the question. There is no allegation that the tax levied is insufficient. We hear of no complaint from the bondholders. They are not before us. It does not belong to the complainant, vicariously, to enforce their contract and protect their rights.

The objection, that these acts take private property for public purposes without compensation, and hence are within the prohibition of the State constitution upon that subject, is also without foundation. That clause of the Constitution refers solely to the exercise, by the State, of the right of eminent domain. The People vs. The Mayor of Brooklyn, (4 Coms., 419).

Is the Act of 1857 invalid, because it requires the tax in question to be levied exclusively upon the real estate of the city?

The provisions of the State Constitution, to which our attention has been called, as bearing upon the subject, are the following: Art. VIII. 'Sec. 1.-The rule of taxation shall be uniform, and taxes shall be levied upon such property as the Legislature shall prescribe.'

Art. XI. 'Sec. 3.-It shall be the duty of the Legislature, and they are hereby required, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts, by such municipal corporations.'

The Revised Statutes of Wisconsin, title 5, chap. 18, page 200, provide as follows:

'Sec. 1. All property, real and personal, within this State, not expressly exempted therefrom, shall be subject to taxation in the manner provided by law.'

'Sec. 4. The following property shall be exempt from taxation:

'All property, real and personal, of the United States and of this State. All public or corporate property of the several counties, cities, villages, towns and school districts in this State.' * *  *

'All property exempt by law from execution, not exceeding in value $200.

'The personal property of all literary, benevolent, charitable and scientific institutions within this State, and such real estate as shall be actually occupied by them for the purposes for which they have been or shall be organized.'

'All houses of public worship, and the lots on which they are situate,' &c.

'All public libraries, and the real and personal property belonging to or connected with the same.

'The property of all Indians, who are not citizens, except the lands held by them by purchase.

'The personal property of persons, who, by reason of infirmity, age and poverty, may, in the opinion of the assessors, be unable to contribute towards the public charges.

'All property, real and personal, belonging to any agricultural society in this State.' * *  *

No other property is exempted.

In Weeks vs. The City of Milwaukie, et al., (10 Wis. Rep., 242, Mr. Justice Payne, referring to 'the provision of Article II., Sec. 3, requiring the Legislature, in establishing municipal corporations, 'to restrict their powers of taxation so as to prevent abuses, &c.,' says, 'Restrictions may be and undoubtedly are necessary to prevent abuses which may not amount to a violation of the rule of uniformity. There may be uniform abuse of the taxing power by reckless and improvident management on the part of these local authorities, and I think the provision last mentioned was designed to give further protection-in addition to that furnished by the rule of uniformity.'

Such was the unanimous judgment of the Court. Concurring in that opinion, we lay this section of the Constitution out of view.

In Knowlton vs. The Supervisors of Rock County, (9 Wis. Rep., 410,) the section requiring uniformity of taxation underwent an able and exhaustive examination. The Court affirmed the following propositions:

'The levying of taxes by the authorities of a county, city, or town, for their support is as much an exercise of the taxing power as when levied directly by the State for its support. The State acts by the municipal governments, and their acts in levying taxes are as much the act of the State as if the State acted by its own officers.

'The Constitution of the State requires, as a rule in levying taxes, that the valuation must be uniform and in all cases alike or equal, operating alike upon all the taxable property throughout the territorial limits of the State or municipality within which the tax is to be raised. And where the Legislature preseribed a different rule, the act is a departure from the constitution and therefore void.

'The Constitution has fixed one unbending uniform rule of taxation for the State, and property cannot be classified and taxed as classed by different rules.

'The provision of the Constitution, that taxes shall be levied upon such property as the Legislature shall prescribe, does not sanction 'a discrimination which provides for taxing a particular kind of property for the support of Government by a different rule from that by which other property is taxed; for when the kind of property is prescribed the rule of taxation must be uniform. All kinds of property must be taxed uniformly, or be absolutely exempt.'

In this case, under the provisions of the charter of the City of Janesville, land within the City limits laid out into City lots, and other lands not so laid out, had been taxed at different rates, and the property of the plaintiff had been sold for the nonpayment of the taxes. The Court held the tax void, and enjoined the treasurer from executing deeds to the tax purchasers.

In the case of Weeks vs. The City of Milwaukie et al., (10 Wis. Rep., 242,) the preceding case was considered and approved by the Court. The proposition that the constitutional provision requiring the 'rule of taxation to be uniform' extends to municipal corporations, and that the constitutional provision requiring the Legislature to restrict their powers of taxation was only intended to furnish a further protection, were expressly and unanimously re-affirmed. They held further, that where the assessors of the City of Milwaukie, in obedience to an ordinance of that City, omitted to assess property to the value of $150,000, which ought to have been assessed, and that property was thereby exempted from taxation, the omission was fatal to the entire tax, and that the complainant's taxes being increased by the omission he was entitled to an injunction to restrain the sale of his lands for such illegal taxes.

In Sanderson vs. Cross, (10 Wis. Rep., 282), the doctines of Knowlton vs. The Supervisors of Rock County, were again unanimously approved.

In their opinion the Court adopt the following language, from the City of Zanesville vs. Richards, (5 Ohio State Rep., 589): 'The General Assembly is no longer invested with the discretion to apportion the tax, and to determine upon what property and in what proportion the burden shall be laid. A uniform rate per cent. must be levied upon all property subject to taxation according to its true valuation money, so that all may bear an equal burden.'

The Ohio case was decided under provisions in the Constitution of that State similar to those in the Constitution of Wisconsin, to which we have referred.

In the Attorney-General vs. The Winnebago Lake and Fox River Plank Road Company, (11 Wis. Rep. 42), the Court say: 'It cannot be denied that under the power of exemption unjust enactments in respect of the power of taxation might be made. But those who framed the Constitution did not see fit to prevent such evils by depriving the Legislature of the power. But they did provide that whatever property was made taxable at all should be taxed by a uniform rule, which was designed to secure equality in the burdens as between the different kinds of taxable property, but of course not as between property taxable and that not taxable.'

The Court refer with approbation to the Exchange Bank of Columbus vs. Hines, (3 O. S. Rep., 1.) In that case the Supreme Court of Ohio, say: 'Taxing is required to be by a uniform rule that is, by one and the same unvarying standard. Taxing by a uniform rule requires uniformity not only in the rate of taxation, but also uniformity in the mode of assessment upon the taxable valuation. Uniformity in taxing implies equality in the burden of taxation, and this equality of burden cannot exist without uniformity in the mode of assessment, as well as the rate of taxation. But this is not all. The uniformity must be coextensive with the territory to which it applies. If a State tax, it must be uniform all over the State. If a county or city tax, it must be uniform throughout the extent of the territory to which it is applicable. But the uniformity in the rule required by the Constitution does not stop here. It must extend to all property subject to taxation, so that all property may be taxed alike equally-which is taxing by a uniform rule.'

We forbear to examine the soundness of the conclusions of the Supreme Court of Wisconsin. They need no support at our hands. We could add nothing to what they have so well and ably said in vindication of their own views. Such a discussion would encumber this opinion without throwing any new light upon the subject.

Acting upon a principle, recognized in its administration from the earliest period of its history, this Court considers itself bound in cases like this, to follow the settled adjudications of the highest State Court, giving constructions to the Constitution and laws of the State. (Leffingwell vs. Warren, decided at this term.)

The bill avers that at the time the tax complained of was levied, there was personal property in the city, of the value of from $300,000 to $400,000, liable to taxation. The demurrer admits this fact. The statute prescribing the property to be taxed, and that to be wholly exempted from taxation, shows that this personal property must have been taxed for other purposes. This tax was levied exclusively upon the real estate of the City. That was a discrimination in favor of the personal property. It was beyond the constitutional power of the Legislature to make any discrimination. Property must be wholly exempted or not exempted at all. No partial exemption or discrimination is permitted. To impose certain taxes exclusive upon one class of taxable property is as much a discrimination as to vary the rates of the same or other taxes upon different classes of property.

