text:
Hardy v. Johnson/Opinion of the Court

This is an action of ejectment for the possession of certain real property, situated in the city of Oakland, in the State of California. The plaintiff below, the defendant in error in this court, alleges in his complaint a seizin in fee and a right to the possession of the entire premises. The proof established and the jury found that he was only seized of an undivided twentieth interest; but the court held that, as the defendants had shown no title, he was entitled to the possession of the entire premises, 'in subordination,' however, 'to the rights of his co-tenants,' and directed judgment to be entered in his favor as against the defendants for the same. The ruling of the court in this particular constitutes the principal error urged for a reversal of the judgment.

The ruling was in conformity with the settled law of the State. Under the allegation of seizin in the complaint, it was sufficient, as determined by repeated adjudications of the Supreme Court of the State, for the plaintiff to establish any interest in the premises which gave him a right of possession. The action of ejectment determines no rights but those of present possession; and that one tenant in common has such rights as against all parties but his co-tenants, or persons holding under them, is not questioned.

On the trial the defendants produced a conveyance of the interest in the premises of some of the co-tenants of the plaintiff, executed after issue joined. The evidence was admitted, subject to the opinion of the court upon its admissibility under the pleadings, and the jury based one of their findings thereon. But the court, in directing the judgment to be entered upon the special verdict, held the evidence inadmissible, and excluded the finding. Its ruling in this particular constitutes the second error assigned for a reversal of the judgment.

This ruling was correct under the system of pleading and practice which prevails in the State courts of California, and which, with some slight modifications, has been adopted by the Circuit Court of the United States for common law cases. By a statute of the State the different forms of action known to the common law are abolished. The plaintiff is required to state in his complaint the facts constituting his cause of action in ordinary and concise language, with a prayer for the relief to which he may deem himself entitled. To the complaint the defendant must answer either by a denial of its allegations or by a statement of any new matter constituting a defence. The fictions of the action of ejectment at common law have no existence. The names of the real claimants and defendants must appear in the pleadings. The complaint must allege the possession or seizin of the premises, or of some estate therein by the plaintiff, on some day to be stated, the subsequent entry of the defendant thereon, and his withholding the same from the plaintiff. A denial of its allegations puts in issue the title of the plaintiff at the date alleged, or at least his title at the commencement of the action. Any title acquired subsequent to the issue thus joined must be set up by a supplemental answer in the nature of a plea puis darrein continuance. No permission to file such supplemental answer was applied for, and there was no error in excluding the title subsequently acquired under the pleadings as they stood.

JUDGMENT AFFIRMED.

title: Hardy v. Johnson/Opinion of the Court


text: Talk:Hardy v. Johnson/Opinion of the Court

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


text:
Iasigi v. Collector

ERROR to the Circuit Court for the District of Massachusetts.

Iasigi & Goddard imported a cargo of wool from the Cape of Good Hope to Boston, which was invoiced, and, on the 16th March, 1860, entered at a price or value at the place of exportation of less than twenty cents per pound, and hence duty free under the act of 3d March, 1857. Certain packages-the 'examination packages,' as they are called-were examined by the appraisers, and the invoice certified 'Right,' and sent to the collector. All but the examination packages were delivered to the importers under the general bond at once; that is to say, on the day of entry, March 16th; and the examination packages on the next day. Subsequently one of the general appraisers at New York having come to Boston, informed the collector there that there had been 'some neglect,' and in consequence of 'information' now given to him, the collector directed a reappraisement. A certain Crocker, 'one of the principal appraisers of the United States, at the port of Boston,' assisted by Mr. Bausch, a wool examiner, of New York, accordingly, went to work to reappraise the wool. They found it in the warehouse of the importers; and having put the word Not before the word Right on the original invoice, returned it to the collector, with the following direction for reappraisement.

'Add, to make market value at Port Elizabeth at date of exportation, on 186 bales, three farthings per pound; on 614 bales, 1/2d. per pound.

CROCKER, Appraiser.'

This addition brought the wool above twenty cents. A duty was accordingly imposed; and this being approved by the collector, notice was given to the importers of the reappraisement, with a demand for the redelivery of the wool under the bond. The importers declined to redeliver the wool, and having made protest, paid the duty, $16,571. The protest contained sixteen grounds of objection to what was done. Among them were these:

1. That the appraisement was not made as of the market value of the principal markets of the country from which the wool came (which statute requires it to be).

2. That it was not made (as statute also requires it to be) as of the date of exportation to the United States; a fact, however, upon which the court did not read the evidence as the counsel did.

No objection was made, in terms, to the fact that the reappraisement was not made 'by the principal appraisers, or by three merchants;' in which way alone, it was contended, as will be seen hereafter, by the counsel of the importers, that it should have been made. But the protest did set forth and object that the appraisement was 'unauthorized by law and illegal in form and substance,' and that it was made 'under the influence, direction and dictation of a person not holding the office of an appraiser for the port of Boston or any other port, and who was not authorized by law to make any examination of the merchandise, or to make and direct any appraisement thereof.'

Suit having been brought against the collector to recover the duties paid to him under protest, the court instructed the jury that, on the whole case, the plaintiffs were not entitled to recover; and the correctness of this instruction was the question on error here.

Mr. S. Bartlett, for the importers:

1. The first question raised is, whether, when an appraisement has been once made, and the merchandise surrendered to the importer, it can, in absence of fraud, afterwards, and for an indefinite time, be again subjected to appraisement, and the duties increased or levied anew?

The act of Congress of August 30, 1842, providing revenue from imports, enacts that,

'It shall be lawful for the appraisers or the collector to call before them, and examine upon oath or affirmation, any importer or other person touching any matter or thing which they may deem material in ascertaining the true market value, or wholesale price, of any merchandise imported, and to require the production, on oath or affirmation, of any letters, accounts, or invoices in his possession relating to the same.'

This court, in commenting on the effect of an appraisement, after citing a former case, has said as follows:

'The appraisers are appointed with powers, by all reasonable ways and means, to appraise, estimate, and ascertain the true and actual market value and wholesale price of the importation. The exercise of these powers involves knowledge, judgment, and discretion. We hold, as was held in that case, that when power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are in general binding and valid as to the subject-matter. The only questions which can arise between an individual and the public, or any person, denying their validity, are, power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive, legislative, judicial, or special, unless an appeal or other revision is provided for by some appellate or supervisory tribunal prescribed by law.'

