text:
Bast v. Bank/Opinion of the Court

This is an action on three notes made by Bast, the plaintiff in error, to the First National Bank of Ashland, defendant in error, dated March 1, 1876, and payable four months after date, two being for $2,000 each, and the other for $3,481.79. Simultaneously with the delivery of the notes the following assignment in writing was made:--

'Know all men by these presents, that I, Emanuel Bast, do hereby transfer and assign to William Torrey, cashier, of Ashland, Pennsylvania, a certain judgment of June Term, 1875, in Court of Common Pleas of Schuylkill County, No. 1292, in which the First National Bank of Ashland is plaintiff, and the Ringgold Iron and Coal Company is defendant, and the three several drafts upon which the said judgment was obtained as collateral security for the payment of two notes of $2,000 each, and one for $3,481.69, made by me to order of William Torrey, cashier, dated March 1, 1876, payable in four months after date, and upon failure on my part to pay said notes at maturity, or at the maturity of time, for which the same may be renewed, then the said Torrey, cashier, is hereby authorized and empowered to sell the same at public sale, after ten days' notice, to me, and apply the proceeds thereof to payment of my said notes, and in case the proceeds of same shall not be sufficient to pay said notes, then I promise to pay any balance that may be due.

'In witness whereof, I have hereunto set my hand and seal, this first day of March, 1876.

'EMANUEL BAST. [SEAL.]

'Witness: A. P. SPINNEY, S. HENRY NORRIS.'

Bast was at the time the owner of the judgment assigned, on which there was due the exact amount of his notes, and on each of the notes was an indorsement to the effect that the judgment assigned was held as collateral. There was no legal impediment in the way of an immediate issue of execution on the judgment, and until May 19, 1876, the Iron and Coal Company, the judgment defendant, had unincumbered personal property subject to levy and sale on execution sufficient to pay the amount that was due. No execution was issued until June 19, and before that time the property of the company had all been exhausted by the prior levy of executions issued on other judgments. Bast made no demand on the bank to issue execution on his judgment at any time before June 19.

After the maturity of the notes the judgment was sold pursuant to the authority contained in the assignment and $2,141 realized, which was applied towards the payment of the notes. This suit was brought to recover the balance due after this application was made.

Bast filed an affidavit of merits, which in Pennsylvania has the effect, in cases of this class, of a plea, in which he alleges, 1, that it was the duty of the bank under the written assignment to have issued execution on the judgment prior to the time it did; and, 2, 'that simultaneously with his delivery of said notes to said bank as aforesaid, as well as said assignment of said judgment as collateral security for the same, it was agreed between deponent (Bast) and said bank, as part of the transaction, that said bank would issue execution upon said judgment and proceed to collect the same whenever the money could be made thereon.' He then claimed that, 'by reason of the supine neglect of the plaintiff in not issuing execution as aforesaid, the said judgment assigned to it as aforesaid as collateral security for the payment of the notes sought to be collected in this case was lost and became worthless, whereby deponent suffered damages to an amount equal to the full amount due upon the notes in suit.'

The court below held that the defence set up in the affidavit of merits was insufficient in law, and gave judgment for the bank for $5,440.46, the balance remaining due on the notes.

To reverse this judgment this writ of error has been brought.

Two questions are presented by the defence in this case.

1. Was the bank bound by the terms of the written assignment to take steps for the collection of the judgment before the maturity of the notes?

2. Was parol evidence admissible to prove the alleged promise, made simultaneously with the assignment and as part of the transaction, to issue execution and collect the judgment whenever the money could be made thereon?

1. As to the assignment.

No obligation to collect was in terms put on the bank by the writing. On the contrary, the only power conferred on the bank in reference to the judgment was to sell if the notes were not paid at maturity, or at the maturity of their renewals. All parties seem to have contemplated delay in the collection, and Bast seems also to have been especially careful to retain in his own hands the power to withhold execution if he saw fit. Until a sale was made under the express power granted for that purpose he continued the actual owner of the judgment, subject only to the lien of the bank to secure the payment of his notes. So far as any thing appears on the face of the written instrument, he retained full control of the collection by legal process; but whether that be so or not, he certainly could call on the bank at any time before a sale to take the necessary steps, or permit him to do so, to enforce its collection, or to secure and preserve such priority of lien as the judgment was entitled to over other judgments or executions thereon. If the bank had failed to comply with his demand, and loss had ensued, other questions than such as are now presented might have arisen. But upon the face of the assignment we are clearly of the opinion that the bank put itself under no obligation to collect except on the demand of Bast. Any attempt to do so before the maturity of the notes, without his consent, would be a direct violation of the terms of the instrument under which it acquired all its rights.

2. As to the parol evidence.

No principle of evidence is better settled at the common law than that when persons put their contracts in writing, it is, in the absence of fraud, accident, or mistake, 'conclusively presumed that the whole engagement, and the extent and manner of their undertaking, was reduced to writing.' 1 Greenl. Evid., sect. 275. In Pennsylvania, the stringency of this rule has been very considerably relaxed, but we have been referred to no case where, in the absence of fraud or mistake, parol evidence has been admitted to alter the plain and unequivocal terms of a written instrument. In Martin v. Berens (67 Pa. St. 463), the court say: 'Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one, and now that parties are allowed to testify in their own behalf, the necessity of adhering strictly to it is all the more imperative.' In this case the Pennsylvania decisions are extensively reviewed, and the exceptions to the rule of the common law which they recognize carefully stated, but the conclusion is that, 'as a general rule, it (parol evidence) is inadmissible to contradict or vary the terms of a written instrument.' Again, in Bernhart v. Riddle (29 id. 96) this language is used: 'Where parties have deliberately put their engagements in writing, and no ambiguity arises out of the terms employed, you shall not add to, contradict, or vary the language mutually chosen as most fit to express the intention of their minds. What if parol evidence prove, never so clearly, that they used such and such words in making their bargain; the writing signed, if it contain not those words, is final and conclusive evidence that they were set aside in favor of the other expressions that are found in the written instrument. And hence this rule of law is only a conclusion of reason, that that medium of proof is most trustworthy which is most precise, deliberate, and unchangeable.' This is the rule, it was said, which prevails in reference 'to the terms in which the writing is couched,' and that 'evidence to explain the subject-matter of an agreement is essentially different from that which varies the terms in which a contract is conceived.' It is not always easy to determine when in Pennsylvania parol evidence is admissible to explain a written instrument, but in Anspach v. Bast (52 id. 356), it is expressly declared that 'no case goes the length of ruling that such evidence is admitted to change the promise itself, without proof or even allegation of fraud or mistake. The contrary has been repeatedly decided.' To the same effect is the case of Hacker v. National Oil Refining Co. (73 id. 93), as well as many others that might be cited.

In the present case, as we have seen, the contract which the parties reduced to writing is, in effect, that the bank should not, before the maturity of the notes, take measures to collect the judgment assigned without the consent of Bast. The offer was to prove a contemporaneous parol agreement that it should do so. This is a clear contradiction of the terms of the written contract, in a matter where there is no pretence of ambiguity, and where there has been no fraud or mistake.

We think the court below was right in giving judgment for the bank, notwithstanding the affidavit of merits.

Judgment affirmed.

title: Bast v. Bank/Opinion of the Court


text: Talk:Bast v. Bank/Opinion of the Court

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

title: Talk:Bast v. Bank/Opinion of the Court


text:
Railroad Company v. White

ERROR to the Circuit Court of the United States for the District of Colorado.

The facts are stated in the opinion of the court.

Mr. H. M. Teller for the plaintiff in error.