The latter was attempted to be done, as has been shown, in the City of Janesville. The tax was adjudged to be utterly void.

The same result must follow here.

A case illustrating more strongly than the case before us, the the wisdom of the rule of the Constitution, as thus interpreted, and the injustice which may be done in departing from it, can hardly be imagined.

The Court below erred in sustaining the demurrer and dismissing the bill.

The decree is reversed, and the cause remanded for further proceedings in conformity with this opinion.


text: Talk:Gilman v. City of Sheboygan/Opinion of the Court

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


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Griffing v. Gibb

Appeal from the decree of the District Court of the United States for the Northern District of California.

Frederick Griffing filed his bill in the District Court against Daniel Gibb and Donald Fraser, averring that he was the owner of two lots in San Francisco which originally fronted on the natural shore of the bay with bold deep water in front; that he bought this property with a view to its water front; that he built ware houses and a wharf on it to which ships of the largest size could come; that when he commenced his improvements there was no sign of any streets near him which interfered with his access to the water, the lines of Filbert and Battery streets being defined only on the City maps; that the defendants are engaged in filling up a certain part of the bay in a way which will prevent ships from coming to his ware-house-the part to be thus filled up being a lot of one hundred varas square, covered by navigable tide-water, and situate between, and forming, the northeast corner of Filbert and Battery streets as defined on the City map. The plaintiff asserts that these acts of the defendants are in violation of his rights, injurious to the public, and contrary to the Constitution and Laws of the United States and of the State of California, and therefore prays for a perpetual injunction.

To this bill the defendants demur; the Court sustained the demurrer, and the plaintiff having failed to amend the bill within the time limited by the rule of Court, a final decree was passed, dismissing the bill. Thereupon the plaintiff took an appeal to this Court.

Mr. Hepburn and Mr. Wilkins, of California, for the appellant, insisted that the bill was erroneously dismissed. The plaintiff, on the facts averred in the bill and admitted in the demurrer, was entitled to relief. He could only be defeated by proof, that Battery and Filbert streets were legally extended by the proper authorities. The bill avers that they were not legally or officially laid out. The right of the defendants to do the thing complained of, so far from being admitted in the bill, is expressly averred to be wrongful.

Mr. Latham, of California, and Mr. Black, of Pennsylvania, for the appellee, maintained the correctness of the decree on the grounds: that,

1. The bill indicates distinctly the locus in quo of the acts complained of as being on a lot between certain streets defined on the City map.

2. This Court, as well as the District Court, is bound to notice, judicially, the public laws of a State and the acts of public corporations done in pursuance of them.

3. The laws of California and the acts of the City Government are here produced, and show that the place, which the defendants are filling up, is a part of the City covered by lots and streets, and not public waters of the bay.

4. The laws of California which relate to this subject are not unconstitutional.

5. The averment that the act of the defendants was wrongful is not to be taken as admitted by the demurrer. The demurrer admits the facts set forth in the bill, but not the legal conclusions.

Mr. Justice WAYNE.

title: Griffing v. Gibb


text: Talk:Griffing v. Gibb

title: Talk:Griffing v. Gibb


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Griffing v. Gibb/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the Northern District of California.

The complainant seeks to obtain a perpetual injunction to restrain the defendants from piling and improving a lot of land claimed by them, which is said in the bill to be within the inside of the water front line of the city of San Francisco, and always covered by the tidewaters of the bay. He states that he is the owner in fee simple, and is in possession of two parcels of land; the first beginning at a point where the east line of Sanson street intersects the south line of Filbert street, running thence south-wardly along the east line of Sanson street 137 feet; thence east, at right angles to Sanson street, 275 feet; thence north, parallel with Sanson street, 137 1/2 feet, to a point in range with the south line of Filbert street; thence west 275 feet to the point of beginning. The second, 'A lot beginning at a point where the east line of Sanson street intersects the northern line of Filbert street; thence north along the east line of Sanson street 137 1/2 feet; thence at right angles to Sanson street 275 feet; thence south, parallel with Sanson street, 137 1/2 feet, to a point in range with the north line of Filbert street; thence 275 feet to the place of beginning.'

The complainant asserts that he is in the exclusive occupation and possession of both lots of land under a title in fee; that he has buildings and improvements upon them of the value of $200,000. He further avers that his lots originally fronted on and were a part of the natural shore of the bay of San Francisco; that they had a deep and high bank in the rear, with a bold and deep water in front, where the tide ebbed and flowed, where ships of the largest class navigated in safety to receive and discharge cargo. Passing over other allegations in the bill not necessary to be mentioned in this connection, the complainant asserts that he commenced to make his improvements in the year 1851, and that he had used and enjoyed them for the purposes for which they had been constructed, until interfered with by the defendants, having piles driven in front of his premises, under the navigable waters of the bay, extending over a space of 275 feet square. That the defendants assert, notwithstanding his remonstrances against such piling, that they have a right to drive them, and declare it to be their intention to build a wharf upon a lot which they claim, situate as follows: Beginning at the northeast corner formed by the extended lines of Filbert and Battery streets, being a lot of land covered by the navigable tide of the bay of San Francisco, &c., &c., where ships of the largest class habitually pass and repass in their approaches to the complainant's warehouses. It is then averred that if the piling shall be done at that point that it will interfere with the public use of the harbor and the bay, obstruct the navigation, divert the tide from its usual flow and ebb, change its current, and shallow the water by deposits of sediment, as it has already done, there being shallower water at the point designated than there had been before the defendants wrongfully began to pile there, and particularly so in front of the complainant's premises, than there had been when he began to improve his premises in the year 1851; that the depth of the water there is being constantly lessened by said piling, greatly to the complainant's pecuniary loss, and will be to his irreparable injury unless the defendants shall be restrained from continuing their unlawful acts by an injunction, and by a decree of the Court for the abatement of the defendants' piling as a nuisance. That the piling which has been done by the defendants is contiguous to his premises; that it is on a lot covered by the ebb and flow of the tide of the bay of San Francisco, and that the defendants claim the lot to be within the City of San Francisco.

The defendants filed a general demurrer to the bill. We think that the Court erred in sustaining it, and in dismissing the bill of the complainant for want of an amendment, which the Court directed to be made by the next rule day. On the demurrer the ruling of the Court should have been for the complainant, instead of which the Court dismissed his bill. The only point, in our view of the case, when it was on its hearing in the Court below, was, whether the complainant had not shown, by the facts stated on the face of his bill, artificial as it may be in point of form, a case for relief within the jurisdiction of a Court of Equity. We think it to be so, and shall remand it to the Court below for amendment and further procedure, as in the judgment of that Court, the case may require.