So as to all questions of fact, even those which are to be derived from commercial information, this court has said: 'The appraisers are by law the tribunal to determine the question. Their decision is conclusive upon the importer as well as the government.'

The question, then, arises: Has the law provided for any 'appeal or revision,' at the instance of the collector, and if so, was the provision of law followed, or attempted to be followed, in this case?

An act of Congress, of May 28, 1830, says as follows:

'If the collector shall deem any appraisement of goods too low, he shall have power to order a reappraisement, either by the principal appraisers, or by three merchants designated by him for that purpose, who shall be citizens of the United States, and cause the duties to be charged accordingly.'

But when may he do this? Clearly but upon the return of the appraisers, and before the collector's fiat that all is 'right,' before, in short, a permit and delivery has been made to the importer. Otherwise, and if the right is unlimited in point of time, innocent vendees into whose hands the goods have passed, may be subjected to an unjust levy.

Again, by the act of Congress last quoted, such new appraisal is to be made 'either by the principal appraisers or by three merchants.' In this case it was done by one appraiser only (Crocker), assisted by an examiner of wool, Bausch, from New York. Consequently, it was not done as the act requires, and was void. If the act of August, 1842, as well as the authorities, did not make it clear that one appraisement, confirmed and acted on, and surrender made of the goods to the importer, is final and conclusive against all parties, yet the entire policy of the revenue acts, sufficiently known without particular citation, which requires prompt action on the part of the importer to have his rights, in case of controversy, settled as against the government before the permit is granted and the property surrendered, demonstrates that nothing is intended to be left for revision or future action. Indeed, any view that should give the collector the right to order reappraisements, except as provided in the act of May 28, 1830, must include the power to exercise such right after duties have been paid and the merchandise distributed for consumption, if haply the collector can find them, as in this case, and of course being unlimited in time, might render the accuracy of such future appraisement wholly precarious.

2. But even if reappraisement, after permit and delivery, was authorized by law, the defects and irregularities of the reappraisement made in this case, are such that it could not be sustained:

I. It was not made as of the date of exportation, viz., the period of the ship's sailing, but is of a period twenty-eight days subsequently.

II. The act of March 3, 1851, enacts that the appraisement shall be made as 'of the actual market value or wholesale price thereof in the principal markets of the country from which the same shall have been imported in the United States.' Now the only return of this reappraisement is on the invoice, and is in these words: 'Add, to make market value at Port Elizabeth at date of exportation.' (Then follows the statement of farthings added.) Now, although the court may not judicially know the fact that there are other ports of exportation in the colony of the Cape of Good Hope, and other principal markets of British Eastern Empire, yet the appraisement itself must clearly show that there are none other than Port Elizabeth, or that the appraisement was made in conformity to the statutes, or it is defective.

3. Is the plaintiff entitled to redress himself, as he sought below to do, by suit? It will be said on the other side that his remedy was by appeal to 'merchant appraisers,' under the act of 30th August, 1842. That statute, indeed, 'provides that, if the importer shall be dissatisfied with the appraisement,. . . the collector shall select two discreet and experienced merchants to examine and appraise.'

But the enactment does not apply to this case. For, if the reappraisement was illegal, then only the original appraisement remains, and from that the importer had no occasion to appeal, since it exempted the goods from duty. Independently of which, parties are not bound, in any case of irregular and improper discharge of their functions by appraisers, to make any appeal whatever, even to merchant appraisers. The law gives an appeal, not to correct irregular proceedings, but to correct, if need be, the errors of judgment or estimates of values committed by the original appraisement. In case of irregularities of conduct, all that is required of the importer is to point them out clearly by protest, and then, if not corrected, and he is compelled to pay the duties, he may at once sue the collector. Burgess v. Converse, in the first circuit, is much to this point. Speaking of an appeal to merchant appraisers, Curtis, J., there says: 'I consider the importer entitled to have both proceedings regular, but I do not think he is bound to take an appeal if the government appraisers have not proceeded in conformity with the authority conferred on them by law. In my judgment, he may, and should in such a case, make his protest and stand upon it, as the ground of refusal to pay the increased duty, and in such a case, the collector would not be justified in exacting the increased duty by an illegal assignment. But if he demands a reappraisement, and that is regular, he waives all objections to the first, which is superseded and rendered unimportant by the second.' Mr. Bates, A. G., contra:

1. There must exist, from a necessary respect to the government's rights, a power in the appraiser to review his appraisement, at least, while the goods remain unsold in the importer's hands. Bartlett v. Kane, in this court, decides that it does exist. That the collector may direct a reappraisement is obvious from the statute of May 28th, 1830, quoted on the other side.

An appraisement unappealed from is conclusive evidence of the value of the goods. Belcher v. Linn, cited by Mr. Bartlett, decides this. And in the term appraisement is included, of course, reappraisement. This is appraisement. If an importer is dissatisfied with the appraisement, he has his remedy by an appeal to merchant appraisers. What was said on the circuit in Burgess v. Converse, should be received with caution. It was not an opinion on a point arising in the case or essential to its decision; for in that case there had been an appeal. It is a view of the law not sustained by any case in this court, and is irreconcilable with the current of the decisions of this court upon the powers and duties of appraisers, and especially with Belcher v. Linn, the latest. In that case, this court, speaking of appraisers, says this paragraph being quoted also on the other side-that 'the only questions which can arise between an individual and the public, or any person denying their validity (i. e., of their acts), are power in the officer, and fraud in the individual.'

2. One of the points taken here-the incompetency of the persons who made the reappraisement-is not set forth distinctly and specifically in the protest. Any matter not so set forth will not be heard on suit. The statute of February 25, 1845, enacts:

'Nor shall any action be maintained against any collector to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant, at or before the payment of the said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.'