Mr. John Q. Charles, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Railroad Company v. White


text: Talk:Railroad Company v. White

title: Talk:Railroad Company v. White


text:
Railroad Company v. White/Opinion of the Court

This is a writ of error brought by the Colorado Central Railroad Company, the defendant below, to reverse a judgment against it for less than $5,000. The record shows that after a verdict in favor of the plaintiff below the defendant moved for a new trial; and on that motion the question arose, whether, 'under the facts and circumstances shown in evidence,' a certain instruction of the court to the jury 'was or was not erroneous.' The record then proceeds as follows: 'On which question the opinions of the judges were opposed, and final judgment entered on a verdict for the plaintiff. Whereupon, on motion of the defendants, by its counsel, that the point on which the disagreement so happened may, during the term, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court to be finally decided, it is ordered that the foregoing statement of the pleadings and the facts, which is made under the direction of the judges, be certified according to the request of the defendant, by its counsel, and the law in that case made and provided.' The certificate thus ordered is signed by the circuit judge and the district judge. As the law now stands, if the judges in the Circuit Court disagree, a judgment must be entered in accordance with the opinion of the presiding judge, who, in this case, was the circuit judge. Rev. Stat., sect. 650. If he had been of the opinion that the instruction was wrong, the order necessarily would have been in favor of granting a new trial. Because the new trial was not granted, therefore, we must conclude that he thought the instruction right. To bring about a disagreement under these circumstances, the district judge must have held that the instruction was wrong; but, instead of that, we find his opinion in the record, apparently delivered in disposing of the motion for a new trial, in which he maintains with much force the correctness of the instruction.

In view of these facts, as the amount in dispute is less than our jurisdiction requires, we must decline to take cognizance of the case. If the judges below are not able to agree upon the decision of any question of law which is material to the determination of a cause presented to them, our jurisdiction may be invoked to settle the differences; but in such cases, if it appears upon an examination of the whole record that no such disagreement actually existed, we ought not to consider the question, even though it may be certified in form.


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


text:
Baker v. Selden

APPEAL from the Circuit Court of the United States for the Southern District of Ohio.

The facts are stated in the opinion of the court.

Mr. Alphonso Taft and Mr. H. P. Lloyd for the appellant.

Mr. C. W. Moulton and Mr. M. I. Southard for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Baker v. Selden


text: Talk:Baker v. Selden (101 U.S. 99)

title: Talk:Baker v. Selden (101 U.S. 99)


text:
Baker v. Selden/Opinion of the Court

Charles Selden, the testator of the complainant in this case, in the year 1859 took the requisite steps for obtaining the copyright of a book, entitled 'Selden's Condensed Ledger, or Book-keeping Simplified,' the object of which was to exhibit and explain a peculiar system of book-keeping. In 1860 and 1861, he took the copyright of several other books, containing additions to and improvements upon the said system. The bill of complaint was filed against the defendant, Baker, for an alleged infringement of these copyrights. The latter, in his answer, denied that Selden was the author or designer of the books, and denied the infringement charged, and contends on the argument that the matter alleged to be infringed is not a lawful subject of copyright.

The parties went into proofs, and the various books of the complainant, as well as those sold and used by the defendant, were exhibited before the examiner, and witnesses were examined to both sides. A decree was rendered for the complainant, and the defendant appealed.

The book or series of books of which the complainant claims the copyright consists of an introductory essay explaining the system of book-keeping referred to, to which are annexed certain forms or banks, consisting of ruled lines, and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as book-keeping by double entry; but, by a peculiar arrangement of columns and headings, presents the entire operation, of a day, a week, or a month, on a single page, or on two pages facing each other, in an account-book. The defendant uses a similar plan so far as results are concerned; but makes a different arrangement of the columns, and uses different headings. If the complainant's testator had the exclusive right to the use of the system explained in his book, it would be difficult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant's book considered merely as a book explanatory of the system. Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way. As an author, Selden explained the system in a particular way. It may be conceded that Baker makes and uses account-books arranged on substantially the same system; but the proof fails to show that he has violated the copyright of Selden's book, regarding the latter merely as an explanatory work; or that he has infringed Selden's right in any way, unless the latter became entitled to an exclusive right in the system.

The evidence of the complainant is principally directed to the object of showing that Baker uses the same system as that which is explained and illustrated in Selden's books. It becomes important, therefore, to determine whether, in obtaining the copyright of his books, he secured the exclusive right to the use of the system or method of book-keeping which the said books are intended to illustrate and explain. It is contended that he has secured such exclusive right, because no one can use the system without using substantially the same ruled lines and headings which he was appended to his books in illustration of it. In other words, it is contended that the ruled lines and headings, given to illustrate the system, are a part of the book, and, as such, are secured by the copyright; and that no one can make or use similar ruled lines and headings, or ruled lines and headings made and arranged on substantially the same system, without violating the copyright. And this is really the question to be decided in this case. Stated in another form, the question is, whether the exclusive property in a system of book-keeping can be claimed, under the law or copyright, by means of a book in which that system is explained? The complainant's bill, and the case made under it, are based on the hypothesis that it can be.

It cannot be pretended, and indeed it is not seriously urged, that the ruled lines of the complainant's account-book can be claimed under any special class of objects, other than books, named in the law of copyright existing in 1859. The law then in force was that of 1831, and specified only books, maps, charts, musical compositions, prints, and engravings. An account-book, consisting of ruled lines and blank columns, cannot be called by any of these names unless by that of a book.

There is no doubt that a work on the subject of book-keeping, though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems, or of an entirely new system; and, considered as a book, as the work of an author, conveying information on the subject of book-keeping, and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book, as such, and the art which it is intended to illustrate. The mere statement of the proposition is so evident, that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of book-keeping. A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty, or want of novelty, of its subject-matter. The novelty of the art or thing described or explained has nothing to do with the validity of the copyright. To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government.

The difference between the two things, letters-patent and copyright, may be illustrated by reference to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the public. If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book. So of all other inventions or discoveries.

The copyright of a book on perspective, no matter how many drawings and illustrations it may contain, gives no exclusive right to the modes of drawing described, though they may never have been known or used before. By publishing the book, without getting a patent for the art, the latter is given to the public. The fact that the art described in the book by illustrations of lines and figures which are reproduced in practice in the application of the art, makes no difference. Those illustrations are the mere language employed by the author to convey his ideas more clearly. Had he used words of description instead of diagrams (which merely stand in the place of words), there could not be the slightest doubt that others, applying the art to practical use, might lawfully draw the lines and diagrams which were in the author's mind, and which he thus described by words in his book.

The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.

Of course, these observations are not intended to apply to ornamental designs, or pictorial illustrations addressed to the taste. Of these it may be said, that their form is their essence, and their object, the production of pleasure in their contemplation. This is their final end. They are as much the product of genius and the result of composition, as are the lines of the poet or the historian's period. On the other hand, the teachings of science and the rules and methods of useful art have their final end in application and use; and this application and use are what the public derive from the publication of a book which teaches them. But as embodied and taught in a literary composition or book, their essence consists only in their statement. This alone is what is secured by the copyright. The use by another of the same methods of statement, whether in words or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of the copyright.

Recurring to the case before us, we observe that Charles Selden, by his books, explained and described a peculiar system of book-keeping, and illustrated his method by means of ruled lines and blank columns, with proper headings on a page, or on successive pages. Now, whilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practise and use the art itself which he has described and illustrated therein. The use of the art is a totally different thing from a publication of the book explaining it. The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book. Whether the art might or might not have been patented, is a question which is not before us. It was not patented, and is open and free to the use of the public. And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.

The plausibility of the claim put forward by the complainant in this case arises from a confusion of ideas produced by the peculiar nature of the art described in the books which have been made the subject of copyright. In describing the art, the illustrations and diagrams employed happen to correspond more closely than usual with the actual work performed by the operator who uses the art. Those illustrations and diagrams consist of ruled lines and headings of accounts; and it is similar ruled lines and headings of accounts which, in the application of the art, the book-keeper makes with his pen, or the stationer with his press; whilst in most other cases the diagrams and illustrations can only be represented in concrete forms of wood, metal, stone, or some other physical embodiment. But the principle is the same in all. The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.

The remarks of Mr. Justice Thompson in the Circuit Court in Clayton v. Stone & Hall (2 Paine, 392), in which copyright was claimed in a daily price-current, are apposite and instructive. He says: 'In determining the true construction to be given to the act of Congress, it is proper to look at the Constitution of the United States, to aid us in ascertaining the nature of the property intended to be protected. 'Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.' The act in question was passed in execution of the power here given, and the object, therefore, was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term 'science' cannot, with any propriety, by applied to a work of so fluctuating and fugitive a form as that of a newspaper or price-current, the subject-matter of which is daily changing, and is of mere temporary use. Although great praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way: it must seek patronage and protection from its utility to the public, and not a work of science. The title of the act of Congress is, 'for the encouragement of learning,' and was not intended for the encouragement of mere industry, unconnected with learning and the sciences. . . . We are, accordingly, of opinion that the paper in question is not a book the copyright to which can be secured under the act of Congress.'

