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Chicago and Northwestern Railway Company v. Whitton's Administrator/Opinion of the Court

[Syllabus from pages 270-272 intentionally omitted]

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

Henry Whitton, as administrator of the estate of his wife in Wisconsin, under letters of administration granted in that State, brought suit in 1866 in the of the State courts of Wisconsin to recover damages for the death of his wife; the same having been caused, as he alleged, by the carelessness and culpable mismanagement of the Chicago and Northwestern Railway Company.

The action was founded on a statute of Wisconsin, which provides that 'whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this State, and, in some court established by the constitution and laws of the same.'

The statute also provides that 'every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount recovered shall belong and be paid over to the husband or widow of such deceased person, if such relative survive him or her,' and that 'the jury may give such damages, not exceeding five thousand dollars, as they shall deem fair and just, in reference to the pecuniary injury resulting from such death, to the relatives of the deceased.'

Whilst the cause was pending in the State court, where it was originally brought, and after issue joined, Congress passed an act of March 2d, 1867, amending the act of July 27th, 1866, 'for the removal of causes in certain cases from State courts.' By this amendatory act it is provided that in suits then pending, or which might be subsequently brought in a State court, 'in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds the sum of $500, exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, if he will make and file in such State court an affidavit stating that he has reason to, and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court, may, at any time before the final hearing or trial of the suit, file a petition in such State court,' and have the suit removed to a Federal court.

Under this act the plaintiff, in September, 1868, petitioned the State court for the removal of the action to the Circuit Court of the United States for the District of Wisconsin, stating, in his petition, that he was at the time, and had been for the three previous years, a resident and citizen of the State of Illinois; that the defendant was a corporation organized under the laws of Wisconsin, and that the matter in dispute exceeded the sum of $500, exclusive of costs. The plaintiff also offered with his petition good and sufficient surety as required by the act of Congress, for entering in the Circuit Court at its next session, copies of all process, pleadings, depositions, testimony, and other proceedings in the action, and for doing such other appropriate acts as by the laws of the United States are required for the removal of a suit into the United States court. Accompanying this petition was the affidavit of the plaintiff that he had reasons to believe, and did believe, 'that, from prejudice and also from local influence,' he would not be also to obtain justice in the State court.

The petition was resisted upon affidavits that the defendant was a corporation created and existing under the laws of the States of Illinois, Wisconsin, and Michigan; that its line of railway was located and operated, in part in each of these States, and was thus located and operated at the commencement of the action; that its entire line of railway was managed and controlled by the defendant as a single corporation; that all its powers and franchises were exercised and its affairs managed and controlled by one board of directors and officers; that its principal office and place of business was at the city of Chicago, in the State of Illinois, and that there was no office for the control or management of the general business and affairs of the corporation in Wisconsin.

The local State court granted the petition, and ordered the removal of the action to the Federal court, but directed a stay of proceedings upon its order to enable the defendant to appeal from it to the Supreme Court of the State, and provided that, in case such appeal should be taken, all proceedings should be stayed until its determination.

The appeal was taken, and the order of removal was reversed by the Supreme Court. The reversal, as appears from the opinion of the court, was placed on the ground that the plaintiff, having the right originally to pursue his remedy either in a Federal or State court, had made his election of the State court, and had thus waived the right to demand the judgment of the Federal court upon the matter in controversy.

The plaintiff, however, did not regard the stay of proceedings or delay his action until the disposition of the appeal, but procured copies of the papers in the cause from the State court and filed them in the Circuit Court of the United States. The latter court thereupon took jurisdiction of the case and a new declaration was filed by the plaintiff.

In the meantime the defendant, upon affidavit of the stay upon the order of removal made by the State court and of the appeal from such order, moved the Circuit Court that the cause be dismissed from its calendar and the pleadings and proceedings be stricken from its files. But this motion the court denied, and thereupon the defendant filed a plea in abatement, setting forth an objection to the jurisdiction of the Federal court, founded upon the proviso to the statute of Wisconsin requiring the action for damages resulting from the death of a party to be brought in some court established by the constitution and laws of that State. A demurrer to this plea being sustained, the defendant filed a plea of the general issue. Subsequently, upon the reversal of the order of removal by the Supreme Court of the State, the defendant moved the Circuit Court to remand the cause to the State court, but the Circuit Court refused to relinquish its jurisdiction, and the motion was denied.

The case having accordingly come up for trial, the facts appeared to be these: The deceased died in December, 1864, from injuries received from a locomotive of the railroad company, defendant in the case, whilst she was endeavoring to cross its railway track, in Academy Street, in Janesville, Wisconsin. This street ran nearly north and south, and was crossed by four parallel railway tracks, lying near each other and running in a direction from northeast to southwest. Two of these-those on the northerly side-belonged to the Milwaukee and Prairie du Chien Railway Company; and the other two belonged to the defendant, the Chicago and Northwestern Railway Company. One Mrs. Woodward and a Mr. Rice were standing, together with Mrs. Whitton (the deceased), just previous to the accident, upon the cross-walk on the northerly side of the tracks, waiting for a freight train of the Milwaukee and Prairie du Chien Railway, then in motion, to pass eastwards, so that they might proceed down the street and over the tracks. The weather was at the time extemely cold, and a strong wind was blowing up the tracks from the southwest, and snow was falling. As soon as the freight train had passed, Rive crossed the tracks, moving at a brisk rate. In crossing, he states that he took a look at the tracks and that he neither saw nor heard any engine on the tracks of the defendant. Almost immediately after getting across, and before he had gone many steps, he heard a scream, and on turning around saw that the women-Mrs. Whitton and Mrs. Woodward-had been knocked down by a locomotive of the defendant. This locomotive was at the time backing down in a westerly direction-opposite to that taken by the freight train which had just passed-the tender coming first, then the engine drawing a single freight car. The persons in this locomotive did not appear to be aware of the injuries they had occasioned, and the locomotive continued on its course until their attention was called to the disaster by the efforts of Rice, when it was stopped. No person saw the locomotive strike the deceased, or noticed her conduct after Rice left her and started to cross the tracks. The injuries which both of the women received resulted in their death. Mrs. Woodward died soon afterwards, and Mrs. Whitton after lingering some weeks. There was much conflict of evidence upon the point whether the bell was rung on the locomotive as it backed down the track and approached Academy Street, so as to give warning to persons who might be on that street wishing to cross, and was kept ringing until the locomotive and tender crossed the street. Rice testified that he did not hear any bell or signal from this train, but that the bell of the freight train which had passed was ringing.

Among other witnesses, the surgeon who attended Mrs. Whitton was examined, and of him the question was asked whether she was pregnant at the time of the accident. To this question objection was taken by the defendants as improper and immaterial; but the objection was overruled and exception taken. The witness answered that she was. The evidence being closed, the defendant asked nineteen different instructions, which the court refused to give, except in so far as they were contained in the instructions whose substance is hereinafter mentioned and given of its own accord. Among the nineteen were these two:

'Under ordinary circumstances a person possessing the use of those faculties should use both eyes and ears to avoid injury in crossing a railway track; and if in this case the wind and noise of the freight train tended to prevent Mrs. Whitton from hearing the approach of defendant's engine, she was under the greater obligation to use her eyes. It was her duty to look carefully along the tracks of defendant's railway, both northwardly and southwardly, before attempting to cross them, and it was not sufficient excuse for failing to do so that the day was cold and windy, or that one train had just passed on the track nearer to her.

'It was the duty of Mrs. Whitton to look carefully along the tracks of defendant's railway to the north before putting herself in the way of danger, and in time to see and avoid any engine or train approaching from that direction. If necessary, in order to do this, it was her duty to pause before starting to cross until the freight train had so far passed as to give a sufficient view to determine whether she could safely cross; and if she failed to look carefully along these tracks to the north, after the freight train had so far passed as to give her such a view, and in time to have seen and avoided defendant's engine, the plaintiff cannot recover.'

The plaintiff asked three instructions, which were refused in the same way.

'1. Whether Mrs. Whitton's death was caused by the negligence of those who had the management of the train; and,

'2. Was Mrs. Whitton herself guilty of any fault or negligence which contributed to that result.'

As to the negligence of the defendant, the court, in substance, instructed the jury that it was the duty of those having the management of the train to cause the bell of the engine to be rung a sufficient time, before crossing Academy Street, to give warning to any passengers on that street desirous of crossing, and to keep it ringing till the tender had crossed the street; and also that it was the duty of those having the management of the train to keep a proper and a vigilant lookout in the direction the train was moving, particularly under the circumstances of the case-a freight train going up one of the tracks in an opposite direction, the train in question just approaching a much frequented street, and a violent southwest wind blowing at the time, and that there was a peculiar vigilance incumbent on those who had the management of the train, to ring their bell and keep a proper lookout, because it was natural, if there were any persons standing at that crossing (a freight train passing along at the time), that they would seek to cross the track after the freight train had gone over the street.