3. As respects various matters set forth, the answer is the same already made. The report of the appraisers is conclusive, conclusive not only as to the result, the dutiable value of the goods, but also as to all the elements necessary to form this result; conclusive as to what are the principal markets of the country, as to the date of exportation, the market value of the goods, &c. It is a conclusive finding upon all the facts on which the appraisers are obliged to pass, in order to discharge their duty, i. e., to determine the dutiable value of the goods imported and submitted to them. If an importer is not content with the result, or with any detail of their finding, or with their conduct in any respect, his sole and his sufficient remedy is by an appeal to merchant appraisers in the mode pointed out by the statute. If he does not avail himself of the right of appeal, he has no reason to complain that the government exacts the duties assessed on his goods. His refusal to appeal indicates that in his opinion the appraisement is substantially correct, and that he must rest his claim to recover the duties solely on technical grounds.

Mr. Justice NELSON, after stating the chief facts, delivered the opinion of the court:

title: Iasigi v. Collector


text: Talk:Iasigi v. Collector

title: Talk:Iasigi v. Collector


text:
Iasigi v. Collector/Opinion of the Court

The only question of any difficulty in the case, is whether or not the collector has the power to order a reappraisement of goods imported, after one appraisement, and permit of delivery to the importer, and the actual delivery of the same?

The act of 2d May, 1830, authorizes the collector to order a reappraisement, either by the principal appraisers or by three merchants, &c. The board of officers to make the examination and appraisal of the goods imported may have been changed, but this power of the collector remains unaltered.

It is true, that the appraisal and ascertainment of the dutiable value of the goods are made final and conclusive both upon the importer and the government. But the question still remains, what appraisal or ascertainment of the value is to be regarded as final? It is admitted, if the appraisal was infected with fraud or imposition, it could not be, and the collector would not only be justified, but it would be his duty to order reappraisement, even under the circumstances in which the present one was made.

The interest of the government, as well as a proper regard for the rights of the honest importer, require it. And it seems to us but reasonable, if, from neglect or want of proper evidence or information, on the part of the appraisers, the appraisal be under the proper dutiable value, this power of the collector should be permitted to correct the error. It is true, the exercise of it is usually, and doubtless with few exceptions, previous to the permit to deliver the goods; and must be so, generally, in order to be effective. But the act of Congress conferring the power on the collector, fixes no limit to the period within which it may be exercised, and we think a reasonable discretion should be allowed him.

We see no hardship to the importers in giving a liberal interpretation to this power; for, in practice and in point of fact, the permit his become more a matter of form than of substance. The bulk of the goods are usually delivered in the hands of the importer on their arrival, and previous to the permit under the delivery bond; and though, as a mere question of law, the collector doubtless possesses the power to recall the goods, yet he usually looks to the bond for the security of the duties.

It is not denied but that the goods found in the warehouse of the importer and reappraised were the same that had been entered at the customs, and from which packages had been selected for examination, and we think it would be too limited and rigorous a construction of the power of the collector to hold that, under the circumstances of the case, he was not authorized to make the order complained of. If the goods had passed beyond the reach of the collector, a different question might have been presented. We express no opinion upon such a case.

It has been argued that the reappraisal was not made by the proper officers. The answer is, that, although the protest is quite voluminous, this objection is not specified. If it had been, it doubtless would have been answered by the proofs.

It is further argued, that the appraisal was not made as of the market value of the principal markets of the country from whence the wool was imported. The answer is, the appraisement is conclusive upon this fact, and the court cannot go behind it. The remedy is an appeal by the importers to the merchant appraisers.

It is further said, the date of the period of exportation was not the time adopted by the appraisers in ascertaining the dutiable value. This is a misapprehension. The report of the appraisers, indorsed on the invoice, confines the appraisal at date of exportation.

JUDGMENT AFFIRMED.


text: Talk:Iasigi v. Collector/Opinion of the Court


text: Meyer v. City of Muscatine

title: Meyer v. City of Muscatine


text: Talk:Meyer v. City of Muscatine

title: Talk:Meyer v. City of Muscatine


text:
Meyer v. City of Muscatine/Opinion of the Court

ERROR to the District Court of the United States, for the District of Iowa, the case being thus:

The city of Muscatine was incorporated, A.D. 1851, by the legislature of Iowa, and by its charter made 'a body corporate, and invested with all powers and attributes of a municipal corporation.' 'The legislative authority of the city,' says this charter by its 19th section, 'is vested in a city council;' which council, the charter goes on to declare, 'is invested with the following powers,' the powers being set forth essentially as follows:

'1. To secure the inhabitants against fire, and violations of the law and the public peace; to suppress riots, drunkenness, gambling, and disorderly conduct; and generally to provide for the safety, good order, and prosperity of the city, and the health, morals, and conveniences of the inhabitants.

'2. To impose penalties for the violation of its ordinances.

'3. To establish and organize fire companies, and to provide them with fire apparatus.

'4. To regulat the keeping and sale of gunpowder within the city, and to provide that no building of wood shall be erected within designated parts.

'5. To have the control of the landing on the Mississippi River, and build wharves, and regulate the landing, wharfage, dockage, &c.

'6. To provide for the license, regulation, or prohibition of exhibitions, & c.; billiard tables, ball and ten-pin alleys, and places where any games of skill or chance are played.

'7. To make ordinances in relation to the cleanliness and health of the city.

'8. To regulate cartage and drayage within the city, and make prohibition of animals running at large within the city.

'9. To provide for the establishment and support of schools in the city, and for the government of the same.

'10. To audit all claims against the city; to provide for the keeping of the public money of the city, and the manner of drawing the same from the treasurer.

'11. To establish the grade of the streets, alleys, and wharves.

'12. To prescribe the manner of calling the meetings of the citizens, except for the election of officers.

'13. To appoint street commissioners and officers.

'14. To cause the streets and alleys of the city to be paved.

'15. To borrow money for ANY object in its discretion, if at a regularly notified meeting, under a notice stating distinctly the nature and object of the loan, and the amount thereof, as nearly as practicable, the citizens determine in favor of the loan by a majority of two-thirds of the votes given at the election.

'16. To fill vacancies occurring in any of the city offices by appointment of record, to hold, in the case of election officers, until the next regular election and the qualification of the successor.'