We further observe that the filing of a general demurrer was not in the pleadings, and facts of the case a proper defence. The defendants might have resorted to a plea alleging matter, which, if appearing on the face of the bill, would have been a good cause of demurrer, or the bill should have been answered. The demurrer filed was a denial in form and substance of the right of complainant to have his case considered in a Court of Equity, but an admission that all all the allegations of it which were properly pleaded were true. In respect to what was said in the argument that this Court would, on the general demurrer of the defendants, judicially notice the Acts of California relating to the harbor of San Francisco, and particularly of the Water Lot Act of the 26th March, 1851, we will only remark that we should do so if the pleading in the case was such as permitted it to be done, and if we did not think, as we have already said, that upon that plea that the cause should not have been dismissed, and that the Courts should have ruled in favor of the complainant; and it is now here ordered, adjudged and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed, each party paying his own costs on this appeal in this Court, and that this cause be, and the same is hereby remanded to the said Circuit Court for further proceedings to be had therein, in conformity to the opinion of this Court.

title: Griffing v. Gibb/Opinion of the Court


text: Talk:Griffing v. Gibb/Opinion of the Court


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Bronson v. Railroad Company

This case was brought here by appeal from the Circuit Court of the United States for the District of Wisconsin. It was a bill in equity brought by Greene C. Bronson and James A. Soutter trustee, &c., against the La Crosse and Milwaukie Railroad Company, and divers other defendants, creditors of that corporation. The Circuit Court made a decree in favor of the plaintiffs for one-half the amount of their claim, $565,260.05. From this decree the plaintiffs appealed. After the case came here on appeal, the parties made an agreement that the decree of the Court below should be reversed and a decree entered for the whole amount of the claim, that is to say, for a sum twice as large as that found to be due by the Circuit Court. F. P. James, Isaac Seymour, and N. A. Cowdrey moved for leave to intervene in the cause so as to protect their interests. They were creditors of the Railroad Company and purchasers of part of the road, stock and franchises, and alleged that the agreement to increase the amount of the decree was made with the fraudulent intent to injure them. The motions for leave to intervene and to dismiss the appeal, were made at the same time, were founded upon the affidavits of which the substance is given by Mr. Justice Davis, and were argued together.

title: Bronson v. Railroad Company


text: Talk:Bronson v. Railroad Company

title: Talk:Bronson v. Railroad Company


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Bronson v. Railroad Company/Opinion of the Court

Mr. Black, of Pennsylvania, in support of the motion.

Mr. Ewing, of Ohio, and Mr. Carlisle, of Washington City, for the appellants.

Mr. Justice DAVIS. F. P. James, Isaac Seymour, and N. A. Cowdrey ask leave to intervene in this cause, and to dismiss the appeal, and predicate their motion on two affidavits of F. P. James.

The first affidavit states substantially that on the 31st of December, 1856, the La Crosse and Milwaukie Railroad Company executed a mortgage on the western division of their road, lying between Portage and La Crosse, to Greene C. Bronson, James A. Soutter, and Shepard Knapp, as trustees, to secure certain bonds, which mortgage was afterwards foreclosed in the District Court of Wisconsin, and the mortgaged property sold, and purchased by the parties asking to intervene; that the same Railroad Company, on the 17th day of August, 1857, executed another mortgage to these complainants, Bronson and Soutter, on the eastern division of their road, lying between Portgage and Milwaukee, to secure certain other bonds; that suit was also brought on said mortage in the District Court of Wisconsin, where a decree was passed on the 13th day of January, 1862, for one-half of the face of the bonds, from which decree an appeal was taken by Bronson and Soutter to this Court; and that the parties to the suit have entered into fraudulent stipulations to reform the decree rendered below, so that the bonds will be paid in full, and that James Cowdrey and Seymour, as purchasers under the first mortgage, will be injured if the decree is thus reformed.

The second affidavit states that Nathaniel S. Bouton, on the 5th day of April, 1859, recovered a judgment in the same District Court for upwards of $7,000 against the La Crosse and Milwaukie Railroad Company, which judgment was assigned to F. P James & Co., and was a lien when this suit was instituted, and that neither Bouton nor his assignees were notified of the pendency of these proceedings; that there were issued under the mortgage of December 31st, 1856, bonds to the nominal or par value of $4,000,000, the greater portion of which are held by James and his associates in their own right or in trust for others, and that they have by the advice of counsel determined to abandon their purchase and ask for a re-sale of the whole property mortgaged by the deed of December 31st, 1856.

Have James, Seymour, and Cowdrey, a right to intervene in this cause, to make a motion to dismiss this appeal, or for any other purpose? The La Crosse and Milwaukee Railroad is a corporation created by the laws of Wisconsin to build a continuous line of railroad from the City of Milwaukie, on Lake Michigan, to La Crosse on the Mississippi River. Power was given to the Company to mortgage separate portions of their road, and in execution of that power the mortgage of December 31st, 1856, on the western division, and the mortgage of August 17th, 1857, on the eastern division were given. These mortgages were executed to secure specific liens on different parts of the road, and the bondholders evidently relied on these liens alone for their security. Separate suits were brought at different times to foreclose these mortgages, and the parties in one suit were not necessarily parties in the other. The right to intervene as made by the first affidavit rests solely on the ground that James and his associates were purchasers of the western division of the road, which, as they insist, included 'the personal property, machinery, rolling stock, franchises, rights, and privileges of the entire road.'

This Court cannot in this suit decide whether the construction contended for by these parties as to the extent of their purchase is correct or not. Under the pleadings, no question is or could have been raised as to what property is covered by the mortgage deed. The controversy in the Court below was whether there should be a decree nisi for any amount, and if so how much. The Court in fixing the amount due on the mortgage, estimated the bonds not at par, but at the rate of fifty cents on the dollar, and decreed accordingly, and the complainants below appealed. It is not perceived how the stipulation to reform the decree can affect the right of James & Co., to the claim which they advance. If under their purchase they take the rolling stock and franchises of the whole road, what concern is it to them whether the decree is for $500,000, or $1,000,000?

Such a right is surely not dependent on the amount of the decree. But it is claimed, in the second affidavit, that Bouton, a judgment creditor, having lien, and necessarily a party, had no notice of the pendency of this suit. The answer to this statement is, that the record informs us (p. 297) that Bouton did appear by attorney, and consented that a decree might be rendered pursuant to the prayer in the bill.

One other ground remains on which the right to intervene is placed-that of general creditors. James and his associates, owning a large portion of the bonds secured by the lien of the first mortgage, insist that the mortgage is an insufficient security, and that they are, therefore, interested in lessening the amount of the decree to be rendered in this cause. Every creditor is, of course, concerned that his debtor should reduce his obligations. The less the debtor owes the greater his ability to pay.

But was it ever seriously maintained that a general creditor, having no specific lien, had a right to interfere in the contests between his debtor and third parties? If the general creditors of a mortgagor are suffered to intervene in an appellate tribunal, this Court would become the triers of questions of fact outside of the record, and that too on ex parte affidavits-by no means the best mode of ascertaining truth.

If the right was conceded to one creditor it would have to be to another, and where the creditors are numerous, as in the case of railroad bondholders, the exercise of the right would lead to great embarrassment.

If, as is charged, the parties to this suit have made agreements in fraud of the law, or rights of third persons, the Circuit Court of Wisconsin can give relief in a suit instituted there for that purpose, where testimony can be taken, and the valuable right of cross-examination at the same time preserved. In any case-where it is apprehended that the parties to the record seek to dispose of it by stipulations fraudulently made, and which will affect injuriously the rights of others-the Court will respectfully hear and consider suggestions, and will endeavor to protect itself from imposition, and prevent the wrong that is contemplated.

But the Court cannot lay down any general rule of practice by which it will be governed, for each case must depend on its own circumstances.

The motion is overruled.

At a subsequent day of the term a motion was made by one of the persons who was a joint defendant with the La Crosse and Milwaukie Railroad Company, to dismiss the appeal on the ground that the decree of the Court below was not final.

Mr. Carpenter, of Wisconsin, in support of the motion.

Mr. Ewing and Mr. Carlisle, contra.

Mr. Justice DAVIS.

This case is again before us. A motion is now made by one of the defendants to dismiss the appeal, because there was no final decree in the meaning of the Act of Congress which authorizes this Court to exercise appellate jurisdiction only by appeal, or writ of error from a final judgment or decree.