As to the negligence of Mrs. Whitton, the court, in substance, instructed the jury that she was required to exercise that degree of prudence, care, and caution incumbent on a person possessing ordinary reason and intelligence, under the special circumstances of the case, having regard to the fact of its being a railroad crossing, and another train crossing the street, for which she had to wait in company with Mrs. Woodward, and that she must have used ordinary care, prudence, and caution.

The court declined to say to the jury how she must dispose of her limbs, her eyes, or her ears, but left it to the jury to find whether she had been guilty of any fault or negligence which contributed to her death; and instructed them that if she had, that the plaintiff could not recover, even if the defendant had been guilty of negligence.

The court also told the jury, before they could find a verdict against the defendant, they must be satisfied its employees were guilty of negligence, and that such negligence caused her death.

'Those damages have been specified by the statute, but in very general terms:

"The jury may give such damages, not exceeding $5000, as they shall deem fair and just, in reference to the pecuniary injury resulting from such death, to the relatives of the deceased specified in this section.'

'As we understand, that means that if the plaintiff is entitled to recover at all in this case, he is entitled to recover for damages for such pecuniary injury as has resulted to him from the death of his wife. It is confined by the language of the statute to pecuniary loss, not the loss arising from grief or wounded feelings, or sufferings of any kind, but such pecuniary loss as he has sustained from the death of his wife; it is from her death, not from any loss which he sustained prior to that, but for the pecuniary loss which he has sustained from her death. It is almost impossible to lay down any absolute, fixed rule upon this subject. This question has been recently discussed by the Supreme Court of the United States upon a statute which in this respect is essentially the same as the statute of this State; and the Supreme Court has said that it is a matter largely resting with the sound reason and discretion of the jury. Taking all the facts and circumstances into consideration, you may consider the personal qualities, the ability to be useful of the party who has met with death, and, of course, also the capacity to earn money. It is not proper for the jury to look upon it simply as a question of feeling or sympathy. The statute does not permit that; all such considerations should be dismissed from your minds. It is a mere matter of dollars and cents-so regarded by the statute-pecuniary injury sustained.'

The jury found $5000 for the plaintiff, and a motion for a new trial being refused, after a full consideration of the objections made by the defendants, for which refusal the court gave its reasons fully, the judgment was entered on the verdict. To reverse that judgment the defendant brought the case here.

Mr. T. A. Howe, for the plaintiff in error:

I. This court never acquired jurisdiction of this case, because it was excluded by the character of the parties. The suit must be regarded as between a citizen of Illinois, as plaintiff, and citizens of that State and of the State of Wisconsin joined as defendants. Now, in Ohio and Mississippi Railway Co. v. Wheeler, a railway company, having like charters from the States of Ohio and Indiana, sued a citizen of the latter State, and this court held that the suit must be regarded as by citizens of Ohio and Indiana against a citizen of the latter State, and hence not within the jurisdiction of the National courts. In The County of Allegheny v. Railway Company, Allegheny County, Pennsylvania, sued a railway company which was first chartered by Ohio and afterwards by Pennsylvania. The company presented a petition, alleging itself a corporation of Ohio, and asking a removal of the suit into the United States Circuit Court. The application was denied, because a suit against such a corporation was a suit against citizens of Ohio and Pennsylvania united in business under the shadow of the corporate name, and because, therefore, the United States courts had no jurisdiction. The disability must affect both parties alike.

II. There is no law authorizing the maintenance of this action in any National court. The right to sue at all in this case exists by the statute of Wisconsin only. But that right is given only on a condition precedent; the condition, namely, that the suit be brought in a Wisconsin court.

It may be argued on the other side that the legislature had no power to confer a conditional right. If this be so, it is one instance where the greater power does not include the lesser. It is a strange proposition which says to the legislatures of the States: 'You have the power to confer new absolute rights of action, but when you attempt to create a limited right, to annex a condition to the gratuity you offer, your power is exceeded. The condition is void, and the conditional right becomes an absolute one.' The only argument which can be made in support of such a curtailment of legislative power will have to be this: 'The Constitution of the United States extends the judicial power to controversies between citizens of different States. This is such a controversy. Congress may, therefore, confer upon the National courts jurisdiction over it and authorize the plaintiff to invoke that jurisdiction, hence this clause, restricting the remedy to the State courts, is unconstitutional and void.' But to make this position of value it must appear that the Constitution extends the judicial power to this controversy, or that Congress is authorized to and has extended it to such actions. Now the language of the Constitution is peculiar. It says:

'The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors; to all cases of admiralty and maritime jurisdiction;. . . to controversies. . . between citizens of different States.'

It is thus obvious that the Constitution does not extend the judicial power to all controversies between citizens of different States.

The condition in the Wisconsin statute is not therefore necessarily in conflict with the Constitution. If it be said that this provision commits it to the discretion of Congress, to extend the judicial power to any or all of this class of controversies, and that Congress has extended it to this controversy, the answer is that if such a discretion is vested in Congress, it is not conferred in express terms, nor does the language used justify such an implication. So to construe it, would, in effect, interpolate the word all where it has been intentionally omitted.

But if the clause in the Wisconsin statute be invalid, then the whole statute must fall, and of course with it the sole authority for maintaining this action. If the provisions of a statute are so mutually connected with each other as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them.

A proviso in deeds, or laws, is a limitation or exception to a grant made, or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.

Both the propositions thus stated are well-settled rules.

III. The act of March 2d, 1867, by authority of which this case was removed from the State court, is unconstitutional and void.

In Martin v. Hunter, where the validity of the 25th section of the Judiciary Act was in question, it was argued at bar, that the right of removal before judgment was undoubted; that it subserved all the reasons suggested in support of the appellate jurisdiction over causes tried in the State courts, and hence that there was no good reason for sustaining such a jurisdiction. But in combating this position Story, J., argued in the most deliberate way that the removal of actions was an exercise of appellate jurisdiction; that appellate jurisdiction may be exercised either before or after judgment, and, therefore, that the right to remove a case for revision, and the right to remove it for original action upon the subject-matter, rested upon the same foundation, and would stand or fall together. In reasoning to this conclusion he says:

'The power of removal is certainly not in strictness of language an exercise of original jurisdiction; it presupposes jurisdiction to have elsewhere attached.'

But it is a misapplication of terms to style that an exercise of appellate jurisdiction which wrenches a case from one court of original concurrent jurisdiction, and takes it into another, for original action upon the subject-matter. Nor has it ever been supposed that the Circuit Courts of the United States have any appellate jurisdiction over the proceedings of State courts. And the reason upon which the theory of Story, J., is founded is as erroneous as the theory itself. He argues that the power of removal is not an exercise of original jurisdiction, because 'it presupposes an exercise of original jurisdiction to have elsewhere attached.' Take, then, for illustration controversies between citizens of different States. The judicial power of the United States was extended to this class of controversies, for the supposed advantage of such citizens, and hence it is assumed that a defendant in such a controversy had the same right as a plaintiff, to insist that it be tried in the National tribunals. This being so, it follows that the jurisdiction of the State court does not fully attach, until he has waived this right. If he does not waive it, but objects to the proffered jurisdiction of the State court, it never attaches at all, and when the jurisdiction of the National court does attach, it is in strictness an original jurisdiction.

IV. The evidence of pregnancy was immaterial, and calculated to excite the sympathy and prejudice of the jury, and should have been excluded.

V. The charge did not state the law rightly; but should among other things have said that the deceased was bound to use her eyes and ears in the manner stated in the request.

Mr. J. A. Sleeper, contra.

Mr. Justice FIELD, having stated the case, delivered the opinion of the court as follows:

The jurisdiction of the action by the Federal court is denied on three grounds: the character of the parties as supposed citizens of the same State; the limitation to the State court of the remedy given by the statute of Wisconsin; and the alleged invalidity of the act of Congress of March 2d, 1867, under which the removal from the State court was made.

First, as to the character of the parties. The plaintiff is a citizen of the State of Illinois and the defendant is a corporation created under the laws of Wisconsin. Although a corporation, being an artificial body created by legislative power is not a citizen within several provisions of the Constitution; yet it has been held, and that must now be regarded as settled law, that, where rights of action are to be enforced, it will be considered as a citizen of the State where it was created, within the clause extending the judicial power of the United States to controversies between citizens of different States. The defendant, therefore, must be regarded for the purposes of this action as a citizen of Wisconsin. But it is said, and here the objection to the jurisdiction arises, that the defendant is also a corporation under the laws of Illinois, and, therefore, is also a citizen of the same State with the plaintiff. The answer to this position is obvious. In Wisconsin the laws of Illinois have no operation. The defendant is a corporation, and as such a citizen of Wisconsin by the laws of that State. It is not there a corporation or a citizen of any other State. Being there sued it can only be brought into court as a citizen of that State, whatever its status or citizenship may be elsewhere. Nor is there anything against this view, but, on the contrary, much to support it, in the case of The Ohio and Mississippi Railroad Company v. Wheeler. In that case the declaration averred that the plaintiffs were a corporation created by the laws of the States of Indiana and Ohio, and that the defendant was a citizen of Indiana, and the court, after referring to previous decisions, said that it must be regarded as settled that a suit by or against a corporation in its corporate name is a suit by or against citizens of the State which created it, and therefore that case must be treated as a suit in which citizens of Ohio and Indiana were joined as plaintiffs against a citizen of the latter State, and of course could not be maintained in a court of the United States where jurisdiction of the case depended upon the citizenship of the parties. The court also observed that though a corporation by the name and style of the plaintiffs in that case appeared to have been chartered by the States of Ohio and Indiana, clothed with the same capacities and powers, and intended to accomplish the same objects, and was spoken of in the laws of the States as one corporate body, exercising the same powers and fulfilling the same duties in both States, yet it had no legal existence in either State except by the law of that State; that neither State could confer on it a corporate existence in the other nor add to or diminish the powers to be there exercised, and that though composed of and representing under the corporate name the same natural persons, its legal entity, which existed by force of law, could have no existence beyond the territory of the State or sovereignty which brought it into life and endowed it with its faculties and powers.