In addition to the power thus given by the charter to borrow money, the legislature of Iowa had, on the 25th of January, 1855, passed certain acts; [the same acts referred to ante, p. 220, Gelpcke v. The City of Dubuque, No. 81.] One is entitled 'An act regulating the interest on city and county bonds.' The first section enacted, 'that railroad companies might issue their bonds at such a rate of interest and sell them at such discount as might be necessary, and that they should remain legal and binding.' The second section, 'that whenever any company shall have received or may hereafter receive the bonds of any city or county, upon subscription of stock by such city or county, such bonds may have interest at any rate not exceeding ten per cent., and may be sold by the company at such discount as may be deemed expedient.'

With this charter and these enactments in force, it was proposed by certain persons that the city of Muscatine, Iowa, should borrow money and subscribe to the stock of the Mississippi and Missouri Railroad; an ordinance was accordingly passed, July 23d, 1855, to take the vote of the citizens, in order to see whether two-thirds of them, as required by the article 15, ante, p. 386, were in favor of borrowing the money. The ordinance enacted essentially as follows:

The election shall be upon the following propositions:

1st. To rescind a vote given, &c., authorizing the council to borrow $45,000, to be subscribed on stock of the Iowa Western Railroad, and also to rescind a vote given authorizing the council to borrow $50,000, to the subscribed on stock of the Muscatine, Iowa City, &c., Railroad.

2d. To borrow for a term of years, not exceeding twenty, on the bonds of the city, at a rate of interest not higher than ten per cent. per annum, $130,000, to be subscribed on stock in the name of the city to the capital stock of the Mississippi ad Missouri Railroad Company.

3d. The vote shall be given by ballot, written or printed, with the words 'For the rescission and loan,' and 'Against the rescission and loan,' and if the requisite number of votes are for the rescission and loan, the council shall cause the bonds to be issued.

Three hundred and twenty-six votes were given for the rescission and loan, and five against it.

The city accordingly issued its bonds, the form of them, somewhat special, being thus:

UNITED STATES OF AMERICA.

$1000.

No. 51.

Be it known that the city of Muscatine owes to Adam Ogilvie, or bearer, the sum of one thousand dollars for money borrowed, the receipt whereof is hereby acknowledged, and which sum the said city of Muscatine hereby promises to pay, at the office of E. W. Clark, Dodge & Co., in the city of New York, on the first day of January, eighteen hundred and seventy-six (January 1st, 1876), with interest on said sum of one thousand dollars at the annual rate of ten per cent., payable semi-annually, on the 1st day of January and 1st day of July in each year; and the faith of the city of Muscatine is hereby pledged for the semi-annual payments of interest and the ultimate redemption of the principal.

Upon the surrender of this bond to A. C. Flagg, treasurer in trust, at any time previous to said 1st January, 1876, the holder hereof will be entitled to ten shares of the capital stock of the Mississippi and Missouri Railroad Company, in satisfaction thereof.

Whereof J. H. Wallace, Mayor of the city of Muscatine, does hereby cerify that by a vote of the legal electors of the said city of Muscatine, at an election held 13th August, 1855, in accordance with an ordinance of the Common Council sanctioning the same, that the said city was authorized to borrow the sum of one hundred and thirty thousand dollars, and to issue its bonds therefor, bearing interest an ten per cent. per annum, and that the above is one of the bonds given for said loan.

In testimony whereof, I have hereunto set my hand and affixed the seal of said city this thirty-first day of December, A.D. 1858.

J. H. WALLACE, Mayor.

[SEAL.]

D. S. JOHNSON, Recorder.

The city of Muscatine will pay the bearer, on the 1st day of January, 1860, twenty-five dollars, at the office of E. W. Clark, Dodge & Co., in the city of New York, interest due on their bond No. 51.

J. H. WALLACE, Mayor.

A number of the bonds thus issued having got into the hands of the plaintiffs, and the interest being unpaid, they brought suit to recover it. The city set up various defences, as follows:1. That there was no authority in the charter of the city of Muscatine under which money may be borrowed to aid in the construction of railroads.

2. Because the interest was made payable in New York city, instead of at the treasury of the city of Muscatine.

3. Because, in the stipulation to pay the interest semi-annually at the rate of ten per cent., the authority conferred by the vote which limited the rate of interest to 'not higher than ten per cent. per annum,' was transcended and a usurious rate agreed to be paid.

4. Because the stock of the Mississippi and Missouri Railroad Company, for which said bonds and coupons were issued, was, without authority from the city, placed in the hands of a trustee and entirely beyond its control.

5. Because, under the authority to borrow a sum of money, no money was ever borrowed by the city, but instead, these bonds were delivered to the officers of the Mississippi and Missouri Railroad Company, and by their agents and brokers sold to the plaintiffs at a price greatly below their par value.

[An amended answer to the claim averred, 'that the said bonds were by the officers of said railroad company, and their agents and brokers, sold to the plaintiffs at a price greatly below their par value; that at the time said bonds and coupons were received by said plaintiffs, they had full knowledge of the fact that said bonds had been issued for the purpose of aiding in the construction of said Mississippi and Missouri Railroad.']

6. Because the ordinance on which the vote for a loan was taken was void, because it submitted three distinct propositions in one, and in such a manner as to cut off an effective opposition from all voters who were against the whole of the propositions.

7. Because, finally, the legislature had no constitutional power to authorize the issue of such bonds, and that hence they are void.

To these defences there was a demurrer, which demurrer the court overruled, giving judgment in favor of the city. On appeal, the questions here were the same as they were below; that is to say, whether the defences set up by the city were sufficient defences to the claim for payment of the coupons in the hands of bon a fide holders for value.

The case was submitted on briefs of Mr. Cook for the bondholders, and of Mr. Richman and Butler for the city of Muscatine; the arguments on both sides being much the same as those in one or the other of the three cases of Gelpcke v. The City of Dubuque, ante, p. 175, or in Mercer County v. Hacket, ante, p. 83. As every reader of this volume, and every inquirer into the obligation of railroad bonds will have read those cases, and will be possessed of the arguments applicable to this case, these arguments need not be repeated here. Some of the arguments in this case having in fact, been transferred to that.

Mr. Justice SWAYNE delivered the opinion of the court:

The demurrer brings under examination the objections taken by the defendant to the validity of the coupons upon which this suit is founded.