This is a suit in equity brought by Bronson & Soutter in the District Court of Wisconsin to foreclose a second mortgage, given by the La Crosse and Milwaukie Railroad Company, to secure a large issue of bonds. The company being in arrears for interest, Bronson & Soutter sought the aid of a Court of Equity to enforce their trust. Numerous persons were made defendants, who had, or were supposed to have liens, and the record, which has swelled to a printed volume of six hundred pages, shows the litigation to have been protracted and bitter. The bill was filed on the 9th day of December, 1859. A part of the defendants answered, which answers were replied to, and a pro confesso decree was taken as to those who did not answer; and the cause came on for final hearing on the 13th day of January, 1862. The Court judicially ascertained that there was owing to the complainants, on the security of their mortgage, the sum of $500,000 for principal, and $65,260.05 for interest, and decreed that the mortgaged premises should be sold at public auction by the marshal, unless the amount found due for arrears of interest, with taxed costs, should be paid before the day of sale. The equity of redemption was foreclosed, and it was ordered, if a sale should be made, that the purchaser should have possession, and that those who had control of the road should surrender the possession on production of the deed from the marshal with a certified copy of the order confirming the sale. It was also decreed, if the interest and costs were paid, that further proceedings should be staid until some future default should be made in the payment of interest, when, on petition, the Court would found another order for a sale.

The litigation between Bronson & Soutter and the defendants, on any matter in which there was a joint interest, is closed by this decree. The object of the suit was to ascertain how much money was due on the security of the mortgage, and to sell the property unless the amount was paid. The Court did find what was due, and ordered a sale. The very purpose of the litigation, which was initiated by Bronson & Soutter, was accomplished and nothing remained for them to do, if they felt aggrieved by the finding of the Court, but to appeal. Their right of appeal attached on the rendition of the decree, and the time limited in which an appeal could be taken began to run from the date of the decree. It is said that some exceptions to the report of the master were pending and undetermined when this decree was made; but those exceptions did not relate to any claim of Bronson & Soutter; they were collateral to the main purpose of the suit, and concerned the defendants alone.

If Bronson & Soutter should have to sit quietly by until the equities of the different lien creditors of the La Crosse & Milwaukie Railroad Company-with which they have no concern-are determined, they might be ruined before they could avail themselves of their right of appeal. Bronson & Soutter insist that there is due them, as trustees, on this mortgage, $1,000,000, with large arrears of interest, which claim was reduced one-half by the Court below.

The La Crosse & Milwaukie Railroad Company is evidently greatly embarrassed, and the property mortgaged is doubtless the only security relied on by the trustees for payment.

Now, if the Court had the right to make the decree and order the sale-of which there can be no question-and the right of appeal is in abeyance until the sale is perfected, and the different collateral equities between the Railroad Company and other parties are settled, great mischief might ensue.

If this Court should find that Bronson & Soutter are entitled to their whole claim, and in the meantime the property is sold and out of their control, how would their success benefit them? It would be a victory barren of results. If the decree was reversed there could be no restitution of the road, its property and franchises; for purchasers at a judicial sale are protected.

A rule, from which consequences so injurious to the rights of parties litigant would necessarily result, has never received the sanction of this Court.

This decree is not final, in the strict technical sense of the word, for something yet remains for the Court below to do. But, as was said by Chief Justice Taney, in Forgay et al. vs. Conrad, (6 How., 203), 'this Court has not therefore understood the words 'final decrees,' in this strict and technical sense, but has given to them a more liberal, and, as we think, a more reasonable construction, and one more consonant to the intention of the Legislature.'

In the case of Ray vs. Law, (3 Cranch, 179), and Whiting vs. The Bank of the United States, (13 Wheaton, 15), this Court has decided that a decree for the sale of mortgaged premises is a final decree from which an appeal lies. The Court rested their decision on the ground that when the mortgage was foreclosed and a sale ordered, the merits of the controversy were finally settled, and the subsequent proceedings were simply a means of executing the decree.

But, in denial of the right of appeal, it is said that a cross bill filed by leave of the Court is undetermined. This cause was heard and determined on the pleadings then existing, and no cross bill was pending, although the litigation had been protracted beyond two years. It is true that the Court, on the 7th day of January, 1862, and before the decree was passed, gave leave to the 'defendants, Sebre, Howard, Graham, and Scott, the Milwaukie & Minnesota Railroad Company, and any other defendants who have liens subsequent to those claimed by Selah Chamberlain, to file a cross bill against said Chamberlain, contesting the liens under the lease or assignment, or judgment claimed by him in his answer-provided said cross bill should be filed by the 1st of February, 1862.'

The bill was filed on the 1st of February, after the decree of foreclosure was made and sale of the premises was ordered, and Bronson & Soutter were made parties, although there was no order of the Court permitting it to be done, and process was regularly issued and served on them.

It is an independent proceeding, instituted by certain lien creditors of the road, who were defendants in the original suit, seeking to invalidate a prior lien set up by Chamberlain, another defendant, in his answer. It can affect in no wise the right of Bronson & Soutter to foreclose their mortgage, and has no bearing on the legitimate questions presented for the consideration of the Court in the bill filed by them for that purpose. Such must have been the view entertained by the Judge of the District Court, for we cannot suppose that he intended to embarrass the parties to the original suit, after it was ended, by allowing the defendants to that suit to litigate their own claims to the injury of the original complainants. It is proper to say, that we do not approve of the practice of filing a cross bill after the original suit has been heard and its merits passed on. If any of the defendants in this suit wished to have the equities between themselves settled without instituting an original suit for that purpose, they should have applied to the Court at an earlier stage of the litigation, and not waited until the pleadings were perfected, proofs taken, and the cause, after two years of delay, ready for hearing.

The motion is overruled.


text: Talk:Bronson v. Railroad Company/Opinion of the Court


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Sumner. v. Hicks.

Appeal from the District Court of the United States for the District of Wisconsin.

Mr. Smith, of Wisconsin, for Appellants.

No counsel appeared for Appellees.

Mr. Justice SWAYNE.

title: Sumner. v. Hicks.


text: Talk:Sumner. v. Hicks.

title: Talk:Sumner. v. Hicks.


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Sumner. v. Hicks./Opinion of the Court

This is a suit in equity, having for its object, to set aside two assignments made by the defendants, Henry Hicks and Asa Hicks, to their co-defendant, Forbes.

The appellants are the complainants in the bill. They have recovered judgments at law against Henry and Asa Hicks, upon which executions have been returned unsatisfied.

The first assignment was executed on the 4th of January, 1858. The conveyance of the property is followed in the instrument by this provision: 'In trust nevertheless, and to and for the following uses, interests and purposes, that is to say, That the said party of the second part shall take possession of all and singular the lands, tenements and hereditaments, property and effects hereby assigned, and sell and dispose of the same upon such terms and conditions as in his judgment may appear best and most for the interest of the parties concerned, and convert the same into money.

The second assignment bears date on the 6th of May, 1858. It is declared 'to be made and entered into for the express purpose of correcting and explaining the true intent and meaning of a like indenture made and executed between the same parties, on the 4th day of January, A. D. 1858, and which said last described instrument as corrected shall read as follows:'

Then follows the body of the instrument, which is the same with that of the prior assignment, except that in the clause authorising the assignee to sell and dispose of the assigned property, the words 'upon such terms and conditions as in his judgment may appear best and most for the interest of the parties concerned' are omitted.

The first assignment was executed only by the assignors. The second recites that it is between Henry Hicks and Asa Hicks, of the first part, and Forbes, of the second part; and it is executed by all the parties.

The Statute of Wisconsin upon the subject of fraudulent conveyance is substantially the same with that of the 13th of Elizabeth, chapter 5.

The Supreme Court of the State has held that such a provision as that referred to in the first assignment renders the instrument fraudulent and void as against creditors. Keep vs. Sanderson, 12 Wis., 362.

In cases like this, involving the construction of a State statute, this Court is governed by the judgment of the highest judicial authority of the State. (Leffingwell vs. Warren, decided at this term.) This ruling of the Supreme Court of Wisconsin is sustained by numerous adjudications in other States. 2 Seld., 510. 6 Seld. 691; 17 New York, 21; 21 New York, 168; 2 Duer, 533; 24 Illinois, 257; 11 Md., 173.