The correctness of this view is also confirmed by the recent decision of this court in the case of The Railroad Company v. Harris. In that case a Maryland railroad corporation was empowered by the legislature of Virginia to construct its road through that State, and by an act of Congress to extend a lateral road into the District of Columbia. By the act of Virginia the company was granted the same rights and privileges in that State which it possessed in Maryland, and it was made subject to similar pains, penalties, and obligations. By the act of Congress the company was authorized to exercise in the District of Columbia the same powers, rights, and privileges in the extension and construction of the road, as in the construction and extension of any railroad in Maryland, and was granted the same rights, benefits, and immunities in the use of the road which were provided in its charter, except the right to construct from its road another lateral road. And this court held that these acts did not create a new corporation either in Virginia or the District of Columbia, but only enabled the Maryland corporation to exercise its faculties in that State and District. They did not alter the citizenship of the corporation in Maryland, but only enlarged the sphere of its operations and made it subject to suit in Virginia and in the District. The corporation, said the court, 'cannot migrate, but may exercise its authority in a foreign territory upon such conditions as may be prescribed by the law of the place. One of these conditions may be that it shall consent to be sued there. If it do business there it will be presumed to have assented, and will be bound accordingly. For the purposes of Federal jurisdiction it is regarded as if it were a citizen of the State where it was created, and no averment or proof as to the citizenship of its members elsewhere will be permitted.'

Second; as to the limitation to the State court of the remedy given by the statute of Wisconsin. That statute, after declaring a liability by a person or a corporation to an action for damages when death ensues from a wrongful act, neglect, or default of such person or corporation, contains a proviso 'that such action shall be brought for a death caused in this State, and, in some court established by the constitution and laws of the same.' This proviso is considered by the counsel of the defendant as in the nature of a condition, upon a compliance with which the remedy given by the statute can only be enforced.

It is undoubtedly true that the right of action exists only in virtue of the statute, and only in cases where the death was caused within the State. The liability of the party, whether a natural or an artificial person, extends only to cases where, from certain causes, death ensues within the limits of the State. But when death does thus ensue from any of those causes the relatives of the deceased named in the statute can maintain an action for damages. The liability within the conditions specified extends to all parties through whose wrongful acts, neglect, or default death ensues, and the right of action for damages occasioned thereby is possessed by all persons within the description designated. In all cases, where a general right is thus conferred, it can be enforced in any Federal court within the State having jurisdiction of the parties. It cannot be withdrawn from the cognizance of such Federal court by any provision of State legislation that it shall only be enforced in a State court. The statutes of nearly every State provide for the institution of numerous suits, such as for partition, foreclosure, and the recovery of real property in particular courts and in the counties where the land is situated, yet it never has been pretended that limitations of this character could affect, in any respect, the jurisdiction of the Federal court over such suits where the citizenship of one of the parties was otherwise sufficient. Whenever a general rule as to property or personal rights, or injuries to either, is established by State legislation, its enforcement by a Federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to State limitation.

This doctrine has been asserted in several cases by this court. In Suydam v. Broadnax, an act of the legislature of Alabama provided that the estate of a deceased person, declared to be insolvent, should be distributed by the executors or administrators according to the provisions of the act, and that no suit or action should be commenced or sustained against any executor or administrator after the estate had been declared to be insolvent, except in certain cases; but this court held, in a case not thus excepted, that the insolvency of the estate, judicially declared under the act, was not sufficient in law to abate a suit instituted in the Circuit Court of the United States by a citizen of another State against the representatives of a citizen of Alabama. 'The 11th section of the act to establish the judicial courts of the United States,' said the court, 'carries out the constitutional right of a citizen of one State to sue a citizen of another State in the Circuit Court of the United States, and gives to the Circuit Court 'original cognizance concurrent with the courts of the several States of all suits of a civil nature at common law and in equity,' &c., &c. It was certainly intended to give to suitors, having a right to sue in the Circuit Court, remedies coextensive with these rights. These remedies would not be so if any proceedings under an act of a State legislature, to which a plaintiff was not a party, exempting a person of such State from suit, could be pleaded to abate a suit in the Circuit Court.'

In The Union Bank of Tennessee v. Jolly's Administrators, this court declared that the law of a State 'limiting the remedies of its citizens in its own courts cannot be applied to prevent the citizens of other States from suing in the courts of the United States in that State for the recovery of any property or money there to which they may be legally or equitably entitled.' The same doctrine was affirmed in Hude v. Stone, and in Payme v. Hook.

Third; as to the alleged invalidity of the act of March 2d, 1867, under which the removal from the State court was made. The counsel of the defendant, whilst confining his special objection to this act, questions the soundness of the reasoning of Mr. Justice Story, by which any legislation for the removal of causes from a State court to a Federal court is maintained. We may doubt, with counsel, whether such removal before issue or trial can properly be called an exercise of appellate jurisdiction. It may, we think, more properly be regarded as an indirect mode by which the Federal court acquires original jurisdiction of the causes. But it is not material whether the reasoning of the distinguished jurist in this particular is correct or otherwise. The validity of such legislation has been uniformly recognized by this court since the passage of the Judiciary Act of 1789.

The judicial power of the United States extends by the Constitution to controversies between citizens of different States as well as to cases arising under the Constitution, treaties, and laws of the United States, and the manner and conditions upon which that power shall be exercised, except as the original or appellate character of the jurisdiction is specially designated in the Constitution, are mere matters of legislative discretion. In some cases, from their character, the judicial power is necessarily exclusive of all State authority; in other cases it may be made so at the option of Congress, or it may be exercised concurrently with that of the States. Such was the opinion of Mr. Justice Story, as expressed in Martin v. Hunter's Lessee, and this conclusion was adopted and approved by this court in the recent case of The Moses Taylor. The legislation of Congress has proceeded upon the correctness of this position in the distribution of jurisdiction to the Federal courts. The Judiciary Act of 1789, as observed in the case of The Moses Taylor, declares, 'that in some cases from their commencement such jurisdiction shall be exclusive; in other cases it determines at what stage of procedure such jurisdiction shall attach, and how long and how far concurrent jurisdiction of the State courts shall be permitted. Thus, cases in which the United States are parties, civil causes of admiralty and maritime jurisdiction, and cases against consuls and vice-consuls, except for certain offences, are placed from their commencement exclusively under the cognizance of the Federal courts. On the other hand, some cases in which an alien or a citizen of another State is made a party may be brought either in a Federal or a State court, at the option of the plaintiff, and if brought in the State court may be prosecuted until the appearance of the defendant, and then at his option may be suffered to remain there or may be transferred to the jurisdiction of the Federal courts. Other cases, not included under these heads but involving questions under the Constitution, laws, treaties, or authority of the United States, are only drawn within the control of the Federal courts upon appeal or writ of error after final judgment. By subsequent legislation of Congress, and particularly by the legislation of the last four years, many of the cases which by the Judiciary Act could only come under the cognizance of the Federal courts after final judgment in the State courts, may be withdrawn from the concurrent jurisdiction of the latter courts at earlier stages, upon the application of the defendant. The constitutionality of these provisions cannot be seriously questioned and is of frequent recognition by both State and Federal courts.'

When the jurisdiction of the Federal court depended upon the citizenship of the parties, the case could not be withdrawn from the State courts after suit commenced until the passage of the act of 1867, except upon the application of the defendant. The provision of the Constitution extending the judicial power of the United States to controversies between citizens of different States had its existence in the impression, that State attachments and State prejudices might affect injuriously the regular administration of justice in the State courts. The protection intended against these influences to non-residents of a State was originally supposed to have been sufficiently secured by giving to the plaintiff in the first instance an election of courts before suit brought; and where the suit was commenced in a State court a like election to the defendant afterwards. The time at which the non-resident party should be allowed thus to make his election was evidently a mere matter of legislative discretion, a simple question of expediency. If Congress has subsequently become satisfied, that where a plaintiff discovers, after suit brought in a State court, that the prejudice and local influence, against which the Constitution intended to guard, are such as are likely to prevent him from obtaining justice he ought to be permitted to remove his case into a National court, it is not perceived that any constitutional objection exists to its authorizing the removal, and, of course, to prescribing the conditions upon which the removal shall be allowed.