The case of Cobbett v. Woodward (Law Rep. 14 Eq. 407) was a claim to copyright in a catalogue of furniture which the publisher had on sale in his establishment, illustrated with many drawings of furniture and decorations. The defendants, being dealers in the same business, published a similar book, and copied many of the plaintiff's drawings, though it was shown that they had for sale the articles represented thereby.

The court held that these drawings were not subjects of copyright. Lord Romilly, M. R., said: 'This is a mere advertisement for the sale of particular articles which any one might imitate, and any one might advertise for sale. If a man not being a vendor of any of the articles in question were to publish a work for the purpose of informing the public of what was the most convenient species of articles for household furniture, or the most graceful species of decorations for articles of home furniture, what they ought to cost, and where they might be bought, and were to illustrate his work with designs of each article he described,-such a work as this could not be pirated with impunity, and the attempt to do so would be stopped by the injunction of the Court of Chancery; yet if it were done with no such object, but solely for the purpose of advertising particular articles for sale, and promoting the private trade of the publisher by the sale of articles which any other person might sell as well as the first advertiser, and if in fact it contained little more than an illustrated inventory of the contents of a warehouse, I know of no law which, while it would not prevent the second advertiser from selling the same articles, would prevent him from using the same advertisement; provided he did not in such advertisement by any device suggest that he was selling the works and designs of the first advertiser.'

Another case, that of Page v. Wisden (20 L. T. N. S. 435), which came before Vice-Chancellor Malins in 1869, has some resemblance to the present. There a copyright was claimed in a cricket scoring-shett, and the Vice-Chancellor held that it was not a fit subject for copyright, partly because it was not new, but also because 'to say that a particular mode of ruling a book constituted an object for a copyright is absurd.'

These cases, if not precisely in point, come near to the matter in hand, and, in our view, corroborate the general proposition which we have laid down.

In Drury v. Ewing (1 Bond, 540), which is much relied on by the complainant, a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under his shears; in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart. Without undertaking to say whether we should or should not concur in the decision in that case, we think it cannot control the present.

The conclusion to which we have come is, that blank account-books are not the subject of copyright; and that the mere copyright of Selden's book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book.

The decree of the Circuit Court must be reversed, and the cause remanded with instructions to dismiss the complainant's bill; and it is

title: Baker v. Selden/Opinion of the Court


text: Talk:Baker v. Selden/Opinion of the Court


text:
Meguire v. Corwine

ERROR to the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Frederick P. Stanton for the plaintiff in error.

Mr. Enoch Totten for the defendant in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Meguire v. Corwine


text: Talk:Meguire v. Corwine

title: Talk:Meguire v. Corwine


text:
Meguire v. Corwine/Opinion of the Court

The plaintiff in the court below is the plaintiff in error here.

The first count of the declaration avers that in consideration of the assistance to be rendered by him to the defendants' testator in procuring him to be appointed special counsel for the United States in certain litigated cases known as the 'Farragut prize cases,' and also in consideration of the assistance to be rendered by the plaintiff in managing and carrying on the defence in those cases,-which assistance was accordingly rendered,-the testator promised the plaintiff to pay him one-half of all fees which the testator should receive as such special counsel, and that the testator did receive as such special counsel in those cases $29,950, of which sum the plaintiff was entitled to be paid one-half, &c.

The second count is substantially the same with the first, except that it avers the consideration of the contract to have been the assistance to be rendered by the plaintiff in the defence fence of the cases named, and is silent as to the stipulation that he was to assist in procuring the appointment of the testator as special counsel for the government.

The third is a common count alleging the indebtedness of the testator to the defendant for work and labor to the amount of $12,975.

It appears by the bill of exceptions that the plaintiff called three witnesses to establish the contract upon which he sought to recover. Lovel testified that 'the testator also stated that he had agreed to pay the plaintiff one-half of all the fees he should receive in said cases, for his aid in getting the appointment of special counsel and for the assistance which the plaintiff was to render in procuring testimony and giving information for the management of the defence in said cases.'

'On cross-examination, the witness said he knew, before his said conversation with R. M. Corwine, and before Corwine was employed, that Mr. Meguire, the plaintiff, had the selection of counsel in said cases, the Treasury Department only restricting him to the selection of a man who was familiar with admiralty practice, and Mr. Meguire was to utilize the information he professed to have at that time. The bargain, as witness understood it, was that in consideration of Meguire's procuring Corwine to be employed as special counsel in those cases, and of assisting him in getting evidence and information, Corwine agreed to pay to the plaintiff (Meguire) one-half of the fees which he (Corwine) might receive from the United States for services in said cases.

'The plaintiff then called Lewis S. Wells, another witness in his behalf, who, being duly sworn, stated that since the commencement of this suit-he thought some time last year-he met the testator (R. M. Corwine, deceased) in the Treasury Department, and had a conversation with him about the plaintiff and the Farragut cases. Mr. Corwine was very angry, and said that he had agreed to pay Mr. Meguire one-half of his fees in the Farragut cases, and had paid him one-half the retainer received in 1869, and $4,000 in July, 1873, and had taken his receipt in full. That he had found out that plaintiff had not been the means of his appointment as special counsel, and he thought he had paid the plaintiff enough.'

Wells testified further that upon two occasions the testator told him the plaintiff was assisting him in the preparation of the defence in the Farragut cases, and that he had agreed to pay to the plaintiff one-half of his fees for the plaintiff's services. This is all that is found in the record touching the terms and consideration of the contract. It was in proof by a late solicitor of the treasury that the plaintiff strongly urged on him the employment of the testator as special counsel, and that at the instance of the plaintiff he called the attention of the Secretary of the Treasury to the subject, and that the appointment of the testator was thus brought about. The plaintiff had been a clerk in New Orleans, in the office of Colonel Holabird, Chief Quartermaster of the Department of the Gulf, during the war, and had possession of Holabird's papers, from which he derived the facts communicated to the testator for the defence of government in the prize suits in question. It was not controverted that the amount of fees received by the testator was $25,950, and that he paid over to the plaintiff $4,475 before the breach occurred between them. The further sum of $8,500 was claimed by the plaintiff, and this suit was brought to recover it. The learned counsel for plaintiff in error complains in his brief that 'in the charge of the court, page 10, the jury were instructed that 'the contract set out in the first count of the declaration was illegal and void, and that the plaintiff could not recover on the second count unless the jury should find that the parties made another and a distinct contract;' 'and in the first instruction asked by the defendants and given by the court the jury were told that such an arrangement is void, because it is contrary to public policy, and the plaintiff cannot recover in any form of action for any services rendered or labor performed in pursuance thereof.'. . . 'There can be no doubt that this charge was fatal to the plaintiff's whole case. The jury were not allowed to infer, as they well might have done from the testimony of more than one of the witnesses, that the testator, after his appointment as special counsel, recognized an implied agreement to pay the plaintiff half of his fees for the services of the latter rendered during the progress of the business."

In our view of the record this is the turning-point of the case. The objection taken to the instructions referred to is not so much to them in the abstract as the concrete. The complaint is that they closed the door against the inference of another contract which the jury might have drawn from the testimony in the case. To this there are several answers. If there were such testimony, it should have been set forth in the record. After a careful examination, we have been unable to find any. The instructions expressly saved the right of the jury to find another and a different contract, and their attention was called to the subject. They found none. The contract objected to by the court as fatally tainted was proved by witnesses called by the plaintiff himself. He neither proved nor attempted to prove any other. It was, then, neither claimed nor intimated that any other had been made. After the views of the court were announced, it was too late for the plaintiff to change his position and claim for the jury the right to wander at large in the field of conjecture and find as a fact what the evidence wholly failed to establish, and which, if found, would have thrown on the court the necessity to set aside the verdict and award a new trial.