These objections will be considered as we proceed.

I. 'That there is no authority in the charter of the city of Muscatine under which money may be borrowed to aid in the construction of railroads.'

The charter gives the city authority 'to borrow money for any object in its discretion, if at a regularly notified meeting under a notice stating distinctly the nature and object of the loan, and the amount thereof, as nearly as practicable, the citizens determine in favor of the loan, by a majority of two-thirds of the votes given at the election.'

When the bonds and coupons were issued, the acts of the legislature of Iowa of the 25th of January, 1855, were in force. These acts in connection with the provision of the charter furnish, in our judgment, a conclusive answer to this objection.

The effect of the acts was considered in the case of Gelpcke et al. v. The City of Dubuque, decided at this term, to which we refer.

II. 'Because the interest was made payable in New York city, instead of at the treasury of the city of Muscatine.'

It was according to the general usage to make such bonds and coupons payable in the city of New York. It added to the value of the bonds and was beneficial to all parties. No legal principle forbids it. The power of a municipal corporation to make any contract, does not depend upon the place of performance, but upon its scope and object. A city authorized to establish gas-works and water works, and to gravel its streets, may buy water, coal, and gravel, beyond its limits, and agree to pay where they are found or elsewhere. The principal power, when expressed, draws to it by necessary implication, the means of its execution. This is a settled rule in the construction of all grants of authority, whether to governments or individuals. If the subject admitted of doubt, we should hold that the city, having acted upon its own construction, and drawn in others to take the securities and advance their money upon it, is now concluded from denying that construction to be the true one.

III. '''Because in the stipulation to pay the interest semi-annually at the rate of ten per cent., the authority conferred by the vote which limited the rate of interest to 'not higher than ten per cent. per annum,' was transcended, and a usurious rate agreed to be paid''.'

This objection has no foundation. When a statute fixes the rate of interest per annum, it has always been held that parties may lawfully contract for the payment of that rate, before the principal debt becomes due, at periods shorter than a year.

IV. 'Because the stock of the Mississippi and Missouri Railroad Company, for which said bonds and coupons were issued, was, without authority from the city, placed in the hands of a trustee, and entirely beyond its control.'

This objection, though urged in the argument, does not arise upon the record. All that appears touching the subject is, that the bond of $1000, as set out in the exhibit attached to the complaint, besides binding the city to pay, provides that the holder, upon surrendering it at any time before maturity 'to A. C. Flagg, trustee,' should be entitled to ten shares of the stock of the railroad company. To such an arrangement there is no legal objection. The city had a right to apply the stock for which the bonds were given, or its proceeds, at any time, in discharge of the bonds.

V. 'Because, under the authority to borrow a sum of money, no money was ever borrowed by the city; but instead, these bonds were delivered to the officers of the Mississippi and Missouri Railroad Company, and by their agents and brokers sold to the plaintiffs at a price greatly below their par value.'

The amended answer avers, 'That the said bonds were by the officers of said railroad company, and their agents and brokers, sold to the plaintiffs at a price greatly below their par value; that at the time said bonds and coupons were received by said plaintiffs, they had full knowledge of the fact that said bonds had been issued for the purpose of aiding in the construction of said Mississippi and Missouri Railroad.'

The city was authorized to issue the bonds in order to borrow money to pay for the stock. If the company chose to receive the bonds in payment for the stock, retaining a lien on the stock until the bonds were paid, there was no legal obstacle in the way of their doing so. The object of issuing the bonds was thus accomplished, and no injury was done to those who were to pay them. It is neither averred in the answer, nor claimed in the argument, that the railroad company took them at less than their face. It does not appear that any one objected then, and no one can object now. After the bonds passed into the hands of the railroad company, the company was at liberty to sell them on such terms as it might deem proper.

The act of January 25, 1855, by a clear implication, authorizes cities to give their bonds in payment of their subscriptions of railroad stock, and expressly authorizes the bonds to 'be sold by the company at such discount as may be deemed expedient.' What is implied has the same effect as what is expressed.

VI. 'The ordinance on which the vote for a loan was taken was void, because it submitted three distinct propositions in one, and in such a manner as to cut off an effective opposition from all voters who were against the whole of the propositions.'

The record shows that all the votes cast, except five, were in favor of the loan. The city and citizens adopted and acted upon the ordinance as valid and sufficient. The citizens voted, and the city authorities issued the bonds. No one interposed to prevent their issue. It is not questioned that all the parties acted in good faith, and the city can not now be heard to object to the regularity of its own proceedings. A party taking the bonds was bound to look to the legal authority under which the public agents acted. If that were sufficiently comprehensive, he had a right to presume that those empowered to act and acting under it had complied with its requirements.

VII. 'It is insisted that the legislature had no constitutional power to authorize the issue of such bonds, and that hence they are void.'

This is sufficiently answered by the opinion of this court in Gelpcke v. City of Dubuque, decided at this term.

The judgment below must be reversed, and the cause remanded for further proceedings, in conformity to this opinion.

JUDGMENT ACCORDINGLY.

I dissent from the judgment and opinion of the court just delivered.

In the case of Gelpcke v. City of Dubuque, decided at this term, I have given the reasons which I thought required this court to follow the recent decisions of the Supreme Court of Iowa, in holding that all bonds given by municipal corporations for stock in railroad companies were void, for want of any constitutional authority in the legislature of that State to enact the laws under which said bonds were issued. I do not now propose to add anything to what I there said upon that subject, but refer to it as fully applicable to the present case.

In the case now before us, however, it is not claimed that there was any act of the legislature authorizing the city of Muscatine to take stock in railroad companies. The principle on which the validity of the bonds is sustained is, that the charter of the city confers on it an unlimited right to borrow money, and that having issued its bonds, which have been sold in the market, they must be held to be valid, although the purchaser knew they were issued for railroad stock.

The plea of the defendant is, that the city of Muscatine 'had no authority to assist in building a railroad, or to take stock in the same, nor to issue the bonds of the city to pay for stock in the same,' and that at the time said bonds were sold to plaintiffs by the officers of the railroad company, they had full knowledge that said bonds had been issued for the purpose of aiding in the construction of the Mississippi and Missouri Railroad. The plaintiffs demurred to this plea, and the District Court overruled the demurrer. This court holds the plea to be bad, and the demurrer well taken.