There are conflicting authorities upon the subject of great weight. 6 O. S., 620; 7 Paige, 272; 11 Barb., 198; 4 Sandf., S.C.., 252. See also the dissenting opinion of Brown, Justice, in Benedick vs. Post, et al., (12 Barb., 168.) The question, as an original one, is not before, us and we express no opinion upon it.

The Statute of Elizabeth was declaratory of the common law. In the absence of such legislation the common law would have accomplished the same results. Twyne's case, (3 Coke, 80. S.C.., 1.) Smith's L. C., 1. Codagan vs. Kennet, (Cowp., 434.) Wheaton vs. Sexton, 1 Amer. L. C., 68; 1 Cranch, 316; 1 Binney, 514, 523; 4 McCord, 295.

It is not claimed that when the second assignment was executed any creditor had acquired a lien upon the property covered by it.

That assignment is free from the vice which was fatal to its predecessor, and is valid. 11 Illinois, 503; 16 Pick, 247; 28 Vermont, 150; 2 Ed. C. R., 289. This proposition is so clear, upon reason and authority, that it would be a waste of time to discuss it.

None of the authorities relied upon by the counsel for the appellant are in conflict with this decision.

In one of them the assignee did not join in the execution of the second instrument, and it did not appear that he had ever assented to it. In the others, creditors had interposed and intervening rights had attached to the property.

'It is a settled principle that a deed voluntary or even fraudulent in its creation, and voidable by a purchaser, may become good by matter ex post facto.' 4 Kent's Com., 559; 1 John. C. R., 136; 15 John. R., 571; 2 Edwards C. R., 289; 1 Sid., 133; Amer. L. C., 82.

The Court below dismissed the bill. We think there is no error in the decree, and it is affirmed with costs.

title: Sumner. v. Hicks./Opinion of the Court


text: Talk:Sumner. v. Hicks./Opinion of the Court


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Wright v. Bales

Error to the Circuit Court of the United States for the Southern District of Ohio.

On the 31st of May, 1859, Matthias B. Wright and John Conner brought trespass on the case in the Circuit Court of the United States for the Southern District of Ohio, against Moses Bales, alleging in their declaration an infringement by defendant of a certain patent right to make and vend a draining plow of their invention. The defendant pleaded not guilty. Verdict for defendant, with costs. Plaintiff, in his exceptions, assigned, among other grounds of error, the refusal of the Court to allow Wright, one of the plaintiffs, to testify in the cause. Writ of error issued April 2d, 1860.

Mr. Lee and Mr. Fisher, of Ohio, for Plaintiff in Error.

By the law of Ohio, the parties to a cause are competent witnesses in it. State laws of evidence are rules of decision in civil trials at the common law before Courts of the United States. Civil Code of Ohio, § 310; Act of April 12, 1858, amending code; McNiel vs. Holbrook, (12 Peters, 84); Sims vs. Hundley, (6 How., 1); U.S. vs. Dunham, (Monthly Law Reporter, July, 1859); Smith vs. Carrington, (4 Cranch, 62).

No counsel appeared for Defendant in Error.

Mr. Justice WAYNE.

title: Wright v. Bales


text: Talk:Wright v. Bales

title: Talk:Wright v. Bales


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Wright v. Bales/Opinion of the Court

The plaintiff in error seeks for a reversal of the judgment in this case, for errors alleged to have occurred upon the trial of it in the Court below, but our attention having been called to the rejection of a witness, we shall confine ourselves to that assignment of error, without considering such of them as relate to the merits of the litigation or to the admission of the deposition of A. B. Dickerson, taken de bene esse, as evidence in the case.

The error complained of is, that the Court erred in refusing to allow one of the plaintiffs, Matthias B. Wright, to testify as a witness in the cause.

The cause was tried in the Circuit Court of the United States, sitting at Cincinnati, Ohio. In the year 1853, the Legislature of that State passed a statute entitled 'An Act to establish a Code of Civil Procedure,' in which it is declared that 'no person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime, but such entries or conviction may be shown for the purpose of affecting his credibility.' This statute was in force at the time of this trial. Wright, one of the plaintiffs, was offered as a witness under it, but was rejected by the Court as incompetent to testify, by reason of his interest in the event of the suit, and because of a rule of Court, which it was said excluded such a witness from examination unless previous notice had been given to the opposite party of an intention to examine him.

It sppears, however, whatever may have been the intended application of that rule, under the 'code of civil procedure' or otherwise, that it had become inoperative by the repeal in the year 1858 of that section of the Ohio code which required such a notice to be given. The repealing Act of 1858 is a statute to amend the 313th and 314th sections of the code of civil procedure.

The rejection of Wright, then, as a witness, for incompetency to testify in his own behalf, raises again, in this Court, the question whether the statutory enactments of the States of the Union, in respect to evidence in cases at common law, are not obligatory upon Judges in the Courts of the United States to apply them as rules of decision in the trials of such cases.

The 34th section of the Judiciary Act of the 24th September, 1789, (Statutes at Large), is in these words: 'that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as 'rules of decision' in trials at common law in the Courts of the United States, in cases where they apply.' Meaning by the word trials, as this Court has said in Wayman vs. Southard, (10 Wheat.), matters of controversy, and not to executions and the mode of executing them. As to the application and the extent of the allowances of the laws of the States in such cases, this Court gave its interpretation of the 34th section very fully in McNeal vs. Holbrook, (13 Peters, 84). We then said: 'We do not perceive any sufficient reason for so construing this Act of Congress as to exclude from its provisions those statutes of the several States which prescribe rules of evidence in civil cases in trials at common law. Indeed, it would be difficult to make the laws of the State in relation to the rights of property the rule of decision in the Circuit Court, without associating with them the laws of the same State, prescribing the rules of evidence by which the rights of property must be dicided. How could the Courts of the United States decide whether property had been legally transferred, unless they resorted to the laws of the State to ascertain by what evidence the transfer must be established. In some cases to laws of the States require written evidence, in others it dispenses with it, and permits the party to prove his case by parol testimony; and what rule of evidence could the Courts of the United States adopt to decide a question of property but the rule which the Legislature of the State has prescribed? The object of the law of Congress was to make the rules of decision in the Courts of the United States the same with those of the States; taking care to preserve the rights of the United States, by the exceptions contained in the same section. Justice to the citizens of the several States required this to be lone, and the natural import of the words used in the Act of Congress includes the laws in relation to evidence, as well as the laws in relation to property. We think they are both embraced in it, and as by a law of Georgia the endorsements on these notes was made prima facie evidence that they had been so endorsed by the proper party, we think that the Circuit Court was bound to regard this law as a rule of evidence.' The same ruling was repeated by this Court in Sims vs. Hundley, (6 Howard, 1), upon a question whether a notary's certificate, made evidence by a statute of Mississippi, was admissible in the Circuit Court of the United States for that State. We said, it is true that upon general principles of commercial law, this certificate would not be admissible. But it is made evidence by the statutes of Mississippi; and the rules of evidence prescribed by the statute of a State are always followed in the Courts of the United States when sitting in the State in commercial cases as well as in others.

Since these decisions were made, the Judges of the United States Courts have administered the laws of evidence of the States in conformity with them, and there was error in this case by the Court below for not having done so. For such ruling, we direct that the judgment be reversed and order a venire facias de nova.

title: Wright v. Bales/Opinion of the Court


text: Talk:Wright v. Bales/Opinion of the Court


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Ogilvie. v. Knox Insurance Company.

Appeal from the Circuit Court of the United States, for the District of Indiana.

Mr. Gillet, of Washington City, and Mr. Judah, of Indiana, for the appellants.

Mr. Gookins, of Indiana, for the Appellees.

Mr. Justice GRIER.