A judge has no right to submit a question where the state of the evidence forbids it. Michigan Bank v. Eldred, 9 Wall. 544. On the contrary, where there is an entire absence of testimony, or it is all one way, and its conclusiveness is free from doubt, it is competent for the court to direct the jury to find accordingly. Merchants' Bank v. State Bank, 10 id. 604. The practice condemned in Michigan Bank v. Eldred is fraught with evil. It tends to create doubts which otherwise might, not, and ought not to exist, and may confuse the minds of the jury and lead them to wrong conclusions. If the instructions here under consideration are liable to any criticism, it is that they were more favorable to the plaintiff in error than he had a right to claim.

The law touching contracts like the one here in question has been often considered by this court, and is well settled by our adjudications. Marshall v. Baltimore & Ohio Railroad Co., 16 How. 314; Tool Company v. Norris, 2 Wall. 45; Trist v. Child, 21 id. 441; Coppell v. Hall, 7 id. 542. It cannot be necessary to go over the same ground again. To do so would be a waste of time. The object of this opinion is rather to vindicate the application of our former rulings to this record than to give them new support. They do not need it. Frauds of the class to which the one here disclosed belongs are an unmixed evil. Whether forbidden by a statute or condemned by public policy, the result is the same. No legal right can spring from such a source. They are the sappers and miners of the public welfare, and of free government as well. The latter depends for its vitality upon the virtue and good faith of those for whom it exists, and of those by whom it is administered. Corruption is always the forerunner of despotism.

In Trist v. Child (supra), while recognizing the validity of an honest claim for services honestly rendered, this court said: 'But they are blended and confused with those which are forbidden: the whole is a unit, and indivisible. That which is bad destroys that which is good, and they perish together. . . . Where the taint exists it affects fatally, in all its parts, the entire body of the contract. In all such cases potior conditio defendentis. Where there is turpitude, the law will help neither party.' These remarks apply here. The contract is clearly illegal, and this action was brought to enforce it. This conclusion renders it unnecessary to consider the plaintiff's other assignments of error. The case being fundamentally and fatally defective, he could not recover. Conceding all his exceptions, other than those we have considered, to be well taken, the errors committed could have done him no harm, and opposite rulings would have done him no good. In either view, these alleged errors are an immaterial element in the case. Barth v. Clise, Sheriff, 12 Wall. 400.

Judgement affirmed.

title: Meguire v. Corwine/Opinion of the Court


text: Talk:Meguire v. Corwine/Opinion of the Court


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Market Company v. Hoffman

2. Where a number of bidders filed such a bill, the value of the right to sell, which the company claimed and the court below denied, determines the jurisdiction here. Where, therefore, a sale which would have produced more than $2,500 was enjoined by the Supreme Court of the District of Columbia, the company is entitled to an appeal, under the act of Feb. 25, 1879. 20 Stat. 320.

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. William Birney for the appellant.

Mr. Richard T. Merrick for the appellee.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Market Company v. Hoffman


text: Talk:Market Company v. Hoffman

title: Talk:Market Company v. Hoffman


text:
Market Company v. Hoffman/Opinion of the Court

This was a bill originally brought by James A. Hoffman against the Washington Market Company, praying for an injunction against the company's proceeding to sell a stall in their market, occupied by him, and for a decree establishing his right to retain possession of said stall so long as he chose to occupy it for his business as a butcher. Subsequently the bill was amended by consent, and two hundred and five occupants of other stalls in the market were made complainants with him. The relief then asked was an injunction in favor of each complainant, together with a decree establishing the right of each to the continued occupancy of his stall so long as he might choose to occupy it for his business. After hearing the court by a final decree enjoined the company from selling, or offering for sale, the stands and stalls of the several complainants, or any of them, and also adjudged that the rights of the complainants in their several stalls and stands did not expire, by any valid limitations of the time for the continuance of such rights and interest, in two years from July 1, 1872. From this decree the company appealed.

The first question to be determined is whether the amount in controversy is sufficient to give us jurisdiction of the appeal. Upon this we have no doubt. While it may be true, that if Hoffman was the sole complainant, the amount in controversy would be insufficient to justify an appeal either by him or the company, the case is one of two hundred and six complainants suing jointly, the decree is a single one in favor of them all, and in denial of the right claimed by the company, which is of far greater value than the sum which, by the act of Congress, is the limit below which an appeal is not allowable. It is averred under oath in the pleadings that the sale which the company proposed to make, and the court below enjoined, would have realized to the company more than $60,000. Of this benefit the decree deprives them. It is very plain, therefore, that the appeal is one within our jurisdiction.

Dismissing this, we come directly to the merits of the case. The company, chartered by an act of Congress approved May 20, 1870 (16 Stat. 124), was authorized to erect upon a lot belonging to the United States a market-house with stalls. By the second section of the act it was enacted as follows:--

'And the said company shall, whenever any part or parts of said buildings, stalls, stands, and so forth, for market purposes, are ready for use or occupancy, offer the same for sale at public auction, for one or more years, to the highest bidder or bidders, subject to the payment of an annual rent, the amount of which to be fixed by the mayor and common council of the city of Washington and the directors of this incorporation' [a prescribed public notice being given], 'and all subsequent sales and leases thereof shall be made on similar notice and in the same manner. . . . The stalls, stands, and privileges of all kinds, in said market, to be used for market purposes, when offered at public sale, shall be let to the highest bidder, and there shall be no bidding on the part of said company, directly or indirectly; but said company, with the consent of the mayor and aldermen of the city of Washington, may fix a minimum rate of bids at such sale; and the person who shall offer the highest price, at or beyond such minimum, for any such stand, stall, or privilege, shall be entitled to the occupation thereof, and shall be considered as having the good-will and the right to retain the possession thereof so long as he chooses to occupy the same for his own business and pay the rent therefor. . . . Provided, however, that such right to the possession of such stands or stalls may be sold and transferred by such purchaser under regulations to be fixed by the by-laws of said company, and, in the case of the death of such purchaser during the existence of his lease, it shall be disposed of as other personal property.'

By sect. 14, the corporation was required to pay to the city of Washington the sum of $25,000 annually, in consideration of the privileges granted; and by sect. 12 it was provided that at the expiration of thirty years the city of Washington might take possession of the property, on paying a sum equal to a fair valuation of the buildings and improvements. The property was made to revert to the United States at the end of ninety-nine years.

Such were the provisions of the act of Congress that have any bearing on the present case. In pursuance of the authority given by the second section, the company, on the 25th of May, 1872, offered to the highest bidder, at public auction, the stalls or stands in the market, for the term of two years from the first day of July, 1872; and Hoffman, with the other complainants, or persons under whose bids they claim, became the highest bidders for the several stalls they occupy. They now insist that they are entitled to hold the stalls thus bid off so long as they may choose to occupy them for their own business and pay the rent, notwithstanding the said term of two years has expired, claiming that such are the rights given by the act of Congress to the highest bidders at the auction.

We think this claim is quite unfounded. In our judgment, it has no warrant in any reasonable construction of the charter. The company was authorized and required to sell the privilege of occupying a stall at public auction for a term, or, to use the language of the act, 'for one or more years;' and subsequent sales and leases were required to be made in the same manner. The company was left at liberty to fix the length of the term. They might sell for two years, or ten, or thirty, at their option, but in all cases sales were required to be made for a definite period. No authority was given to create a tenancy at will,-a tenancy at the will of either the company or the bidder at the sale. The prescription to sell 'for one or more years' negatives this. Had it been intended that the sale should confer upon the highest bidder the right to occupy a stall at his will, and so long as he might use it for his business, those words would not have been inserted in the statute. They would be unmeaning; even more, they would have been contradictory of the intent. It would have been sufficient to declare that the stalls should be sold at public auction, and that the highest bidder should have the right to hold so long as he chose to occupy for his business and pay rent. We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgment, sect. 2, it was said that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.' This rule has been repeated innumerable times. Another rule equally recognized is that every part of a statute must be construed in connection with the whole, so as to make all the parts harmonize, if possible, and give meaning to each.