The authority to borrow money by the city of Muscatine is found in the 19th section of its charter. That section undertakes to enumerate, in sixteen subdivisions, all the powers intended to be conferred on the City Council. They are those which are usually conferred on such bodies, and none others.

Among them is the authority to establish fire companies, and provide them with engines, to build wharves, to provide for the establishment and support of schools, to audit all claims against the city, to establish the grade of streets and alleys, and wharves, and to cause them to be paved. The fifteenth subdivision is in the following language: 'To borrow money for any object in its discretion, if at a regularly notified meeting, under a notice stating distinctly the nature and object of the loan, and the amount thereof, as nearly as practicable, the citizens determine in favor of the loan, by a majority of two-thirds of the votes given at the election.'

It seems to me that the discretion here confided to the council as to the objects for which money may be borrowed, must be construed in one or the other of two modes.

1. That the discretion is in its largest sense unlimited, except by the voice of two-thirds of the voters. This construction would authorize the city to borrow money to enter into the banking business, to speculate in gold, or flour, or grain, or to establish mercantile houses, or to build steamboats, and enter into the trade which flows past the city, on the waters of the Mississippi River, or to organize mining companies in Colorado. In short, to take the money or property of the citizen against his will, and employ it in any of the diversified pursuits by which the individual man makes, or fails to make, money.

A proposition which leads directly to such consequences cannot be supposed to have entered, for a moment, into the minds of the legislature. It makes every man's entire property, within the limits of the city, the common property of the community, and converts the citizen, against his will, into a member of one of those Shaker or French communities in which the individual merges his rights into those of the association. No such construction can be tolerated, unless it is impossible that the legislature could have meant nothing else.

2. That the objects on which this discretion may be exercised must be limited to the execution of some of the powers granted in the charter.

I do not propose to cite the numerous authorities which settle that, as matter of law, this is the rule of construction applicable to the case. It is so well known that it would be a waste of time to refer to adjudged cases.

To establish fire companies, and provide them with engines, is a proper and indeed a necessary object to which the money or the credit of the city may be applied. The building of wharves also requires more money than can be well levied at one tax in such a town as Muscatine. And in building school-houses, and other expenditures necessary to establish schools, the citizens may well be consulted, whether the credit of the city may be used. So of grading and paving the streets of the city. All these are purposes, and perhaps there are others enumerated in the act, about which this discretion may well be exercised. It is not necessary, then, to impute to the legislature the injustice and absurdity of intending the first construction of the charter above mentioned. Here are certain powers conferred, objects to be accomplished by the council named in fourteen paragraphs. The fifteenth authorizes them to borrow money for any object in their discretion, if sustained by a two-thirds vote of the citizens. Nothing can be more reasonable than to suppose that the discretion so conferred was limited to the objects enumerated in the fourteen preceding paragraphs.

None of these include railroads; nor does any of them include anything from which railroad enterprises can possibly be implied. In order to get the power to borrow money to build railroads, some other authority than that given by this section must be shown. I do not think any such exists, nor has any been pointed to by counsel, unless it be that such a power is inherent in municipal corporations without regard to their charters. I do not think, at this day, any court can be found to hold such a doctrine.

But what is wanting in original power to issue these bonds is supposed to be supplied as a ratification or confirmation of them, by the act of January 25, 1855, which may be seen on page 223 of the Revision of 1860 of the laws of Iowa. This is entitled, 'An act regulating the interest on city and county bonds.' The first section declares that railroad companies may issue their own bonds at such a rate of interest, and sell them at such discount as may be necessary, and they shall remain legal and binding. Section 2 the one relied on in this case-is as follows: 'That whenever any company shall have received, or may hereafter receive the bonds of any city or county, upon subscription of stock by such city or county, such bonds may have interest at any rate not exceeding ten per cent., and may be sold by the company at such discount as may be deemed expedient.'

It is obvious that the whole purpose of the statute was to relieve such bonds as might have been, or might hereafter be issued, from liability to the charge of usury. This is not the language in which the legislature or any one else would undertake to make valid bonds, issued without any authority whatever in the municipal body. The bonds in this case were issued before the act passed. It says never a word about ratifying them or confirming them, or making good the want of power to issue them. It is said, however, that the act itself implies that there was authority to issue such bonds in the cities and counties. This is a clear non sequitur. An examination of the acts of the legislature will show that the cities of Dubuque, of Keokuk, of Davenport, and perhaps many others, had been authorized by the legislature to take stock in railroads, and to issue bonds in payment of it, and the Supreme Court of the State had then twice decided that, by a general law, all the counties in the State could do so.

These cities, then, and all the counties having the authority to issue bonds for stock, and some of them having done so, and others intending to do so, the legislature meant no more than to say, that in the cases where they had been, or might hereafter be issued lawfully, in other respects, they should not be held usurious because of the rate of discount at which they might be sold.

To infer from this act that the legislature intended to make valid the bonds of the city of Muscatine, issued without any authority, is a stretch of fancy, only to be indulged in railroad bond cases, and which it is hoped may be confined to them as a precedent. The act applies to bonds issued after its passage as well as before, and in precisely the same terms. Its effect is the same on both. Now will it be urged that this was intended to confer on all the cities whose charters had theretofore denied them such power, the right to take stock in railroad enterprises? Is this the language in which an act of such importance, and affecting so many persons and so much property, would be framed? Yet it is by such latitudinary construction of statutes as this that it is attempted to fasten upon owners of property, who never assented to the contract, a debt of twenty millions of dollars, involving a ruin only equalled in this country by that visited upon the guilty participants in the current rebellion.


text: Talk:Meyer v. City of Muscatine/Opinion of the Court


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Woods v. Freeman

FREEMAN sued Woods in ejectment, in the Circuit Court for the Northern District of Illinois, to recover possession of the southwest quarter of section three (3) of township eight (8) north of range three (3) west of the fourth principal meridian, situated in Warren County, in that State. At the trial, Freeman showed title in himself by a regular chain of conveyances from the United States. Woods, to defeat this title, insisted that the tract of land had been regularly sold for the non-payment of taxes for the year 1852, and the validity of the sale was the main question in the case.