It follows, from the views we have expressed, that the objection to the jurisdiction of this action by the Circuit Court, upon the grounds advanced by the defendant, cannot be maintained.

It only remains to say a few words upon the refusal of the court to give the instructions prayed by the defendant, and upon its ruling in the admission of certain evidence, and its charge to the jury.

The facts of the case are very few, and with respect to most of them there was little conflict of evidence. [The learned justice here stated the facts of the case, and continued:]

Upon these facts the court gave to the jury a clear and full charge upon the duties and responsibilities of the railroad company in crossing the street of the city, with its engines and trains, and upon the care, prudence, and caution which it was incumbent upon the deceased to exercise in crossing the tracks; and as to the damages which the jury were authorized to find, in case they were satisfied that the employees of the company had been guilty of negligence, and that such negligence had caused the death of the deceased.

The counsel of the plaintiff had requested three special instructions to the jury, and the counsel of the defendant had requested nineteen special instructions. The court, however, declined to give any of them except as they were embraced in its general charge. Some of the instructions prayed by the defendant presented the law respecting the liability of the company correctly, and some of them were based upon an assumed condition of things which the evidence did not warrant. But it is not error for a court to refuse to give an extended series of instructions, even though some of them may be correct in the propositions of law which they present, if the law arising upon the evidence is given by the court with such fulness as to guide correctly the jury in its findings, as was the case here; nor is a judgment to be set aside because the charge of the court may be open to some verbal criticisms, in particulars considered apart by themselves, which could not when taken with the rest of the charge have misled a jury of ordinary intelligence. The propriety of the rulings of the court in this case is fully vindicated in its opinion on the motion for a new trial.

The evidence of the condition of the deceased-that she was enceinte at the time of the accident-could not materially have affected the jury in the estimation of the damages, after the clear and explicit charge of the court, as to the character of the damages which only they were authorized to consider.

The other evidence in the case, to the admission of which objection was taken, was not material, and could not have influenced the result.

JUDGMENT AFFIRMED.


text: Talk:Chicago and Northwestern Railway Company v. Whitton's Administrator/Opinion of the Court

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


text:
Myers v. Croft

ERROR to the Circuit Court for the District of Nebraska; the case being thus:

An act of Congress entitled 'An act to appropriate the proceeds of the sales of the public lands, and to grant preemption rights,' approved September 4th, 1841, after prescribing the manner in which the proof of settlement and improvement shall be made before the land is entered, has this proviso: 'and all assignments and transfers of the right hereby secured prior to the issuing of the patent shall be null and void.'

Under and by virtue of this act, one Fraily, on the 3d of September, 1857, entered a quarter-section of land in Nebraska, at the land office for the Omaha land district, with the register thereof.

On the same 3d of September, 1857-no letters patent having as yet issued to him-in consideration of $36,000, as appeared on the face of the deed, he conveyed by a warrantee deed the premises to 'The Sulphur Springs Land Company;' the company being not otherwise described in the instrument, and there being nothing in the instrument or in other proof to show whether the said grantee was a corporation and capable of taking land or an unincorporated company.

On the 1st of May, 1860-more than two years after the date of the deed above mentioned-Fraily made another deed, for the sum, as appeared by the instrument, of $6000, to a certain Myers.

In this state of things Myers sued Croft, who was in under the company, in ejectment, to try the title to the land. And the deed to 'The Sulphur Springs Land Company' being in evidence on the part of the defendant, the plaintiff moved the court to rule it from the jury, for the reasons:

1st. That he had not shown that the Sulphur Springs Land Company was an organization capable of receiving the conveyance of land; and,2d. That under the provisions of the act of Congress, already quoted, the deed was void.

The court overruled the motion, charging contrariwise, that the deed was valid and passed the title to the premises. To this ruling and charge the plaintiff excepted, and judgment having been given for the defendant the case was now here.

Messrs. N. Cobb and L. Douglass, for the plaintiff in error:

1st. Although the Sulphur Springs Land Company, as we may here admit, was in fact incorporated, the fact nowhere appears in proof. Being a chartered company it was incumbent on the defendant to show the terms of the charter, and that by them the company could take the lands.

If not a corporation, the deed was void for want of certainty in the name of the grantee.

2d. Does the 12th section of the act of Congress of September 4th, 1841, intend to prohibit the pre-emptor from all alienation of the property which he has acquired under the pre-emption act prior to the issuing of the patent, or does it intend simply to prevent the transfer of the right to preempt?

The former view is the one best sustained by the statute. That is the way it reads; and when a statute is plain, it should not be frittered away by refinements. Until payment made for the land and certificate of purchase procured the pre-emptor has nothing which he can assign. If after certificate of purchase was obtained, there was intended to be no restriction on the sale of the land by the pre-emptor, why did the act use the words 'prior to the issuing of the patent?'

The other view is, that the right secured is the right to pre-empt: and that this right is fully secured when the purchase is made of the United States. The right thus preferably to purchase cannot be transferred, and it is this alone (it may be argued) which is prohibited. If so, why did the statute use the words 'prior to the issuing of the patent,' instead of prior to the issuing of the certificate? Congress knew the difference between a certificate of purchase and a patent. They are different instruments and subserve a different purpose. The certificate shows that the party has entered the land land is entitled to a patent at some future time; the patent transfers the title.

According to the course of business ordinarily, patents do not issue for years after the entry is made. This case proves that fact, and it is not unreasonable to suppose Congress was apprised of that fact.

The view we take of this law best accords with the policy of the pre-emption privilege. The object of the government was, in fact, to induce settlements upon the public lands, but chiefly to confer the preferable right to purchase on those persons, usually in indigent circumstances, who actually settled or improved them. It was not to aid the speculator in lands.

Pre-emptions for purposes of speculations will be less likely to be made if the pre-emptor is obliged to wait until the patent issues before he can alienate.

There was a similar provision in the act of 29th May, 1830. The language of the two acts is almost literally the same. By the act of January 23d, 1832, the prohibition as to assignment and transfers of the right of pre-emption contained in the act of 1830 is removed, and it is provided that 'all persons who have purchased lands under the act of May 29th, 1830, may assign and transfer their certificates of purchase or final receipts, and patents may issue in the name of such assignee, anything in the act aforesaid to the contrary notwithstanding.' This shows that it was understood by Congress as restricting alienations by the pre-emptor, after payment and before patent issued. The effect of allowing such transfers was such that Congress, in passing the carefully-framed act of September 4th, 1841, renewed the prohibition against transfers which was contained in the act of 1830. The government had witnessed the practical effect of both policies, and the judgment of Congress as embodied in the latter act as to which is the better policy should be respected by the courts, and the language of the statute should be allowed its fair and natural meaning.

Though the point has never been before this court, it has frequently been before the State courts, and they have with great uniformity held that the pre-emptor had no transferable interest prior to the issuing of the patent.

Mr. Justice DAVIS delivered the opinion of the court.

title: Myers v. Croft


text: Talk:Myers v. Croft

title: Talk:Myers v. Croft


text:
Myers v. Croft/Opinion of the Court

In relation to the first objection-that the Sulphur Springs Land Company was not a competent grantee to receive the title-it is sufficient to say, in the absence of any proof whatever on the subject, that it will be presumed the land company was capable, in law, to take a conveyance of real estate. Besides, neither Fraily, who made the deed, nor Myers, who claims under him, is in a position to question the capacity of the company to take the title after it has paid to Fraily full value for the property.

The other objection is of a more serious character, and depends for its solution upon the construction to be given the last clause of the 12th section of the act of Congress of September 4th, 1841. The act itself is one of a series of pre-emption laws conferring upon the actual settler upon a quarter section of public land the privilege (enjoyed by no one else) of purchasing it, on complying with certain prescribed conditions. It had been the well-defined policy of Congress, in passing these laws, not to allow their benefit to enure to the profit of land speculators, but this wise policy was often defeated. Experience had proved that designing persons, being unable to purchase valuable lands, on account of their withdrawal from sale, would procure middle men to occupy them temporarily, with indifferent improvements, under an agreement to convey them so soon as they were entered by virtue of their pre-emption rights. When this was done, and the speculation accomplished, the lands were abandoned.

This was felt to be a serious evil, and Congress, in the law under consideration, undertook to remedy it by requiring of the applicant for a pre-emption, before he was allowed to enter the land on which he had settled, to swear that he had not contracted it away, nor settled upon it to sell it on speculation, but, in good faith, to appropriate it to his own use. In case of false swearing the pre-emptor was subject to a prosecution for perjury, and forfeited the money he had paid for the land; and any grant or conveyance made by him before the entry was declared null and void, with an exception in favor of bon a fide purchasers for a valuable consideration. It is contended by the plaintiff in error that Congress went further in this direction, and imposed also a restriction upon the power of alienation after the entry, and the last clause in the 12th section of the act is cited to support the position.