Keeping these admitted rules of construction in view, the clause in the charter which defines the rights of purchasers at the sale, the clause upon which the complainants rely, is easily understood. It declares in effect that the highest bidder for a stall shall be considered as having the good-will, and the right to retain possession thereof during his term, so long as he chooses to occupy the same for his own business and pay the rent therefor. The construction contended for by the complainants is obviously inconsistent with the direction that sales of rights of occupancy should be made for a term; that is, for one or more years. That construction, therefore, is not to be admitted, if another reasonable one can be given. That the clause (general as its language is) has some limitation will not be questioned. It will not be claimed that it gives to the highest bidder at a sale for two years, or to his vendee or transferee (for such bidder is authorized to assign), a perpetual right of occupany so long as he pays the rent. If it does, the right may outlast the time when by the charter the corporation of Washington is empowered to take possession of the market buildings and grounds, and even the time when the company's rights and property are to revert to the United States. To understand the true meaning of the clause, it is necessary to observe what the subject was in regard to which Congress attempted to legislate. In Brewer's Lessee v. Blougher (14 Pet. 78), it was said to be the undoubted duty of the court to ascertain the meaning of the legislature from words used in the statute, and the subject-matter to which it relates, and to restrain its operation within narrower limits than its words import, if the court is satisfied that the literal meaning of its language would extend to cases which the legislature never designed to include in it. Now, the subject upon which Congress attempted by this clause to legislate was the rights of the highest bidder for a stall, under a purchase for a term of years, and not the rights of a purchaser under a bid for an indefinite period, terminable only at his will. Nothing else was in view of the legislature. No other sale had been spoken of. The enactment, therefore, that he should have the good-will and possession of the stall so long as he might choose to occupy it, paying rent, must have reference to possession during the term, for that was the only subject under consideration. Such a construction of the clause gives effect to it, denies effect to no other words or provisions in the statute, and is in strict harmony with every part. It is the only construction that harmonizes all the provisions of the act. And it is a construction which in a very important particular is beneficial to the highest bidders at the sale. The clause not only declares that the highest bidder above a fixed minimum shall by his bid become entitled to the possession, which had not been declared previously in the act, but it impliedly relieves him from what might, without it, have proved an onerous burden. The stalls in this case were sold for two years. The market company might have sold them for twenty, or even thirty. Such authority was given by the statute. Had they done so, the purchaser of a stall would have been bound to pay the stall-rent during the whole period, of twenty or thirty years, whether he occupied the stall or not, were it not for this provision, and in case of his death his estate would have been liable. To guard against this, his right under his bid to retain the occupany is declared to continue so long as he chooses to occupy for his own business, and pay the rent, clearly implying that when, during the period for which he bought, he chooses to give up the occupancy and cease to pay the rent, his liability ceases. In other words, the company is bound to permit his occupancy during the term which was sold, but the bidder is not bound absolutely to pay rent during the whole term, nor longer than he chooses to occupy the stall for his own business.

To our minds, therefore, it appears clearly that, under the true and reasonable construction of the act of Congress, the complainants below acquired by the bids made at the auction sale in 1872 no right to more than two years' occupancy of their several stalls, and no right to continue in possession thereof after July 1, 1874. Our conclusion is supported by several other considerations. In the second section of the act it is enacted that in case of the death of any purchaser at the auction sale, 'during the continuance of his lease,' his right to the possession of his stall should be sold as other personal property. The words, 'during the continuance of his lease,' indicate strongly that Congress contemplated and intended that what was sold at the auction should be a term of years, with fixed limits of duration. Else why speak of the existence of a lease and its continuance?

We may add that the contemporaneous understanding of the parties was in harmony with the construction of the statute we now give. On the twenty-third day of May, 1872, the company resolved to commence the sale of rights to occupy the stalls on the twenty-fifth day of that month, in pursuance of previous notice given; and resolved also that the sales should be of the right to occupy for two years from July 1, 1872. On the same day, May 23, 1872, the company adopted market regulations, as they were authorized to do by their charter. Among these regulations were the following: Rent shall be payable quarterly in advance. No person shall be allowed to occupy a stall, or stand, until he has signed the market regulations, and has received a permit describing the character of his stall or stand, and the conditions of occupancy. At the end of the term of each occupant he shall quit and deliver up his stand peaceably, in as good order and condition, except ordinary wear, as the same now is, or may be put into by the company. With such regulations in force the sales were made, and a permit was delivered to each purchaser, declaring him entitled to occupy his stall 'for the term of two years from July 1, 1872, paying therefor the quarterly rent in advance, subject to the conditions of the charter and by-laws of the company and the regulations of the company; the permit to be of no effect until the holder had signed the regulations.' Thus the claimants, or those under whom they claimed, obtained possession, and thus they engaged to surrender possession at the expiration of their term of two years. It does not appear to have entered into the contemplation of the company, or the bidders at the sale, at that time, that by the purchase a bidder obtained a possible right of occupancy for more than two years. The construction now insisted upon by the complainants is an afterthought, a creature of recent birth.

In view of the considerations thus presented, we are of opinion that the Supreme Court of the District erred in construing the charter of the company, and sustaining the complainants' bill. Of the cross-bill it is sufficient to say that it must fall with the bill of the complainants. This is conceded by the appellants.

The decree of the Supreme Court of the District will be reversed with costs, and the record remitted, with instructions to dismiss both the bill and the cross-bill; and it is

So ordered.

MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE HARLAN, dissenting.


text: Talk:Market Company v. Hoffman/Opinion of the Court


text:
Market Company v. Hoffman/Dissent Bradley

MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE HARLAN, dissenting.

I dissent from the judgment of the court in this case. I think that it was the intent of the statute to give to the purchasers of stalls the benefit of the 'good-will' acquired during the term, so long as they chose to keep them and pay the rents originally fixed, or which might from time to time be imposed by the common council.


text: Talk:Market Company v. Hoffman/Dissent Bradley


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Roberts v. Bolles

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This was an action brought by Bolles & Co. against the town of Roberts on certain bonds and coupons issued in its name by the supervisor of the town, in payment of its subscription to the capital stock of the Hamilton, Lacon, and Eastern Railroad Company. A judgment was rendered against the town, and the case was removed here on error. The facts are fully stated in the opinion of the court.

Mr. A. J. Bell for the plaintiff in error.

Mr. George O. Ide, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Roberts v. Bolles


text: Talk:Roberts v. Bolles

title: Talk:Roberts v. Bolles


text:
Roberts v. Bolles/Opinion of the Court

This case involves the validity of certain township bonds, bearing date April 7, 1871, issued in the name of the town of Roberts, in the county of Marshall, Ill., and made payable to the Hamilton, Lacon, and Eastern Railroad Company, or bearer, on the 7th of April, 1874, with interest from date, payable annually, on the presentation and surrender of the interest coupons as they matured.

Each bond, signed by the supervisor of the town, attested by its clerk, and certified upon its face to have been duly recorded in the township registry of bonds, as directed by law, recites that it 'is one of a series, amounting in the aggregate to $30,000, and consisting of thirty bonds, numbered from 1 to 30, inclusive, each of which is for $1,000, and all of which are of even date herewith, and are issued in accordance with the laws of the State of Illinois, in payment of a subscription made by said town of Roberts for three hundred shares of the capital stock of the Hamilton, Lacon, and Eastern Railroad Company, which said subscription was made by said town by virtue of a vote of a majority of the voters of said town in favor thereof, at a special election had for such purpose in said town on the twenty-fifth day of March, 1869, in pursuance of the provisions of the laws of the State of Illinois, and of the several acts of the General Assembly of the State of Illinois incorporating said company.'

It is found as a fact in the case that, in January, 1872, defendants in error purchased, in good faith, the bonds in the market, without notice of any defence thereto, and paying therefor at the rate of ninty-three and a half cents on the dollar.

The first plea alleges that the payee named in the bonds, the railroad company, had never indorsed them, or any of them, in writing, and that by the law law of Illinois in force when they were made, as well as when they were sold by the company, without such indorsement, they were not transferable so as to vest the title thereto, and the right to sue thereon in the name of the holder.