By the statute law of Illinois, the collector of taxes reports to the proper court a list of lands on which the taxes remain due and unpaid, and if no good reason is interposed a judgment is entered on his assessment and return, in the name of the State of Illinois, against the several tracts of land for the sum annexed to each, being the amount of taxes, interest, and costs due thereon, and a precept to sell is ordered.

The following illustration of the collector's assessment and return will show the nature of the document on which judgment is in these cases given; though, in the present case, the reader will observe that neither in the column meant to denote the 'total' of the tax, nor in others where money is meant to be indicated, is the word 'dollars' or 'cents' given, nor any character, such as $ or cts., or abbreviation representing them. And, that while a conjecture or inference may be made that the figures indicate dollars or cents, the conclusion rests finally on conjecture or inference only.

Patentee's Part of Section. Acres. Valuation. State State County   Co. Total.

name. section. spro. special. tax. special.

Erastus Brown, W. S. N. E.  3   8974 180  1 09   72  1 08 .... 2 89

Elisha Sibree, S. W.  3  160  320  1 93  1 28  1 92 .... 5 13

The tract of land in controversy had been sold for taxes, and a deed made to one Harding, through whom Woods claimed. To sustain the deed, Woods offered in evidence the record of the judgment of the county court of Warren County against the tract of land for the unpaid taxes of 1852, the same being in form as above. On the objection of Freeman, the court excluded the evidence, and Woods excepted. Verdict and judgment having been given for Freeman, the correctness of the refusal to admit the evidence was the chief point on error here.

Mr. Merriman, for the defendant in error:

Mr. Justice DAVIS delivered the opinion of the court, and after stating facts, proceeded thus:

title: Woods v. Freeman


text: Talk:Woods v. Freeman

title: Talk:Woods v. Freeman


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Woods v. Freeman/Opinion of the Court

There was no 'mark, word, or character' on the record of the judgment to indicate the amount of taxes for which it was rendered against the land, which was undoubtedly the reason why the court rejected the evidence.

In the construction of local statutes affecting the titles to real estate, this court recognizes the binding force of the interpretation given by the highest judicial tribunal of a State.

This question has been expressly decided by the Supreme Court of Illinois. That court has held, 'that a judgment for taxes is fatally defective which fails to show the amount of tax for which it was rendered, and that the use of numerals, without some mark indicating for what they stand, is insufficient.' The judgment was therefore void, and the court was right in excluding the evidence from the jury.

AFFIRMED WITH COSTS.

title: Woods v. Freeman/Opinion of the Court


text: Talk:Woods v. Freeman/Opinion of the Court


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United States v. Moreno

ON an appeal from the decree of the District Court of the United States for the Southern District of California, the record disclosed the following facts: On the 5th of April, 1845, Moreno submitted to Pio Pico, then Governor of the Department of California, a petition, wherein he set forth that he had 'denounced, in due form, a square league of land situate between Temecula and the Lagoon called Santa Rosa, to which, after previous judicial investigation,' he prayed 'to be awarded the respective title, on the ground that it is absolutely vacant and without any availableness.' The governor ordered the petition 'to be sent for the report of' the proper officer. The officer reported that the land was 'in an entire vacant state.' The governor thereupon ordered the petition to be returned to Moreno, that he might annex a plat of the land,-the application to come again before the government. Moreno was authorized to occupy the land 'provisionally,' and it was added, 'meanwhile the mentioned title-deed is being made out.'

On the 31st of January, 1846, Moreno presented the governor a new petition with the required plat. In this petition he says: 'In accordance with the decree your excellency thought fit to give in the month of April, in the year 1845, requiring me to present the plat of the land I occupy provisionally, called Santa Rosa, I hereby, with the deepest submission, accompany my petition and the plat, that your excellency may have the goodness to make out the title-deed of ownership to me of the land bordering on Temecula, the Lagoon, and Santa Margarita, not naming the number of leagues, as I might be mistaken, but I ask that the land which has no owner, and which I demand in due form, be set apart for my individual benefit and that of my family.'

The governor ordered 'the title-deed to be issued and given to the interested party with obligation to amend the plat.' On the day last mentioned, a deed was issued, subject to the approval of the Departmental Assembly. It purported to be subscribed by the governor and secretary, but there were no subscribing witnesses to it. It contained with others the following clauses:

'The land donated to him is the same as exhibited in the plat attached to this expediente, and borders on land of Temecula, on the Lagoon, and on Santa Margarita.

'The judge who shall possess him of it will cause it to be measured conformable to ordinance, and give notice to the government of the number of leagues (sitios de ganado mayor) it may contain.

'Consequently, I order that this title-deed, being held firm and valid, it be entered in the respective book and delivered to the interested party for his security and other purposes.'The subject was submitted to the Departmental Assembly, and on the 3d June, 1846, that body approved and confirmed the grant.

It appeared by the testimony of one Foster, in early life a justice of the peace, but who had been for many years a 'ranchero' in California, that 'Santa Rosa' was the name given to a well-known tract; that it adjoined another well-known tract, called 'Temecula,' on the east, a second, known as 'Santa Margarita,' on the west, and that a third, called 'La Laguna,' stood off in a direction northeasterly. This was confirmed by two other witnesses.

Moreno resided upon and cultivated the land from the time he was authorized to occupy it until the acquisition of the country by the United States.

After the acquisition he presented a petition to the Board of Commissioners, established by the act of Congress of 3d March, 1851, to ascertain and settle private land claims in California, to have his title confirmed, pursuant to the provisions of that statute. The commissioners having confirmed it, an appeal was taken by the United States to the District Court; and that court having affirmed the report of the commissioners, the United States brought the case here by appeal.

It was objected on behalf of the United States to the decree of the District Court:

1. That the 'grant is proved, by secondary evidence of handwriting, without the legal basis for its introduction having first been laid;' this objection being made in the case, however, in this court only.

2. That the location and quantity of the land are entirely uncertain both in the grant and in the dise no.

Mr. Willes, for the United States.