This section, after prescribing the manner in which the proof of settlement and improvement shall be made before the land is entered, has this proviso: 'and all assignments and transfers of the right hereby secured prior to the issuing of the patent shall be null and void.'

The inquiry is, what did the legislature intend by this prohibition? Did it mean to disqualify the pre-emptor who had entered the land from selling it at all until he had obtained his patent, or did the disability extend only to the assignment of the pre-emption right? Looking at the language employed, as well as the policy of Congress on the subject, it would seem that the interdiction was intended to apply to the right secured by the act, and did not go further. This was the right to pre-empt a quarter section of land by settling upon and improving it, at the minimum price, no matter what its value might be when the time limited for perfecting the pre-emption expired. This right was valuable, and independently of the legislation of Congress assignable. The object of Congress was attained when the pre-emptor went, with clean hands, to the land office and proved up his right, and paid the government for his land. Restriction upon the power of alienation after this would injure the pre-emptor, and could serve no important purpose of public policy. It is well known that patents do not issue in the usual course of business in the General Land Office until several years after the certificate of entry is given, and equally well known that nearly all the valuable lands in the new States, admitted since 1841, have been taken up under the pre-emption laws, and the right to sell them freely exercised after the claim was proved up, the land paid for, and the certificate of entry received. In view of these facts we cannot suppose, in the absence of an express declaration to that effect, that Congress intended to tie up these lands in the hands of the original owners, until the government should choose to issue the patent.

If it had been the purpose of Congress to attain the object contended for, it would have declared the lands themselves unalienable until the patent was granted. Instead of this, the legislation was directed against the assignment or transfer of the right secured by the act, which was the right of pre-emption, leaving the pre-emptor free to sell his land after the entry, if at that time he was, in good faith, the owner of the land, and had done nothing inconsistent with the provisions of the law on the subject.

JUDGMENT AFFIRMED.

title: Myers v. Croft/Opinion of the Court


text: Talk:Myers v. Croft/Opinion of the Court


text:
Page:Copyright, Its History And Its Law (1912).djvu/193

 Unfortunately, the precedent of our copyright act of 1891 has since been followed in England in the patent and designs act of 1907, which provides (sec. 27) that a patent may be revoked after four years "on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the United Kingdom." Such a provision had been a feature of the patent laws of Germany, Canada and other countries, but it is new in British law and has evoked strong protest from American patentees, notwithstanding that it is parallel with our manufacturing provision with respect to copyrights.


text:
Pendleton County v. Amy

ERROR to the Circuit Court for the District of Kentucky.

Amy brought suit in April, 1869, against the county of Pendleton, in Kentucky, to recover the aggregate amount of certain coupons or interest warrants attached to fifty bonds of $1000 each. The bonds were dated October 15th, 1853, payable thirty years after date, and were alleged in the declaration to have been made and issued by the county of Pendleton in virtue of authority conferred by the legislature of the State. The declaration averred the execution of the bonds with interest warrants attached to each, payable to the bearer semiannually on the 15th days of April and October of every year, and also that they had been delivered to the Covington and Lexington Railroad Company in payment of a subscription made by the county to the capital stock of the company, under authority given by acts of the legislature. It further averred that the bonds were received by the railroad company, and that a certificate for the shares of stock subscribed, as aforesaid, was issued to the county, and was received by it, and that it was still owned by the county; and further, that the bonds were afterwards sold by the rail road company for $50,000, and delivered to the purchasers with the coupons attached; that the plaintiff subsequently became the owner, holder, and bearer of them all, and that from the 15th day of October, 1864, inclusive, until the commencement of the suit the county had neglected and refused to pay the coupons, though often requested to pay them.

To the cause of action thus set forth the defendant pleaded four pleas:

1st. That the plaintiff was not, at the time of filing his declaration, or at the time of entering the plea, the owner, holder, or bearer of the said alleged bonds and coupons, or of any or either of them, as in the declaration mentioned.

2d. That at the time of filing the declaration and plea the bonds and coupons were all the property of one Augustus Robins, a citizen of the State of Kentucky, and not then or now the property of any other person.

3d. That although the legislature, by one act, empowered the county to subscribe to the stock of the company, and to borrow money to pay the subscription, yet the authority was coupled with a proviso that the real estate holders residing in the county should so vote, by a majority, at such times as the county court might appoint, and that 'the question of subscribing stock, or of borrowing money to pay the same, never was submitted to the real estate holders residing in the county of Pendleton, to be determined by vote of a majority of them, as authorized and required by the act, before any stock had been subscribed to or for said county, or any money borrowed to pay the same.' The plea then averred that subsequent acts of the legislature (enacted before the subscription was made) which authorized the levy of a tax for the purpose of paying the subscriptions to the stock of the said company, also provided that before a subscription should be made and a tax levied, the question of levying the tax should be submitted to the voters of the county, and if a majority of the votes cast should be in favor of the tax, it should be levied, and the subscription should be made; and the plea denied that the question whether the tax or the subscription authorized by these acts, or whether any tax for payment of a subscription of stock in said company should be imposed in the county, had ever been submitted to, or voted upon, by the voters of Pendleton County in conformity with said acts. The plea further averred that no other acts of the legislature authorized the county, or any one for it, to subscribe stock for it in said company, or to levy a tax for payment, or to borrow money, or to issue bonds and coupons for the payment of any subscriptions of stock therein.

4th. That the county did not sign, seal, or deliver the bonds and coupons to the railroad company, or to any person or corporation, as in the declaration alleged, nor authorize any one to do so; 'and so the defendant says that the alleged acts and coupons are not its acts and deeds.'

To all these pleas there were general demurrers; and these demurrers being sustained and judgment given for the plaintiff, the county brought the case here.

Mr. B. H. Bristow, for the plaintiff in error:

1. The first plea shows that Amy was not at any time the owner, holder, or bearer of any of the bonds or coupons. If he was not, he had no right to sue. He might have made out a prim a facie case by producing the bonds and coupons; but it was not impossible for the county to overturn the prim a facie case, and the opportunity ought to have been allowed on a trial of the issue.

2. The second plea showed that a citizen of Kentucky was the owner, which the county of Pendleton was ready to verify. This plea ought to have been denied by Amy, because, if the plea was true, he had no right to sue.

3. The third plea, though containing some formal defects, constituted nevertheless a good defence; for, admitting the facts alleged in it to be true, it showed an entire want of authority in the County Court to issue the bonds and coupons, and consequently the absence of liability to pay. The authority of the County Court to borrow money, as is apparent from the matter pleaded, depended on a condition precedent, to wit, that the question of subscribing to the stock and of levying a tax had been submitted to the voters of the county for their determination. Now, the plea avers, and the demurrer admits, that the question of subscribing, &c., was never submitted to a vote. So that the fact established by the pleadings is, not the irregular execution of a power already possessed, but the non-existence of the power itself.

4. The fourth plea is a special plea amounting to the general issue, and though bad in form is good in substance.

Mr. J. W. Stevenson, contra:

1 and 2. By the first and second pleas, that which is mere matter in abatement is relied on in bar. The pleas do not dispute the making and delivery of the bonds and coupons, or that they are binding upon the county, or that they are due or unpaid, or that a cause of action exists against the county on them, but simply asserts that the action is not brought in the name of the proper party.

Both pleas tender issues upon non-issuable points. The declaration sets forth that the bonds and coupons were payable to the bearer. The pleas do not dispute this. Therefore the bearer has the right to sue. The bonds and coupons being specialties, the proper method of trying the question whether the plaintiff was the bearer or not was to crave oyer. This would have settled the question by requiring the plaintiff to produce them to the view of the court and of the defendant. If it is said no profert was made, then the proper course was to demur for want of profert.

The second plea is bad, for the further reason that it simply sets forth that the coupons are the property of one Robins; whereas the undertaking as set forth in the declaration was to pay the bearer of the coupons, and not the person in whom the right of property might be vested. It does not deny that the plaintiff is the bearer of them, or assert that his holding is tortious.

3. The third plea sets forth matter that is immaterial to the case made by the declaration. The declaration sets forth that the defendant made the fifty bonds, that by the terms of each bond it agreed to pay the bearer $1000, with interest payable semiannually, for which coupons payable to bearer were attached; that it, in fact, subscribed $50,000 to the capital stock of this railroad company, and tendered these bonds in payment of it, and they were received in full payment of the subscription, and that the company immediately sold the bonds for $50,000, which it used in constructing the road, and that the plaintiff has since become the owner and bearer of them.

The plea does not traverse any one of the facts set out in the declaration. Nor does it set forth any case that amounts to an avoidance of them. The county admits that it made the bonds, sold them, and got the money for them. As against an innocent holder for value it is estopped to say that it did this without authority.