A demurrer to that plea was sustained, and, as we think, properly so. It is true that the Supreme Court of Illinois, in Hilborne v. Actus (4 Ill. 344), held that under a statute of that State, then in force, notes payable to a person or bearer could not be transferred, or assigned by delivery only, so as to authorize the holder by delivery to sue in his own name. 'There is one way,' the court said, 'by which he can do so, and that is by virtue of the assignment indorsed on the note itself. The indorsement gives the right to sue in the name of the assignee.' That construction of the Illinois statute was followed in Roosa v. Crist, 17 id. 450. But New Hope Delaware Bridge Co. v. Perry (11 id. 467) decides that bank-notes payable to bearer, or to a particular person or bearer, are not embraced by the provisions of the statute, or by the reasons which caused its passage; and that the holder, by delivery merely, can maintain an action thereon, unless it appears that he obtained them mala fide. The statute, it was said, applies 'only to instruments that were not negotiable by the common law or the custom of merchants.'

In Johnson v. County of Stark (24 id. 75), the court put municipal bonds and coupons on the footing, in this respect, of bank-bills, and thus brought that class of commercial securities within the rule announced in New Hope Delaware Bridge Co. v. Perry. Its language was: 'It seems to be the well-settled doctrine that State, county, city, and other bonds and public securities of this character are negotiable by delivery only, without indorsement, in the same manner as bank-bills, espe cially when they are payable to bearer.' Subsequently, in Supervisors of Mercer County v. Hubbard (45 id. 139), which was an action on coupons attached to bonds issued by a county in payment of a railroad subscription, the court said: 'More recent decisions place these coupons in the condition of bankbills payable to bearer, and no one will deny such bills can be given in evidence in a suit by the bearer against the bank issuing them, under the common counts. We see no difference between coupons payable to bearer for a sum certain, and a bank-bill. They alike pass by delivery only.' Finally, in Town of Eagle v. Kohn (84 id. 292), it was said: 'It is the well-settled doctrine that bonds of this character are to be treated as commercial paper; and this court has held coupons attached to them to be negotiable by delivery only, without indorsement.'

It is thus seen that by repeated adjudications of that court, prior to the statute of 1874, municipal bonds payable to bearer were excepted from the rule announced in Hilborne v. Actus and Roosa v. Crist.

But all doubt upon the subject is removed by the eighth section of the act approved March 18, 1874, revising the laws of Illinois in relation to promissory notes, bonds, due-bills, and other instruments of writing, which was in force when this action was commenced. It provides 'that any note, bond, bill, or other instrument in writing, made payable to bearer, may be transferred by delivery thereof, and an action may be maintained thereon in the name of the holder thereof.' Rev. Ill. 719, sect. 8.

This act, though not in force when defendants in error acquired the bonds in suit, applies, we think, to actions commenced after it took effect.

We are satisfied that this plea, tested alone by the law of Illinois, and without reference to the decisions of this court upon the subject of commercial securities, is insufficient.

The third plea, to which a demurrer was also sustained, proceeds upon the ground that the election of March 25, 1869, was called without competent authority, and conferred no power upon the supervisor and town clerk, or either of them, to subscribe to the stock or issue the bonds in question, and that the latter were, consequently, void.

Of the facts set out in the plea it is alleged that the defendants in error had 'constructive notice,' prior to their purchase of the bonds; to wit, on the day they bear date.

The questions of law presented under this plea arise out of certain facts which it is necessary to state somewhat in detail.

By an act of the legislature of Illinois, approved March 5, 1869, it is provided that any incorporated town or township of any county through or near which the Hamilton, Lacon, and Eastern Railroad Company may be located, or is about to be located, might, by a vote of the people thereof, subscribe to the corporate stock of the company any sum not to exceed $100,000 each,-such vote to be ascertained by an election held in the manner prescribed by and in conformity with the provisions of an act, approved March 6, 1867, authorizing certain designated counties, and townships, cities, incorporated towns, and corporations in said counties, to subscribe to the capital stock of any railroad then or which might thereafter be incorporated in the State of Illinois. The act of March 5, 1869, made it the duty of the clerk of each township, subscribing stock under its authority, to keep, in duplicate, a complete register of the bonds issued, showing their numbers, amount, date, and rate of interest, and deliver one copy of the same to the county clerk of his county.

Under the act of March 6, 1867, to which reference is made by the act of March 5, 1869, elections, to take the sense of the people upon subscriptions to the capital stock of a railroad company, could be called and held, upon the application of twenty legal voters and tax-payers of the county, township, city, or incorporated town in whose behalf it was proposed to make the subscription, such application specifying the amount and the conditions of the proposed subscription. The notice of such election was required to be posted, in the case of a township, by the clerk thereof, in three of the most public places of such township. If a majority of such voters voting at said township election favored the subscription, then it was made the duty of the supervisors thereof to make the subscription; and when the subscription was accepted or received, to cause the bonds to be issued in compliance with the popular vote. Pri. Laws Ill. 1867, vol. i. p. 866.

The fifth section of the act of March 6, 1867, declares that 'no mistake in the giving of the notice, or in the canvass or return of votes, or in the issuing of the bonds, shall in any way invalidate the said bonds so issued: Provided, that there is a majority of the voters at such election in favor of such subscription.'

A few weeks after the election of March 25, 1869, to wit, on 17th April, 1869, the legislature of Illinois passed an act which, in its second section, declares that subscriptions of stock made by certain townships, including that made by the town of Roberts of $30,000 to the capital stock of the Hamilton, Lacon, and Eastern Railroad Company (quoting from the act), 'be each legalized, and are hereby made valid and binding, according to the terms thereof; and the several supervisors of said townships shall issue, in due form, the bonds of their respective townships for the amount of stock subscribed for, according to the terms and conditions of said subscription, and shall deliver said bonds to said railroad company.' Pri. Laws Ill. 1869, vol. iii. p. 302.

With these facts before us, we come to the examination of several propositions which have been pressed with much force upon our attention.

It is contended that the election mentioned in the bonds declared on was a nullity, because called upon an application signed by only twelve, instead of twenty, legal voters and taxpayers, and because only ten days' notice thereof was given, when the law required twenty; that the law is imperative in these respects, and that the failure to comply with its requirements rendered the bonds void, even in the hands of innocent holders for value; that such was the settled law of Illinois, as declared by the Supreme Court of that State prior both to the election of March 25, 1869, and to the issuing of the bonds; and, finally, that such prior judicial declarations are to be regarded as part of the local statutes, binding upon this court, according to its own decisions.

Undoubtedly there are several decisions by the Supreme Court of Illinois of the character indicated by counsel; but unless we are greatly in fault in our examination, no one of them relates to a municipal subscription, or to an issue of bonds, under a statute containing a provision similar to sect. 5 of the act of March 6, 1867, under which the election in question was held. That act rests the validity of bonds issued under its authority upon the essential fact that the majority of voters at the election voted, as in this case, in favor of the subscription. In that event, it expressly declares that the bonds shall not in any way become invalidated by reason of mistake in the giving of the notice, or in the canvass or return of votes, or the issuing of the bonds. These words are without effect if the municipality issuing the bonds can avoid their payment because its agents or constituted authorities committed mistakes such as are specified in the statute. If the town clerk gave a notice of ten instead of twenty days, based upon an application of twelve instead of twenty legal voters and tax-payers, was not this a mistake 'in the giving of the notice' and 'in the issuing of the bonds'? The purchaser of the bonds, if chargeable with notice of these facts, was, in terms, assured by the statute that no such mistakes as those facts indicated would invalidate the bonds, if the majority of the voters at the election had approved the subscription. He had the right to rely upon these legislative assurances, unless the fifth section of the act of March 6, 1867, was in violation of the Constitution of the State. We do not, however, feel justified in declaring that provision of the act to be in conflict with that instrument. We are referred to no decision of the State court which so decides. On the contrary, that court, in Burr v. City of Carbondale (76 Ill. 455), which was a case of municipal bonds, said: 'These bonds having been issued in the exercise of a power constitutionally conferred, must be binding on the municipality, although some irregularities in the form of notice of the election, want of the precise words on the ballots, and others of like character, may have occurred.' p. 469.