When this case came before us on a former occasion (see 22 How., 380,) the decree of the Circuit Court dismissing the bill was reversed, and the record remanded, with instructions to that Court to enter a decree for the complainants against the respondents, severally, for such amount as should appear was due and unpaid by each of them on their several shares of the capital stock of the Knox Insurance Company, and to have such other and further proceedings as to justice and right might appertain.

title: Ogilvie. v. Knox Insurance Company.


text: Talk:Ogilvie. v. Knox Insurance Company.


text:
Ogilvie. v. Knox Insurance Company./Opinion of the Court

At the May Term, 1860, of the Circuit Court, a decree was entered, in conformity with the judgment of this Court, ascertaining the amount of the judgments, due by the Insurance Company to the several complainants, and the several amounts due by each of the stockholders, respondents to the company. At the next November Term divers other creditors of the Company filed their petitions, setting forth that they also had become judgment creditors of the Company, and praying to be made parties to the bill, and suggesting that there were other persons indebted to the Company 'whose indebtedness ought to be paid for the benefit of the petitioners;' that the amount found to be due from those against whom a decree has already been rendered was insufficient to liquidate the claims of the petitioners and other parties entitled to participate in the distribution of said funds; and praying that a Receiver might be appointed to receive and collect from the persons so indebted the amounts due by them, respectively, &c., &c. The Court then appointed a Receiver, according to the request of petitioners. But before the funds of the Company were collected, on the 7th of December, the Court entered a decree that all the moneys recovered or to be recovered under the decree made at last term be distributed among the original complainants and the several persons who had filed their petitions, praying to be made parties, complainants, &c., &c., and appointing a Master to state an account, &c.

The appellants contend that this decree is erroneous and unjust to the original petitioners. This may possibly be found to be true when the proper time comes to have it reviewed. But the appeal as well as the decree, is premature. There is no final decree in the case. After the assets are all collected by the Receiver, so that the Master may ascertain the amount to be distributed, the question now proposed will be properly raised, and decided on exceptions to the Master's report. That report should state the amount of assets to be distributed, the amount collected from the original defendants, also the other amounts collected by the Receiver from persons not in the decree; whether the amounts collected from the parties respondent are sufficient to pay each of the original parties complainant? if not, how much to each; how much other assets have been collected by the receiver, and how much would be coming to each creditor on the hypothesis that all the assets are to be divided among all the creditors equally.

With these facts ascertained, the Court will be in a condition to make a final decree, which can be reviewed by this Court, but not till then.

The appeal is therefore premature, and must be dismissed.


text: Talk:Ogilvie. v. Knox Insurance Company./Opinion of the Court


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Callan v. May

Appeal from the Circuit Court of the United States for the District of Columbia.

The record brought up by this appeal showed that in 1862 a cause was pending in the Circuit Court for the District of Columbia designated as Statham et al. vs. Callan et al. In that cause the Court made certain decrees and decretal orders in pursuance of which a sale was made by trustees of some real property in the City of Washington. The purchaser at the first sale made by the trustees was J. J. Waring, whose contract was annulled by his failure to comply with the terms of it. Another sale was then regularly made under the order of the Court to Austin Sherman, who assigned his right to John Frederick May, and May having fully complied with the terms of the sale, a final order ratifying and confirming it was made by the Court. May being by virtue of these proceedings the owner of the property in question, found John F. Callan in possession. Callan refused to go out, alleging that he was there under an agreement made between himself and Waring, the purchaser at the first sale, who had made default. He asserted also that May had confirmed this agreement of Waring, and made it binding upon himself by accepting the note which was due under it. May then presented his petition to the Court, setting forth the facts and praying for process to put him in possession. Callan answered the petition. The Court found that May was entitled to possession, and awarded him a writ of habere facias possessionem. Callan petitioned for an appeal to the Supreme Court. The appeal was allowed on special allocatur, by Mr. Justice Wayne, and the record brought up. May moved to dismiss on the ground that no appeal would lie from such an order as that made in his favor by the Circuit Court.

Mr. Carlisle, of Washington City, and Mr. May, of Maryland, for the motion.

Mr. Coxe, of Washington City, contra.

Mr. Chief Justice TANEY.

title: Callan v. May


text: Talk:Callan v. May

title: Talk:Callan v. May


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Callan v. May/Opinion of the Court

This appeal must be dismissed. The application of May for process to obtain possession of the land was not a suit in which any final decree could be passed so as to give to either party a right to appeal. The proceedings in the Circuit Court after its decree was affirmed in the case of Statham, Smithson & Co. vs. Callan, et al., were nothing more than proceedings required to carry into execution that decree. And when May had become the purchaser, and the sale was ratified by the Court, and he had complied with the conditions of the sale, he was entitled, as a matter of course, to the process of the Court to put him in possession, The order of the Court directing process to issue is not such a final order or decree in a case as the Act of 1789 contemplates. It is nothing more than an order of process to carry into execution a final decree already passed in a case in which May was not a party.

If there was any agreement between May and Callan, after May became the purchaser, whereby the land was leased to Callan for a term which is not yet expired, the remedy of Callan was by a bill in Equity setting out the agreement, and praying that May might be enjoined from disturbing him in his possession. This would have been a new case in which a final decree might have been passed and an appeal legally taken. But such an agreement can furnish no ground for appeal from an order of the Circuit Court carrying into execution the mandate of this Court in the case of Statham, Smithson & Co. vs. Callan et al., in which May was not a party and had no concern.

It seems to be supposed by counsel in the argument that the order of the Judge of this Court allowing the appeal was conclusive, and that its validity was not new open to dispute. But the allocatur of a Judge was never so considered. Writs of error to State Courts cannot issue without the allocatur of a Judge of this Court. Yet there is hardly a term in which a case of that description has not been dismissed upon the ground that the transcript did not show a case in which a writ of error would lie. A contrary doctrine would be exceedingly inconvenient if it could be maintained, and would throw upon a single Judge the responsibility which properly belongs to the Court. And it does not by any means follow that the Judge who authorizes the appeal has made up his own mind that the party is legally entitled to it. He may, and no doubt often does, entertain doubts upon the subject, or may regard the point as new and undecided, and upon which different opinions may be entertained, and in such cases he grants the appeal in order to bring the matter before the Court and enable it to decide for itself whether the case is or is not within their appellate jurisdiction as regulated by the Act of Congress. The allocatur of a single Judge certainly cannot enlarge the appellate powers of this Court beyond the limits prescribed by law, and that law does not authorize an appeal from an order directing execution to issue to enforce a judgment.

This appeal must therefore be dismissed.

title: Callan v. May/Opinion of the Court


text: Talk:Callan v. May/Opinion of the Court

title: Talk:Callan v. May/Opinion of the Court


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Wright. v. Sill

Appeal from the Circuit Court of the United States for the Northern District of Ohio.

This case was submitted to the Court upon the record, without any argument, written or oral.

Mr. Justice SWAYNE.

title: Wright. v. Sill


text: Talk:Wright. v. Sill

title: Talk:Wright. v. Sill


text:
Wright. v. Sill/Opinion of the Court

This is a suit in equity, brought here by appeal from the Circuit Court of the United States for the Northern District of Ohio.

The questions presented are, whether the 60th section of the Act of the Legislature of Ohio, entitled 'An Act to incorporate the State Bank of Ohio and other Banking Companies,' passed February 24th, 1845, constitutes a contract upon the subject of taxation, which is binding upon the State; and, if so, whether that contract is impaired by the subsequent Act of the Legislature, passed April 5th, 1859, entitled 'An Act for the assessment and taxation of all the property in this State, and for levying taxes thereon according to its true value in money.'