4. The fourth plea is an awkward attempt at non est factum. What it sets out does not amount to the plea of non est factum. The gist of such a plea is the direct and positive averment that the instrument sued on is not the party's deed. And this positive and direct averment must be supported by the oath of the party. Now this plea, in order to ease the conscience of the required oath, goes on to say that the county did not do certain things, nor did the county authorize certain individuals to do those things, and then by way of argument and inference concludes, 'and so the said defendant says that the said alleged acts and coupons are not its acts and deeds.'

The plea is bad on other grounds. It purports to be a special plea of non est factum. Such a plea must traverse some fact set out in the declaration which is essential to make the instrument the deed of the defendant. The substance of the plea is that the county did not sign nor seal the instruments, nor did it authorize others to do so for it. This is pleading a mere conclusion of law. If the facts set forth in the declaration are true, these bonds and coupons were sealed and delivered by the county. The facts, as specifically set forth in the declaration, are not traversed by the plea. Admitting those facts to be true, the defendant merely puts in its conclusion that it did not execute the bonds and coupons, or authorize it to be done.

Reply: It is said that the third plea is good because it shows an estoppel. But where this doctrine has been applied in actions against municipal corporations, either the instruments imported on their face a compliance with the law conferring the power to issue them, or there appeared subsequent acts on the part of the proper authorities amounting to a ratification; and even then the estoppel has been allowed only in favor of bond fide owners for value; not in favor of mere holders.

Mr. Justice STRONG delivered the opinion of the court.

title: Pendleton County v. Amy


text: Talk:Pendleton County v. Amy

title: Talk:Pendleton County v. Amy


text:
Pendleton County v. Amy/Opinion of the Court

It must be admitted that the pleas interposed by the defendant in the court below were inartistically framed; that they were argumentative, and that they set up nothing which could not have been taken advantage of, for what it was worth, under the general issue. They might have been stricken from the record on motion, or, if special demurrers were allowable in that circuit, they would have been condemned, had the plaintiff so demurred. But the demurrers were general, and the question before us is whether any of the pleas set up a substantial defence to the action.

Now, in regard to the first plea, while it is true that the defence which it sets up was only inferentially an answer to the plaintiff's complaint, and while it might as well have been set up under the general issue, it was nevertheless a traverse of a material averment of the declaration. The coupons were made payable to bearer, but if the plaintiff was neither the owner, nor the holder, nor the bearer, they were not promises to pay him, and the county was not indebted to him. Hence it was material to his case to aver, as he did, that he was the bearer, and the plea took issue with this averment. It denied the title of the plaintiff, or his right of action, and, though faulty in form, in substauce it amounted to a defence. It was, therefore, error to overrule it upon a general demurrer.

Similar observations might be made respecting the demurrers to the second and fourth pleas.

The third plea was in effect a denial of any legislative authority to the county to subscribe to the stock of the railroad company, and to issue bonds for the payment of such subscription. The general demurrer to it raises the question whether it presented a substantial defence to the action.

It is to be noticed at the outset that the plea concedes legislative authority to the county to make a subscription, and to issue bonds in payment, though the exercise of the authority was required to be preceded by a popular vote. It concedes that the bonds were in fact made and issued. We say it concedes this, because such making and issue are alleged in the declaration, and the plea does not traverse the allegation. It concedes that the subscription was made; that the bonds were delivered to the company in payment; that they were sold for $50,000; that the plaintiff subsequently became the owner, and hence that he stands in the position of a purchaser for value; and it concedes that the county obtained for the bonds a certificate of stock in the railroad company, which it now holds.

Without legislative authority a municipal corporation, like a county, may not subscribe to the capital stock of a railroad company, and bind itself to pay its subscription, or issue its bonds in payment; and if it does, the purchase of such bonds is affected by the want of authority to make them. But it does not follow from this that when the legislature has given its sanction to the issue of bonds, provided that before their issue certain things shall be done by the officers, or the people of the county, the bonds can always be avoided in the hands of an innocent purchaser by proof that the county officers, or the people, have not done, or have insufficiently done, the things which the legislature required to be done before the authority to subscribe, or to issue bonds, should be exercised. A purchaser is not always bound to look farther than to discover that the power has been conferred, even though it be coupled with conditions precedent. If the right to subscribe be made dependent upon the result of a popular vote, the officers of the county must first determine whether the vote has been taken as directed by law and what the vote was. When, therefore, they make a subscription, and issue county bonds in payment, it may fairly be presumed, in favor of an innocent purchaser of the bonds, that the condition which the law attached to the exercise of the power has been fulfilled. To issue the bonds without the fulfilment of the precedent conditions would be a misdemeanor, and it is to be presumed that public officers act rightly. We do not say this is a conclusive presumption in all cases, but it has more than once been decided that a county may be estopped against asserting that the conditions attached to a grant of power were not fulfilled. The estoppel in these cases was either by recitals in the bonds that the conditions precedent had been complied with, or by the fact that the county had subsequently levied taxes to pay interest on the bonds. In the present case it does not appear in the pleadings whether or not the bonds contained any such recitals, nor whether the officers of the county have levied taxes to pay interest on them, or whether any interest has been paid. These grounds of estoppel do not exist. But if such acts and such recitals are sufficient to protect bon a fide purchasers against an attempt to set up noncompliance with the conditions attached to the grant of power to issue the bonds, it is not easy to see why the pleadings do not show an estoppel in this case. The county received in exchange for the bonds a certificate for the stock of the railroad company, which it held about seventeen years before the present suit was brought, and which it still holds. Having exchanged the bonds for the stock, can it retain the proceeds of the exchange, and assert against a purchaser of the bonds for value that though the legislature empowered it to make them, and put them upon the market, upon certain conditions, they were issued is disregard of the conditions? We think they cannot, and, therefore, that the third plea cannot be sustained.

But for the reasons given above the case must be sent back for another trial; when, doubtless, the pleadings will be changed.

REMITTED FOR FURTHER PROCEEDINGS.

The CHIEF JUSTICE, with MILLER and FIELD, JJ., concurred in a judgment of reversal, but said that they did not assent to all the views expressed in the preceding opinion.


text: Talk:Pendleton County v. Amy/Opinion of the Court


text:
Williams v. Kirtland

ERROR to the Circuit Court for the District of Minnesota.

This was an action of ejectment for the possession of certain real property, situated in the city of St. Paul, in the State of Minnesota. The declaration was in the form usual in Minnesota. The plea was the general issue; and by consent of parties a jury was waived and the cause tried by the court. The plaintiff claimed the premises under a deed executed in 1864, by the auditor of Ramsey County of that State upon a sale for unpaid taxes.

The statute of Minnesota of March 11th, 1862, under which the sale was made, provided that certain lands sold for taxes of the year 1859, and of previous years, and lands upon which delinquent taxes were due on the passage of the act to any city, or to the State, might be redeemed by payment of the amount of the taxes, with interest and costs, on or before November 1st, 1862; that if any such lands remained unredeemed, or such delinquent taxes on lands remained unpaid at that time, the lands should become forfeited to the State, and that thereupon it should be the duty of the county auditor to advertise the property for sale, stating that such lands would be sold as forfeited to the State under the provisions of the act, and the time and place of sale, which time should be the second Monday in January, 1863.

The statute also contained provisions requiring publication of notices of the sale, prescribing the manner in which the sale should be conducted, for the issue of certificates of sale to the purchasers, and, upon the return of the certificates, for the execution and delivery to him, or his assignee, of a deed in fee simple for the premises, which should recite the sale and the fact that the property was unredeemed. And the statute declared that the deed thus executed should vest in the grantee an absolute title, both at law and in equity, except where the tax returned delinquent was actually paid; and 'that any person or persons having or claiming any right, title, or interest in or to any land or premises after a sale under the provisions of this act, adverse to the title or claim of the purchaser at any such tax sale, his heirs or assigns shall within one year from the time of the recording of the tax deed for such premises commence an action for the purpose of testing the validity of such sale, or be forever barred in the premises.'

A statute of the State, passed in 1866, provides that where lands sold for taxes were not redeemed within the time allowed by law, the deed executed by the county auditor should be prim a facie evidence of a good and valid title in the grantee, his heirs, and assigns.

The deed recited that the sale was made on the 11th of February, 1863, and did not recite any cause for disregarding the day designated for the sale in the statute, namely, the second Monday in January, 1863. The deed also recited that the sale was 'for the sum of $337.80; being the amount of taxes for the years 1853, 1854, 1855, 1856, 1857, 1859, 1860, 1861, with interests and costs chargeable on said tract of land.'

After the deed was received in evidence, the defendant, to maintain the issue on his part, produced as a witness the treasurer of Ramsey County at the time of the sale mentioned in the deed, and offered to prove that the notice of the sale was insufficient; but the plaintiff objected to the proof on the ground that it was incompetent and immaterial, and the objection was sustained by the court. The defendant excepted. The court thereupon found that the plaintiff was entitled to judgment for the possession of the premises in controversy, by virtue of the tax deed, and rendered judgment accordingly; and the defendant brought the case here on writ of error.