It is true that, according to the settled construction of the Constitution of Illinois in force in 1869, the legislature could not require or compel the corporate authorities of a county, city, or town, against or without its consent, to subscribe to the stock of a railroad company. But it could authorize such corporate authorities to make subscriptions with or without referring the question to the people immediately interested.

In President and Trustees of the Town of Keithsburg v. Frick (34 Ill. 405), the Supreme Court of Illinois, speaking by the late Chief Justice Breese, held that it was by no means a necessary element in municipal subscriptions to the stock of railroad corporations that there should be a vote of the inhabitants of the town or city authorizing them; 'that it was competent for the legislature to bestow the power directly on the corporation without any other intermediary.' The authority of that case, upon some points therein determined, has perhaps been shaken by later decisions in the same court. But in Marshall v. Silliman (61 id. 218), the court, while holding that the legislature could not clothe the supervisor and town clerk, without the consent of the people, with discretionary power of taxation or of creating a debt,-they not being the corporate authorities of the township in the sense of the Constitution,-yet approved that case so far as it ruled that those who were the corporate authorities of a town, within the meaning of a State Constitution, might be empowered by the legislature to subscribe to the stock of a railroad corporation, and issue bonds therefor, without taking a vote of the people. Q. M. & P. R. R. Co. v. Morris, 84 id. 410.

Certainly the legislature could prescribe the mode of ascertaining the sense of the voters, who alone, it is claimed, were the corporate authorities of the town, within the meaning of the State Constitution. And as it might, in the act of March 6, 1867, have allowed the election to be called upon the application of a less number of voters and tax-payers than twenty, and to be held after a notice of ten days, rather than twenty, we do not see any ground to question its right, consistently with the State Constitution, to declare, in advance, that if the majority of voters at the election favor the subscription, the bonds issued in payment thereof should not be invalidated by mistakes of the kind specified in the fifth section of that act. The mistakes here complained of were not such as necessarily affected the substance or essence of the election, and consequently it cannot be said that the subscription was made or the bonds issued without the consent of the corporate authorities or the legal voters of the township. The application for the special election and the notice therefor were not so radically defective as to justify us in saying, as matter of law, that a debt for a railroad subscription was thrust upon the legal voters and tax-payers of the township without their having a reasonable opportunity to vote upon the question of subscription. It is not a case where bonds have been issued by the supervisor and town clerk, without any previous election whatever to authorize them so to do. It is a case of bonds issued in pursuance of a popular election, defectively called and held, and as to which the legislature declared that the bonds should not be invalidated by mistakes in giving the notice and in issuing them, if there was 'a majority of votes at such election in favor of such subscription.'

In this respect the case in hand is different from Township of Elmwood v. Marcy, 92 U.S. 289. In the latter case, when the notice for the election was given, there was no provision in the charter of the town or in any statute of the State which authorized the subscription. The power of the town to subscribe had previously been exhausted; and the notice was not under or with special reference to the subsequent act allowing an additional subscription. Nothing here determined conflicts with that decision.

Independently, therefore, of the curative act of April 17, 1869, we are of opinion that the bonds sued on are not invalid by reason of the departure from the provisions of the act of March 6, 1867, in the matter of the application for and notice of the election of March 25, 1869.

But a further contention of the plaintiff in error is that the Supreme Court of Illinois, in Williams v. Town of Roberts (88 Ill. 1), decided in June, 1878, nearly four years after the commencement of this action, and three years after the entry of the judgment in this case, held not only that the curative act of April 17, 1869, was in violation of the Constitution of the State, but that the election of March 25, 1869, was a nullity, conferring no power upon the supervisor of the town to make the subscription and issue the bonds.

In reference to the alleged conflict of the last-named act with the Constitution of Illinois, we give no opinion. The views we have expressed as to the validity of the bonds, under the act of March 6, 1867, particularly its fifth section, render it unnecessary to consider or determine the constitutional validity of the curative act of 1869. It is, however, claimed that we are obliged to accept the decision in Williams v. Town of Roberts, as conclusive against the validity of these particular bonds. We cannot give our assent to this proposition, for the reason, if there were no other, that that decision does not touch the precise point upon which we sustain their validity, despite the defective application and notice for the election of March 25, 1869. No reference is made, in that case, to the fifth section of the act of March 6, 1867, upon which we have commented. The Supreme Court of Illinois, in the case alluded to, undoubtedly held that the defects in the application and notice rendered that election a nullity, and that, because of such defects, the subscription was made and the bonds issued without authority of law. But we are not informed as to the effect which, in the opinion of that court, is to be given to the fifth section of the act of March 6, 1867. If the court had gone further, and decided that section to be unconstitutional; or that the defective application and notice for the election were not mere mistakes within the meaning of that section; or that the bonds declared on were null and void, notwithstanding the legislative declaration that they should not be invalidated because of any mistake in giving the notice, in issuing the bonds, or in the canvass or return of votes,-then its decision would have been an authority in point, covering the precise question before us. If we are mistaken in this, it does not follow that we should accept that decision as conclusive of this case. That would depend upon our approval or disapproval of the decision upon its merits. In Pease v. Peek (18 How. 599), we said that this court would not feel bound, 'in any case in which a point is first raised in the courts of the United States, and has been decided in a circuit court, to reverse that decision contrary to our own convictions, in order to conform to a State decision made in the mean time. Such decisions have not the character of established precedent declarative of the settled law of the State.' Morgan v. Curtenius, 20 How. 1.

For these reasons we are of opinion that the demurrer to the third plea was properly sustained.

The facts set out in the fourth plea clearly do not constitute a defence to the action. We could not hold otherwise without overturning the settled doctrines of this court in reference to municipal bonds issued in payment of subscriptions to the capital stock of railroad corporations. Our remarks in Brook lyn v. Insurance Company (99 U.S. 362) are applicable to this case, and support the action of the court in sustaining a demurrer to the fourth plea.

Other considerations might be suggested in support of the judgment, but what we have said is sufficient to dispose of the case.

Judgment affirmed.

title: Roberts v. Bolles/Opinion of the Court


text: Talk:Roberts v. Bolles/Opinion of the Court


text:
National Bank v. County of Yankton

ERROR to the Supreme Court of Dakota Territory.

The facts are stated in the opinion of the court.

Mr. S. W. Packard and Mr. James Grant for the plaintiff in error.

''Mr. Matt. H. Carpenter and Mr. James Coleman'' for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: National Bank v. County of Yankton


text: Talk:National Bank v. County of Yankton

title: Talk:National Bank v. County of Yankton


text:
National Bank v. County of Yankton/Opinion of the Court

By sect. 4 of the act to provide a temporary government for the Territory of Dakota, no one session of the legislative assembly shall exceed forty days (12 Stat. 239), and in 1869 Congress declared that the sessions of all territorial legislative assemblies should be biennial. 15 id. 300. The members of the legislative assembly of Dakota met on the 5th of December, 1870, and continued in regular session on all days, except Sundays, until Jan. 13, 1871, when they adjourned without day. The day of adjournment was called on the journals the fortieth day of the session, although there had been but thirty-five days of actual session for the transaction of business. On the 18th of April, 1871, the members of the legislature elected the preceding fall again assembled at the call of the acting governor of the Territory. After organizing themselves as a legislative assembly and proceeding to legislate for the Territory, they passed, among other acts, one entitled 'An Act to enable organized counties and townships to vote aid to any railroad, and to provide for the payment of the same.' Under this act the voters of Yankton County, on the 2d of September, 1871, voted to donate the Dakota Southern Railroad Company $200,000 in the bonds of the county. All the proceedings under which this vote was taken were conducted strictly according to the requirements of the law.

On the twenty-seventh day of May, 1872, the following act of Congress was approved and went into effect. 17 id. 162.

'An Act in Relation to the Dakota Southern Railroad Company.