These questions came before this Court the first time in the Piqua Branch of the State Bank of Ohio vs. Knoop, (16 How., 369), and were resolved in the affirmative. They have since been repeatedly before the Court, and have, uniformly, been decided in the same way. Dodge vs. Woolsey, (18 How., 331); Mechanics' and Traders' Bank vs. Debolt, (18 How., 380); Jefferson Branch Bank vs. Skelley, (1 Black, 436); Franklin Branch Bank vs. The State of Ohio, (1 Black, 474).

Whatever differences of opinion may have existed in this Court originally in regard to these questions, or might now exist if they were open for reconsideration, it is sufficient to say that they are concluded by these adjudications. The argument upon both sides was exhausted in the earlier cases. It could subserve no useful purpose again to examine the subject.

The decree of the Court below is affirmed, with costs.

title: Wright. v. Sill/Opinion of the Court


text: Talk:Wright. v. Sill/Opinion of the Court


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Parker v. Winnipiseogee Lake Cotton and Woollen Company

Appeal from the Circuit Court of the United States for the District of New Hampshire.

Mr. Curtis, of Massachusetts, for Appellant.

Mr. Hackett, of New Hampshire, contra.

Mr. Justice SWAYNE.


text: Talk:Parker v. Winnipiseogee Lake Cotton and Woollen Company


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Parker v. Winnipiseogee Lake Cotton and Woollen Company/Opinion of the Court

This is a suit in equity. The appellant filed his bill to procure a remedy against an alleged nuisance. The Circuit Court dismissed the bill. He thereupon appealed to this Court.

It appears in the case that the appellant is the owner in fee simple of a certain parcel of land situated on the Winnipiseogee River, in the Village of Meredith Bridge. He owns, also, in connection with this real estate, the right to use 'one-half of the water sufficient to carry wheels for operating a trip-hammer, grindstone, and bellows.' He claims under Stephen Perley, whose title is undisputed. Perley conveyed the land and the whole of the water-power mentioned to Daniel Tucker, by deed bearing date February 27, 1808. Tucker conveyed the same premises, on the 14th of April, 1832, to F. W. Boynton. The deed of Perley is referred to in Tucker's deed for a description of the land and water right thereby conveyed. While the premises belonged to Tucker, the dam at Meredith Bridge was rebuilt. The amount to be paid by each of the parties interested in the water-power was fixed by arbitration. The arbitrators awarded that Tucker should pay two-twelfths of the cost of the dam 'upon the Meredith side of the river,' and he paid accordingly.

On the 29th of October, 1824, Boynton, by deed of that date, conveyed to Asa F. Parker. In this deed the water right is thus described: 'Which said water privilege is the right to draw one-half of the water from the flume connected with the premises.' On the same day Asa F. Parker, by deed containing the same description of the premises, conveyed to the appellant.

The Winnipiseogee river has its source in Winnipiseogee Lake. The Lake has its outlet at a place called the Weirs, six miles above the Village of Meredith Bridge. The outlet was formerly, by a natural channel, from five to seven hundred feet in length. The water discharges itself from this channel into Long Bay-a sheet of water about four and a half miles long, and from half a mile to a mile wide. At the foot of Long Bay the water is again discharged by a channel about a thousand feet long into 'Little Bay.' At the outlet from Long Bay is Lake Village. From Little Bay the water is discharged into Sanborton Bay, by a channel about fifteen hundred feet in length. At the outlet of Little Bay is Meredith Village, where the premises of the complainant are situated. Little Bay forms the headwater of the dam from which the appellant's water-power is supplied. The water is discharged out of Sanborton Bay, at or near a place called Union Bridge, and thence pursues its course, about ten or twelve miles, to its confluence with the Pemigewasset, below which the united streams take the name of the Merrimac River. This river receiving several affluents on its way-passes by and supplies with their water-power the manufacturing towns of Lowell and Lawrence.

The dam at Meredith Bridge was built prior to 1808. There is a dam at Lake Village, which was built in 1829.

After Perley conveyed to Tucker he cut a canal through his own land, tapping Little Bay, above the dam at Meredith Bridge, and discharging into the river, below the dam, at its entrance into Sanborton Bay.

The defendant is a corporation, created and clothed with its powers by acts of the Legislature of New Hampshire. Its stock is owned by the great manufacturing companies of Lowell and Lawrence, except a few shares, held for purposes of convenience, by individuals. The main object of its creation was to secure a more abundant and regular supply of water for the mills at those places. This was to be accomplished by making Lake Winnipiseogee a vast reservoir of water, to be accumulated and retained in wet weather, and to be drawn off and passed down the stream, as it might be needed, in dry weather.

The flow of water below the lake was thus to be equalized, as far as practicable, throughout the year.

With a view to this object, the defendant has bought up all the water-rights relating to the lake, and all those upon the river above, and for some distance below, Meredith Bridge. Those holding such rights at that village have been compromised with, except the appellant. The answer avers that he was offered the same that was paid to others, and that he refused-seeking to extort an unreasonable and unconscionable sum.

The defendants made excavations at the Weirs in 1845-6, whereby the lake can be drawn down from four to six feet lower than was before possible.

They erected a new stone dam at Lake Villaga in 1851. By means of this dam they can arrest the flow of the water so as to raise it above the intermediate descents back to the lake, and raise the water in the lake and retain it there.

They have enlarged the Perley Canal and increased the flow of water through it. This was done in 1846.

In making their purchases and improvements, the defendants have expended about $300,000. All was done without any objection from the appellant.

It is admitted by the answer, that the defendants intend to make still deeper excavations at the Weirs, and that they have controlled and intend hereafter to control the waters of the lake, both by retention and discharge, so as to equalize at all times throughout the year, as far as practicable, the flow of water below the outlet of the lake.

The gravamen of the appellant's grievances is thus alleged in this bill:

'And the said defendants have thus caused a proportionate inequality in the quantity of water flowing in the river Winnipiseogee, by the premises of your orator greater than any inequality which naturally arose from the ordinary changes of the season, or from the ordinary fluctuations in the head of water in the said lake before the attempted regulation of the same by the said defendants-to the molestation, damage, and injury of your orator in the use and improvement of the said mill privilege and water-power aforesaid.'

'And your orator further represents, that his said water-power is damaged to the same extent as the equality of supply of water at all seasons is disturbed.'

'And that the defendants, with the intent and design to deprive your orator of his just rights, have seized upon and taken possession of the waters of the said Winnipiseogee Lake and River, to regulate and control them as aforesaid, and to use the said lake as a reservoir, out of which to supply the Merrimac River with water in time of drouth, and to use the said Winnipiseogee River as a channel through which to regulate and control such supply, whenever and as often as the supply of water in the Merrimac from other sources may fail, or become insufficient for a motive power for the use of the manufacturing establishments situated thereon, and for the benefit, profit, and advantage of such manufacturing establishments, their owners or occupants, or parties interested therein, or some of them, and to the hurt and damage of your orator in the use, value, and capacity for improvement of his said weter-power at Meredith Bridge aforesaid.'

In reply to these allegations, the defendants say, 'that they have, ever since said dam and excavation were made, used and occupied the same for the purpose of giving greater regularity and steadiness to the flow of water in said river, and to reserve and hold back the surplus water, which would, at wet seasons and during spring freshets, have otherwise run to waste, retarding and interfering with the operation and use of the mills upon said Winnipiseogee and Merrimac Rivers, and discharging the same at such times as the same was required in consequence of the low state of the waters in said rivers for the use thereof, and that the water of said lake and bay has been so managed and used as to be a material benefit and advantage to the mills upon said rivers.'

'And the defendants deny that they have in any manner caused a proportional inequality in the quantity of water flowing in the River Winnipiseogee, by the premises of said complainant, greater either than any inequality which naturally arose from the ordinary changes of the seasons, or from the ordinary fluctuations in the head of water in the said lake before the regulation of the same by the said defendants, to the molestation, damage, or injury of said orator, in the improvement of his said mill privilege and water-power. And said defendants further say, that said complainants' water-power is not damaged by anything which has been done by them, the equality of the supply of water being not otherwise disturbed by them than is in this answer hereinbefore set forth, and its supply being rendered more equal at times when it was formerly scanty, and the excess of water being prevented at periods of high water, which would not aid, but would retard by back-water the operation of said complainants' mill.'