Messrs. J. B. Brisbin and E. C. Palmer, for the plaintiff in error; Mr. I. D. Warren, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Williams v. Kirtland


text: Talk:Williams v. Kirtland

title: Talk:Williams v. Kirtland


text:
Williams v. Kirtland/Opinion of the Court

We agree with counsel that the provision in the statute of March 11th, 1862, that the tax deed executed by the county auditor should vest in the grantee an absolute title, both at law and in equity, except where the tax returned delinquent was actually paid, only declared the effect of a deed such as the statute contemplated, and did not dispense with proof of compliance with the preliminary requirements of the act. The officer, in making the sale and executing the deed, acted under a special power, and, as in all such cases, was bound to keep strictly within the limits of his authority. No attempt was made by the plaintiff to show the levy of any tax upon the property, or its non-payment, or that any sale was ever had. He relied, to supply the want of such proof, upon a provision of the statute of 1866, declaring that where lands sold for taxes were not redeemed within the time allowed by law, the deed executed by the county auditor should be prim a facie evidence of a good and valid title in the grantee, his heirs, and assigns.

It is admitted that a deed executed under these circumstances would, if valid on its face, have dispensed, in the first instance, with proof of the previous proceedings, upon the performance of which a sale only could be made. But it is contended that it was essential to the admission of a tax deed, having of itself such effect as evidence, that it should appear that the lands sold for taxes had not been redeemed when the deed was executed and delivered. And it is stated that this has been expressly adjudged by the Supreme Court of Minnesota upon the construction of the provision of the statute of 1866 cited by the plaintiff. Such is undoubtedly the case, and, had the objection been taken when the deed was offered, the deed would not have been admissible, in the absence of such proof, to establish a title in the plaintiff. But the plaintiff is precluded from availing himself of the objection here, as it was not urged in the court below, and is not covered by any of the several objections presented by him.

It may admit of much doubt, as also contended by counsel, whether the deed was not invalid on its face. The act of 1862 declares that notice of the sale should be given for the second Monday of January, 1863. The deed shows that the sale took place on the 11th of February following, and contains no recitals explaining the disregard of the day designated by the statute and the selection of a different day.

The act of 1862 also provides for sale of certain lands upon which the taxes of 1859 and of preceding years were unpaid. The deed shows that the sale was made for delinquent taxes not only of these years, but also of the subsequent years of 1860 and 1861; and counsel have not called our attention to any statute of Minnesota which authorizes a sale for the taxes of these years added to the taxes of the previous years.

But it is not necessary to express any opinion upon these objections until we have the entire statutes of the State on the subject of these tax sales before us. There is one error in the ruling of the court below which will require a reversal of the judgment. Giving to the deed full effect as prim a facie evidence of title, its validity was open to question by the defendant. The statute does not dispense with the performance of all the requirements of the law prescribed for the sale of the land. It only shifts the burden of proof of such compliance from the party claiming under the deed to the party attacking it. The deed itself, when admitted, creates under the statute a presumption that all essential preliminary steps in the assessment and levy of the tax and sale of the property have been complied with. This presumption the defendant desired to rebut. He offered to prove that the notice of the sale was insufficient, but the offer was rejected under the objection that the proof was incompetent and immaterial. In this the court below erred.

Some criticism was made upon the form of the offer, that it was not to prove any particular fact, but a conclusion of law. It would undoubtedly have been better for counsel to have stated the facts he desired to establish, but no objection was taken to the form of the offer; the objection was only to the competency and materiality of the proof; and it would be unjust to the defendant to deprive him in this court of the benefit of his offer on grounds not presented in the court below. That court evidently considered the right of the defendant to question the validity of the deed as lost by the operation of the 7th section of the act of 1862, which declared: 'That any person or persons having or claiming any right, title, or interest in or to any land or premises after a sale under the provisions of this act, adverse to the title or claim of the purchaser at any such tax sale, his heirs or assigns shall within one year from the time of the recording of the tax deed for such premises commence an action for the purpose of testing the validity of such sale, or be forever barred in the premises.'

It is a sufficient answer to this view of the operation of this statute, that the Supreme Court of Minnesota has adjudged that the statute does not apply to cases where the owner of the property defends against a tax deed in an action of ejectment; and if it were susceptible of such application that the statute itself would be in conflict with the constitution of the State. This construction of a State law upon a question affecting the titles to real property in the State by its highest court, is binding upon the Federal courts.

REMANDED FOR A NEW TRIAL.


text: Talk:Williams v. Kirtland/Opinion of the Court


text:
Canal Company v. Clark

APPEAL from the Circuit Court for the Southern District of New York; the case, which arose on a bill to enjoin the use of an alleged trade-mark, being thus:

In the northeastern section of Pennsylvania there exists a place or region to which from early times the name of Lorckaworna, or Lackawanna, seems, on the few occasions when the place is mentioned, to have been given. As early as 1793, the diary of William Colbert, a pioneer preacher of the Methodists, makes record of his meeting a person who lived at 'Lackawanna,' and of his crossing a mountain and getting there himself. A deed, dated in 1774, speaks of a river running through that valley or region as 'the Lackaworna,' and another deed dated in 1796 conveyed 'lands lying and being in Upper Settlement, so-called, and abutting on each side of the Lackawanna.' The region, however, in those early times was uncultivated and little known to people generally in any way, and the name was unheard of and unnoted except by those who were dwelling in the very district.

The discovery and use of coal in Pennsylvania, soon after the year 1820, wrought an immense change in the whole northeastern part of the State. It brought this valley and others, as, for example, the Wyoming, Lehigh, and Schuylkill, into very prominent position and interest; and the 'Lackawanna Valley' soon became a well-known and sufficiently defined region; one of large dimensions, extending along what had become known as the Lackawanna River to its junction with the Susquehanna. In 1825 the Delaware and Hudson Canal Company purchased coal lands in this region, and in order to mine and bring the coal there to market, constructed at great expense a canal from Rondout, on the Hudson, to Honesdale, in Pennsylvania, a distance of one hundred and eight miles, and a railroad thence to their coal mines, which they had since maintained, for the purpose of bringing their coal to market. This transport they began to make in 1828, and had ever since been engaged in taking out coal and in carrying it to the Hudson River and to the markets of the country; gradually increasing their annual productions. In the first year they produced 720 tons, in the second year 43,000 tons, and in 1866 1,300,000 tons.

The coal coming from the Lackawanna Valley, and it being impossible for ordinary persons by mere inspection to distinguish it from that mined elsewhere, it naturally got, or artificially had given to it, at the commencement of the company's business, the name 'Lackawanna coal;' and by this name it had been generally afterwards known and called in the market.

Although this coal came from a section of country called both by geologists and the public the Lackawanna region, still the company were, without doubt, the first and for more than twenty years the only producers of coal from that region, and during all this time their coal had become favorably known in market by the name already mentioned.

In 1850, another company, the Pennsylvania Coal Company, began to mine coal from their mines situated in the same general region of country, and for the first two years the coal which they mined was partially prepared and brought to market by the Delaware and Hudson Canal Company, already named as the original operators, and sold under contract in common with their own; but, about 1852, when the Pennsylvania company began itself to bring its coal to market and to sell it, it got or had given to it the name of 'Pittston coal,' by which it was frequently or generally known and called, especially when specifically spoken of.

Afterwards, about 1856, a third company-the Delaware, Lackawanna, and Western Railroad Company-began to mine coal from mines which they owned, situated in other parts of the same section of country, and to distinguish it from that of other producers, their coal got or had given to it the name of 'Scranton coal,' by which it had since been frequently or generally known and called, especially when meant to be particularly referred to.

Coals from other parts of the same region got or had given to them distinctive names; such as Lehigh coal, Hazelton coal, Spring Mountain coal, Sugarloaf coal, &c., and in like manner coals from the Schuylkill region acquired or had given to them distinctive names by which the same were known more particularly in the market.

With all this, however, all the varieties coming, as in effect they did, from the same great veins or strata, were not unfrequently of later times spoken of by the trade, when speaking generally, as being Lackawanna coal; and under the general heading of statistics relating to coal would be spoken of in like generic terms.

The original Lackawanna was asserted by those interested in its sale to be better prepared than either of the others. From this circumstance or from some other it was esteemed and commanded, with a class of purchasers, a higher price than either the Scranton or Pittston.

The canal company had a market for their Lackawanna coal in the City and State of New York, and also in the cities and towns of the Eastern States, and, amongst others, at Providence, R. I., where they had for many years sold annually large quantities by the name of 'Lackawanna coal,' by which it had been favorably known.

In this state of things, one Clark, a dealer in coals, at Providence, advertised in the newspapers published in that city and otherwise, that he kept on hand, for sale cheap, large quantities of 'Lackawanna coal,' and in this way, and by that name had sold many tons of the Pittston and Scranton coals annually. It was admitted that he did not have any of the canal company's coal that is to say, the original Lackawanna-for sale.