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the act passed by the legislative assembly of the Territory of Dakota, and approved by the governor on the twenty-first day of April, 1871, entitled 'An Act to enable organized counties and townships to vote aid to any railroad, and to provide for the payment of the same' be, and the same is hereby, disapproved and annulled, except in so far as herein otherwise provided. But the passage of this act shall not invalidate or impair the organization of the company heretofore organized for the construction of the Dakota Southern Railroad leading from Sioux City, Iowa, by way of Yankton, the capital of said Territory, to the west line of Bon Homme County, or any vote that has been or may be given by the counties of Union, Clay, Yankton, and Bon Homme, or any township granting aid to said railroad, or any subscription thereto, or any thing authorized by and that may have been done in pursuance of the provisions of the aforesaid act of the legislative assembly of said Territory towards the construction and completion of said railroad, and the said Dakota Southern Railroad Company, as organized under and in conformity to the acts of the legislative assembly of said Territory, is hereby recognized and declared to be a legal and valid corporation; and the provisions of the act of the legislative assembly first aforesaid, so far as the same authorize, and for the purpose of validating any vote of aid and subscriptions to said company for the construction, completion, and equipment of the main stem of said railroad, between the termini aforesaid, are hereby declared to be and remain in full force, but no further, and for no other purpose whatsoever.

'SECT. 2. That for the purpose of enabling the said Dakota Southern Railroad Company to construct its said road through the public lands between the termini aforesaid, the right of way through said public lands is hereby granted to said company to the extent of one hundred feet in width on each side of said road: Provided, that nothing in this act shall relieve said Dakota Southern Railroad Company from constructing and completing said railroad in accordance with the conditions and stipulations under which the citizens of the counties therein named voted aid to said railroad in accordance with the laws of said Territory, approved April 21, 1871: Provided further, that said Dakota Southern Railroad Company shall issue to the respective counties and townships voting aid to said railroad paid-up certificates of stock in the same in amounts equal to the sums voted by the respective counties and townships.'

After the passage of this act, the bonds voted were delivered by the county commissioners to the railroad company, and stock in the company for an equal amount was issued to the county. The First National Bank of Brunswick, Maine, the bona fide holder and owner of ten of these bonds, amounting in the aggregate to $10,000, brought this suit against the county to recover three instalments of interest. The defence was that there was no law authorizing the issue of the bonds, and, as a consequence, that the county was not bound for the payment of either principal or interest. Upon the trial of the cause, the facts were found substantially as already stated, and a judgment was rendered by the District Court of the Territory in favor of the county. This judgment was afterwards affirmed by the Supreme Court, and thereupon the bank brought the case here by writ of error.

We do not consider it necessary to decide whether the governor of Dakota had authority to call an extra session of the legislative assembly, nor whether a law passed at such a session or after the limited term of forty days had expired would be valid, because, as we think, the act of May 27, 1872, is equivalent to a direct grant of power by Congress to the county to issue the bonds in dispute. It is certainly now too late to doubt the power of Congress to govern the Territories. There have been some differences of opinion as to the particular clause of the Constitution from which the power is derived, but that it exists has always been conceded. The act to adapt the ordinance to provide for the government of the Territory northwest of the river Ohio to the requirements of the Constitution (1 Stat. 50) is chap. 8 of the first session of the first Congress, and the ordinance itself was in force under the confederation when the Constitution went into effect. All territory within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of Congress. The Territories are but political subdivisions of the outlying dominion of the United States. Their relation to the general government is much the same as that which counties bear to the respective States, and Congress may legislate for them as a State does for its municipal organizations. The organic law of a Territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on and binds the territorial authorities; but Congress is supreme, and for the purposes of this department of its governmental authority has all the powers of the people of the United States, except such as have been expressly or by implication reserved in the prohibitions of the Constitution.

In the organic act of Dakota there was not an express reservation of power in Congress to amend the acts of the territorial legislature, nor was it necessary. Such a power is an incident of sovereignty, and continues until granted away. Congress may not only abrogate laws of the territorial legislatures, but it may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the Territories and all the departments of the territorial governments. It may do for the Territories what the people, under the Constitution of the United States, may do for the States.

Turning, then, to the particular act of Congress now under consideration, we find that the attention of that body was in some way brought to the fact that the legislative assembly of Dakota had, on the 21st of April, 1871, passed an act to enable organized counties and townships to vote aid to railroads. In addition to this, it was known that the Dakota Southern Railroad Company had been organized as a corporation under certain acts of the territorial legislative assembly, and that votes had been taken under the aid act in some of the counties and townships granting aid to or authorizing subscriptions of stock in this corporation. It is clear that Congress disapproved the policy of the aid act, and was unwilling to have it go into general operation; but to the extent it could be made available for the construction and completion of the main stem of the Dakota Southern Railroad the contrary is distinctly manifested. The act as a whole was 'disapproved and annulled,' but in substance re-enacted by Congress 'for the purpose of validating any vote of aid or subscription' to that company, but 'for no other purpose whatever.' A careful examination of the statute leaves no doubt in our minds on this subject. To make it sure that the organization of the company was complete, the 'Dakota Southern Railroad Company, as organized under and in conformity to the acts of the legislative assembly of said Territory,' was 'recognized and declared to be a legal and valid corporation.' It is then in terms enacted that the provisions of the aid act, 'so far as the same authorize, and for the purpose of validating any vote of aid and subscriptions to said company, for the construction, completion, and equipment of the main stem of said railroad,. . . are hereby declared to be and remain in full force.' And again: 'that said Dakota Southern Railroad Company shall issue to the respective counties and townships voting aid to said railroad, paid-up certificates of stock in the same in amounts equal to the sums voted by the respective counties and townships.' In the light of these distinct and positive declarations and enactments of Congress, it is impossible to bring our minds to any other conclusion than that, when the bonds now in controversy were put out, there existed full and complete legislative authority to bind the people of the county for their payment. No complaint is made of any irregularity in the proceedings under the law. The question in the case is one of power only. As we think, the vote of the people of the county was 'validated' by Congress, and express authority given to issue the bonds for the purposes originally intended. The only change which Congress saw fit to make was to require the company to give stock in return for the donation as voted.

The judgment of the Supreme Court of the Territory will be reversed, and the cause remanded with instructions to reverse the judgment of the District Court and direct a judgment for the plaintiff on the facts found for such amount as shall appear to be due on the coupons sued for; and it is

So ordered.


text: Talk:National Bank v. County of Yankton/Opinion of the Court


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/359

 Rh the dew in order to secure luck, a good complexion, and immunity against witches. The break of this day is also the signal for firing the ling or the gorse, which used to be done in order to burn out the witches fond of taking the form of the hare; and even guns, I am told, were freely used to shoot any game met with on that morning. With the proper charge some of the witches were now and then hit and wounded, whereupon they resumed the human form and remained cripples for the rest of their lives. Fire, however, appears to have been the chief agency relied on to clear away the witches and other malignant beings; and I have heard of this use of fire having been carried so far that a practice was sometimes observed—as, for example in Lezayre—of burning gorse, however little, in the hedge of each field on a farm in order to drive away the witches and secure luck.

The man who told me this, on being asked whether he had ever heard of cattle being driven through fire or between two fires on May-day, replied that it was not known to him as a Manx custom, but that it was as an Irish one, A cattle-dealer whom he named used on Mayday to drive his cattle through fire so as to singe them a little, as he believed that would preserve them from harm. He was an Irishman, who came to the island for many years, and whose children are settled in the island now. On my asking him if he knew whence the dealer came, he answered, "From the mountains over there", pointing to the Mountains of Mourne looming indefinite in the mists on the western horizon. The Irish custom known to my Manx informant is interesting both as throwing light on the Manx custom, and as being the continuation of a very ancient rite mentioned by Cormac. That writer, or somebody in his name, says that Beltane, May-day, was so called from the "lucky fire", or the "two fires" which the druids of Erinn used to make on that day with great incantations; and cattle, he adds, used to be brought to those fires, or driven between them, as a safeguard against the diseases


text:
Wood v. Carpenter

ERROR to the Circuit Court of the United States for the District of Indiana.

The facts are stated in the opinion of the court.

Mr. Andrew L. Robinson and Mr. Asa Iglehart for the plaintiff in error.

Mr. Charles Denby and Mr. J. M. Shackelford for the defendant in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Wood v. Carpenter


text: Talk:Wood v. Carpenter

title: Talk:Wood v. Carpenter