The issue between the parties is thus presented. Several other matters of defence are set forth in the answer. The view which we have taken of the case renders it unnecessary particularly to advert to them.

The appellant alleges an injury to his water-right commensurate, in extent, with the additional inequality in the flow of water in the river, which he alleges to have been caused by the works of the defendants.

They deny the injury, and claim that his water-power is improved. The appellant does not state in his bill how the injury is produced, nor in what it consists. The particular nature of the injury is unexplained. He complains neither of a diminished supply of water nor of back-water. We have looked carefully into the evidence upon the subject; the result is, that we are left in doubt upon which side lies the truth. We have failed to find those clear fact of rights upon one side, and wrong upon the other, which are necessary to quicken into activity the powers of a Court of Equity. We forbear to pursue this inquiry, because the case presents another ground, free from doubt, upon which we prefer to rest our decision.

It was urged at hearing, as an insuperable objection to the relief prayed for, that the appellant has not established his right by an action at law. The objection was not taken by demurrer, or in the answer. In the Courts of the United States, it is regarded as jurisdictional, and may be enforced by the Court sua aponte, though not raised by the pleadings, nor suggested by counsel. 2 Cr., 419; 5 Pet., 496; 2 How., 383. The 16th section of the Judicial Act of 1789 provides, 'that suits in equity shall not be sustained in either of the Courts of the United States in any case where plain, adequate, and complete remedy can be had at law.' This is merely declaratory of the pre-existing rule, and does not apply where the remedy at law, is not 'plain, adequate, and complete,' or, in other words, where it is not 'as practical and as efficient to the ends of justice and to its prompt administration as the remedy in equity.' 3 Pet., 215. But where the remedy at law, is of this character, the party seeking redress must pursue it. In such case the adverse party has a constitutional right to a trial by jury. 19 How., 278.

The concurrent jurisdiction of Courts of Equity in cases of private nuisance, dates back to an early period in the growth of the English equity system. 1 Spence, 672. It has been greatly enlarged since the time of Lord Thurlow. 7 Vesey, 307, 308; 33 Cond. Eng. Ch. Rep. 236. It is now too firmly established to be shaken, but it is not without limitation. It is governed by the same principles which animate and control its action in other cases where its aid may be invoked against a wrongdoer.

Many cases of private nuisance will sustain an action at law which will not justify relief in equity. 16 Vesey, 338; Story's Eq. Jur., sec. 925.

A Court of Equity will interfere when the injury by the wrongful act of the adverse party will be irreparable, as where the loss of health, the loss of trade, the destruction of the means of subsistence, or the ruin of the property must ensue. 2 Swanst., 335; 16 Vesey, 342; 2 Ver., 646; 2 Bro. C. R., 64; 10 Vesey, 163; 6 Paige, 83; Wat. Eden, 659, note.

It will also give its aid to prevent oppressive and interminable ligitation, or a multiplicity of suits, or where the injury is of such a nature that it cannot be adequately compensated by damages at law, or is such, as from its continuance or permanent mischief, must occasion a constantly recurring grievance, which cannot be prevented otherwise than by an injunction. Mitf. Eq. Pl., by Jeremy, 144, 145; Jer., Eq. 300; 1 Dick. 163; 16 Ves., 342; 6 J. C. R., 46; 6 Paige, 83.

A diminution of the value of the premises without irreparable injury is no ground for interference. 2 Bro. C. C. 65; 16, Vesey, 342; 3 M. & K., 169.

Where an injunction is granted without a trial at law, it is usually upon the principle of preserving the property, until a trial at law can be had. A strong prima facie case of right must be shown, and there must have been no improper delay. The Court will consider all the circumstances and exercise a careful discretion. Cr. & Ph., 283.

Where an injunction in such a case has been granted, and the complainant fails to proceed with diligence in his action at law, the injunction will be dissolved. 4 M & C., 498.

A delay of three years or more has been frequently held to be such laches as will preclude a party from relief in equity until he has vindicated his right at law. 1 Cox, 102; 2 J. C. R., 379; 3 J. C. R., 282; 6 J. C. R., 19; 5 Met., 8.

The better opinion now is, that it is only a fact to be considered by the Chancellor, in connection with the other facts of the case, by which his discretion is to be guided. Wood vs. Sutcliff, (8 Eng. L. & E., 217); Sprague vs. Rhodes, (4 Rhode I., 304).

'Until the rights of the parties are settled at law, only a temporary injunction is issued, to prevent irreparable injury.' Irwin vs. Dixon, (9 How., 10).

This jurisdiction is applied only where the right is clearly established-where no adequate compensation can be made in damages, and where delay itself would be a wrong. 2 Swanst., 316; Angel on Wat. Courses, 475.

The case must be one 'of strong and imperious necessity, or the right must have been previously established at law.' 6 Barb. S.C.. R., 160; 7 Barb. S.C.. R., 400; 2 J. C. R., 164; 4 B. & C., 8; 37 New H., 254; 17 Maine, 202. The right must be clear and its violation palpable. 6 Barb. S.C.. R., 160.

If the evidence be conflicting and the injury doubtful, this extraordinary remedy will be withheld. 3 Paige, 210; 1 Cooper's Sel. Cas., 333; 3 M. & K., 169; 5 Met., 8; 9 Gill. & J., 668; 3 J. C. R., 282; 2 Barb. Ch. R., 282; 1 Dev. Eq. R., 12.

After the right has been established at law, a Court of Chancery will not, as of course, interpose by injunction. It will consider all the circumstances, the consequences of such action, and the real equity of the case. 4 Rhode I., 301; 8 E. L. & E., 217; 9 E. L. & E., 104; 18 Eng. Cond., Ch. R., 436.

The estate of the appellant in the water is an easement or servitude annexed to his land. As before stated, the excavation was made at the Weirs, and the Perley canal was deepened in 1846. The stone dam was erected in 1851. The appellant brought his bill on the 18th of September, 1855. During these intervening periods, according to his own showing, he slept upon his rights. 8 E. L. & E., 223. He does not allege either danger of irreparable injury, or of protracted litigation, or of a multiplicity of suits, as the ground upon which he seeks relief in equity. There is no warrant for such an averment. If he has been injured, his injury can be ascertained and fully repaired by damages in an action of law. A jury is the tribunal provided by law to determine the facts and to fix the amount, and they can best perform this duty. The fact that other proprietors have been paid bears upon this point. 8 E. L. & E., 222, 223. The appellant can have no standing in a Court of Equity until he has laid this foundation for relief. This objection is fatal to the case. We decide nothing else.

There are cases in which a Court of Equity will take jurisdiction and give a complete remedy without the previous intervention of a Court of Law. 6 Ves., 689; 1 McLean, 355; 39 New H., 186; 8 E. L. & E., 217; 4 Rhode I., 301; 4 M. & Cr., 433; 3 Hare, 593; 2 Coll., 431; 7 Hare, 221. But this case does not belong to that class.

The Circuit Court committed no error in dismissing the appellant's bill.

The decree below is affirmed, with costs.


text: Talk:Parker v. Winnipiseogee Lake Cotton and Woollen Company/Opinion of the Court


text:
Lindsey. v. Hawes.

Appeal from the Circuit Court of the United States for the Northern District of Illinois.

Mr. Grant, of Iowa, for Appellants.

Mr. Scates, of Illinois, for Appellees.

Mr. Justice MILLIER.

title: Lindsey. v. Hawes.


text: Talk:Lindsey. v. Hawes.

title: Talk:Lindsey. v. Hawes.