Hereupon the Delaware and Hudson Canal Company filed their bill against Clark, to enjoin his calling the coal which he sold 'Lackawanna coal.' The bill averred that about the time the canal company commenced their operations, they sought out, devised, and adopted the name 'Lackawanna coal' as a special, particular, and distinctive name or trade-mark, by which their coal might be introduced to dealers as the product of their mines in distinction from the coal of other producers, and that prior to their adoption of the word Lackawanna it had never been adopted or used in combination with the word 'coal' as a name or trade-mark for any kind of coal. Their bill also averred that ever since their adoption of the name their coal has been called and known in the market as 'Lackawanna coal,' and by no other name.

The defendant, it was admitted, had none of the complainant's 'Lackawanna coal' for sale, but dealt in coals from another part of the Valley; sorts which when specifically distinguished, as they constantly were, were distinguished by the name of 'Scranton coal,' and 'Pittston coal;' coals having the same general appearance as the complainant's 'Lackawanna coal,' and which the bill alleged could not be easily distinguished therefrom by inspection.

The answer denied that the name 'Lackawanna coal' was, or ever had been, the peculiar property and trade-mark of the complainants, or of benefit to them as establishing the identity of the coal. It admitted that the defendant kept coal for sale, and that he did not purchase or keep for sale any of the company's Lackawanna coal, and that he dealt almost exclusively in coal mentioned in the bill as Scranton and Pittston coal, and that the two varieties were of the same general appearance as the coal of the complainants. It denied, however, that those varieties of coal were known by the names just mentioned, exclusively, or were of a less good quality than the coal of the complainants, and averred the contrary; affirming that they were equally Lackawanna coal, and known by that name, as the evidence tended to show that generically they were.

The court below dismissed the bill, and from that decree the Delaware and Hudson Canal Company appealed. The leading question presented by the appeal being whether the complainants had an exclusive right to the use of the words 'Lackawanna coal,' as a distinctive name or trade-mark for the coal mined by them, and transported over their railroad and canal to market; there being also some other points not necessary to be here stated.

The case was fully and remarkable well argued on both sides, and with a nice analysis of authorities.

Messrs. E. H. Owen and S. P. Nash, for the plaintiffs in error:

It cannot be doubted as a fact that the defendant advertises his coal as 'Lackawanna coal,' for the purpose of inducing the public to believe that it is in fact the coal produced and sold by the canal company, and with the intention of supplanting the company in the good will of its trade. This is a fraud upon the public, and a fraud also upon the company suing; depriving them of the benefit of any right they have in the word Lackawanna, as a trade-mark.

Now, the canal company has a valid title to the use of the word Lackawanna as a trade-mark. They were the first to adopt and impose upon it the office of becoming and being thereafter the name for their coal; so adopting and appropriating it as early as 1828, at the commencement of their business. The first coal which they brought to market was called and sold by the name of Lackawanna coal, and all the coal which they have hitherto brought to market has been sold and dealt in by that name and by none other. By such original appropriation of the word 'Lackawanna,' they acquired a title thereto, and the right to its exclusive use in combination with the word 'coal,' and thereupon and thereafter, by the continued use thereof, the new compound word 'Lackawanna coal' became, and was, and is, the name and trade-mark for their coal, not limited by territorial bounds.

It is not necessary that a word which may be adopted as a name and trade-mark should be a new creation never before known or used, to entitle it to be so adopted. Any word in common use may be taken, if its application be original, and so far peculiar as to be capable, when known to the public, of distinguishing the property of the party so adopting it, and to which it may be attached, from that of other parties. In such case the right of the public to use the word is not abridged. It can be used as originally and in any and every other way imaginable, except in its peculiar combination with the word 'coal.'

The exceptions to the right to appropriate a word for a trade-mark are, that it cannot be done when the word adopted is merely used as descriptive of quality, as in the case of Stokes v. Landgraff, or of Corwin v. Daly, or of Amoskeag Manufacturing Company v. Spear; or where it is the proper name for the article, as in the case of the 'Schnapps,' the subject of controversy in Wolfe v. Goulard; or where it has by general use become the appropriate name of an article, which all persons manufacturing the same may use, as in the case of 'Dr. Johnson's Yellow Ointment,' or that of 'The Essence Of Anchovies.'

The word Lackawanna, as used by the company, does not come within these exceptions. It is not the naturally appropriate name for coal. In its original sense it did not mean coal, nor had it become by previous use the name of coal, nor does it imply, nor was it intended to indicate the quality of coal, but it was adopted for and became, and was, and still is, the specific name thereof, indicating its origin and ownership, and by which it could be bought and sold in market.

The defendant does not pretend that he originated the name, or that any other company or person adopted or used it as a specific name for coal prior to the time when the canal company adopted it. Nor has he any color of right to sell his coal by the name of 'Lackawanna coal,' from the mere fact that it comes from what is commonly known as the Lackawanna region; more especially since it does not come from the company's mines, nor through them as producers, and is not, in fact, the coal known in market as Lackawanna coal. That the different varieties, Pittston, Scranton, and Lackawanna, may be occasionally grouped together in loose parlance, or in the ultimate head of a statistical exhibit, under the general name of Lackawanna coal, proves nothing. Different varieties of Lehigh and Schuylkill coal are grouped under those two general names. So different varieties of German wines are, and called Rhine wines, but this would give no right to any one to use the peculiar and specific name of one kind of coal or wine as and for the name of another produced by a different person.

Various authorities support our view. To three as particularly doing so we refer the court.

The first is Newman v. Alvord. There the plaintiffs manufactured water-line from beds near Akron, Erie County, New York, which they called 'Akron Cement, Akron Water-lime,' and the defendant manufactured a similar article from his beds near Syracuse, Onondaga County, and called his 'Onondage Akron Cement and Water-lime,' and it was held that the word Akron, as used by the plaintiffs, was their trade-mark, and that they were entitled to be protected by injunction in its use.

The next case is McAndrews v. Bassett. There it appeared that the plaintiff had first adopted and used the word 'Anatolia,' as a name for his liquorice, and the defendant insisted upon his right to use that word also as the name of his liquorice, because it was the name of a country, the use of which, as he alleged, was common to all, the therefore the plaintiff had no exclusive right to its use; but the court pronounced the argument a 'fallacy,' and stated that although property in a word cannot exist for all purposes, yet it will exist when applied by way of stamp upon a stick of liquorice, the moment the article thus stamped goes into market. In the case at bar, although the coal cannot be stamped, yet the moment it is produced in market the name Lackawanna becomes united to it as fully as if it had been stamped thereon. There is no difference in principle between the two cases.

The third case is Seixo v. Provezende, where it appeared that the plaintiff, Baron de Seixo, was the proprietor of an estate called the Quinta de Seixo, which was celebrated for the port wine produced from it, and which be consigned to London for sale, placing upon the heads of the casks various marks, and at the bung a crown with the word, 'Seixo,' and so his wine became known as 'Crown Seixo.' The defendant being the lessee of an adjoining estate known, also, as the Quinta de Seixo, sent his wine to London with certain marks on the head of the casks, and at the bung thereof a crown and the words, 'Seixo de Cima' (Upper Seixo), and he claimed the right so to use the name Seixo, on the ground that he was owner or lessee of a vineyard adjoining the plaintiff's, also of several small vineyards on the opposite side of the river, parts of which were known by the name of 'Seixo,' meaning stony or pebbly. The court held, that even conceding that, it did not justify the defendant in adopting a device or brand, the probable effect of which was to lead the public to suppose when purchasing his wine, that they were purchasing the wine produced from the plaintiff's vineyard.

Our whole case is summed up in Lord Langdale's language in Croft v. Day. His lordship there says:

'No man has a right to sell his own goods as the goods of another. You may express the same principle in different form, and say that no man has a right to dress himself in colors, or adopt and bear symbols to which he has no peculiar or exclusive right, and thereby personate another person for the purpose of inducing the public to suppose either that he is that other person, or that he is connected with, or selling the manufacture of such other person, while he is really selling his own. It is perfectly manifest that to do these things is to commit a fraud, and a very gross fraud.'

But to establish the defendant's fraud and deceit, it is not even necessary to show that he sells his coal as and for that of the appellants. It is sufficient that he intentionally sells it by the name which he knows the appellants had previously adopted as the name of their coal.

Mr. H. E. Knox, contra, with a brief of Messrs. Fullerton, Knox, and Rudd, relied on the following general propositions of law established by principle or by authorities, which he cited.

1. That to constitute a trade-mark in a name, the name must be either (1) an invented one, or (2) one which identifies the maker with the article by indicating the person by whom made, or the place at which made, in other words, the name must be either a merely fancy name or a name indicating ownership or origin.

2. That a person has no right to appropriate a name which others may apply with equal truth, and have an equal right to employ for the same purpose, such as a geographical name, as in this case.

3. That the basis of the action of a court of equity to restrain the infringement of the right to a trade-mark is fraud or imposition on the part of the defendant, fraud as against the plaintiff, or imposition on the public.

4. That the name must be used distinctively and exclusively in order to gave a title to it.

Mr. Justice STRONG delivered the opinion of the court.

title: Canal Company v. Clark


text: Talk:Canal Company v. Clark

title: Talk:Canal Company v. Clark