Mr. Justice SWAYNE delivered the opinion of the court:

title: United States v. Moreno


text: Talk:United States v. Moreno

title: Talk:United States v. Moreno


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United States v. Moreno/Opinion of the Court

The first objection refers to the proof of the signatures of the governor and secretary to the deed to Moreno, which was made by persons acquainted with their handwriting, without those officers being called or their absence accounted for.

There are no subscribing witnesses to the deed. It was therefore allowable, according to the common law, to prove the signatures by any one acquainted with their handwriting. Such evidence was as competent and valid as the testimony of the writers themselves. It is in no sense secondary evidence. Were the rule otherwise, it is a sufficient answer to the objection, that it does not appear that the evidence was objected to when it was offered and received in the court below. If no objection be made, the existence and contents of a record may be proved by parol evidence, and a court of errors will not for that reason reverse the judgment. The testimony is found in the record, without any exception, and must have its legitimate effect. In this class of cases, where the documentary proof of title is plenary, and no suspicion is raised as to its genuineness, it is the settled rule of this court to regard such evidence as both competent and sufficient. We have no doubt of the genuineness of all the papers composing this espediente. No question was made upon the subject in the court below.

It is further objected to the decree that 'the location and quantity of the land are entirely uncertain, both in the grant and the dise no.'

The tract is described in the titulo as known by the name of Santa Rosa, and as bounding upon Temecula, the Lagoon, and Santa Margarita. The petitioner asked for a title to all the vacant land in that locality, and it was conceded to him accordingly.

It is proved by the testimony of three witnesses that Santa Rosa was a well-known rancho; that Temecula, the Lagoon, and San Margarita were well-known contiguous ranchos, and that there was not the least difficulty either in identifying Santa Rosa, or in ascertaining its boundaries. There is no contradictory evidence upon the subject. The District Court held the evidence to be sufficient, and we concur in that opinion.

The record presents every link in the chain of a perfect espediente. There is a petition with a dise no, an order of reference, an informe by the proper officer, a decree of concession, a titulo, and the approval of the Departmental Assembly.

The Surveyor-General of California certifies that the espediente is copied from the archives in his possession. It is not necessary to the validity of the title that the land should have been surveyed and the quantity ascertained.

California belonged to Spain by the rights of discovery and conquest. The government of that country established regulations for transfers of the public domain to individuals. When the sovereignty of Spain was displaced by the revolutionary action of Mexico, the new government established regulations upon the same subject. These two sovereignties are the spring heads of all the land titles in California, existing at the time of the cession of that country to the United States by the treaty of Guadalupe Hidalgo. That cession did not impair the rights of private property. They were consecrated by the law of nations, and protected by the treaty. The treaty stipulation was but a formal recognition of the pre-existing sanction in the law of nations. The act of March 3d, 1851, was passed to assure to the inhabitants of the ceded territory the benefit of the rights of property thus secured to them. It recognizes alike legal and equitable rights, and should be administered in a large and liberal spirit. A right of any validity before the cession was equally valid afterwards, and while it is the duty of the court in the cases which may come before it to guard carefully against claims originating in fraud, it is equally their duty to see that no rightful claim is rejected. No nation can have any higher interest than the right administration of justice.

AFFIRMED.


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


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Bronson Soutter v. La Crosse and Milwaukee Railroad Company

BRONSON along with one Soutter had filed their bill in the District Court of the United States for the District of Wisconsin (the Circuit Court system not being at the time introduced into that region, but the District Courts having Circuit Court powers), to foreclose a mortgage which had been given by the La Crosse and Milwaukee Railroad Company on a portion of their road, called the Eastern portion; the Milwaukee and Minnesota Railroad Company being also made defendants in the suit. The mortgage had been given to secure the holders of bonds which the former company had issued in large amounts. The evidence in the case was very voluminous, the issues complicated, and the cause severely contested. The court below had given to it patient investigation. On the 13th January, 1862, a final decree of foreclosure was entered in the said District Court, in favor of the complainants in the suit, and an appeal was taken by those complainants to this court on the 17th of the same month. The Milwaukee and Minnesota Railroad Company also, one of the defendants in the suit, took a cross-appeal on the 14th of September following.

On the 12th of June, 1863, pending the above appeals, the District Court entered an order in the cause of Bronson and Soutter against the companies, & c., on the petition of a third company, the Milwaukee and St. Paul Railroad Company, not a party to the suit, directing a receiver, into whose hands the La Crosse and Milwaukee Railroad and its assets had been placed, on filing the bill for the foreclosure of the mortgage, to turn over the road, its appurtenances and rolling stock, to them, the petitioners; and also directing that this last-named company, subject to the orders of the court, should operate this Eastern division of the road (the one covered by the mortgage), in connection with the Western division; and further, that the same company should, out of the revenues of the road, keep the rolling stock in good order and condition, and defray all running expenses, &c.

On the 5th day of October, 1863, another order was entered in the same cause, purporting to be on behalf of the appellants, directing that after disbursements of moneys arising from revenues of the Eastern division of the road to previous incumbrances and necessary expenses, the receiver pay to the holders of the bonds secured by the mortgage their proportionate share of the surplus, if any; all such payments to be credited on the decree of the court in the cause, or on such decree as might be eventually made, if the present decree should be reversed or modified; and on the 26th October another order was made directing the receiver to report, on the first Monday of January, the amount of moneys in his hands after paying previous incumbrances, &c.

A motion was now made in this cause by the appellees in the first appeal, and appellants in the cross-appeal, to this court, for a writ of prohibition to the District Court, enjoining it against any further proceedings on the order of the 12th of June, and of the 5th and 26th of October. The motion was placed mainly upon the ground that the District Court possessed no jurisdiction to entertain the motion or to make the orders; and that its proceedings are coram non judice and void.

The question involved the construction of two acts of Congress: the first passed July 15, 1862 the second passed March 3, 1863.

The first act provided for extending the Circuit Court system of the United States to the State of Wisconsin, and which included it in the Eighth Circuit. One section of this act-the second provides that so much of any act of Congress as vests in the District Courts of the United States (of which the district in question is one) the powers and jurisdiction of the Circuit Courts, be and the same is hereby repealed. Another section-the third-provides that all actions, suits, prosecutions, causes, pleas, process, and other proceedings, relative to any cause, civil or criminal (which might or could have been originally cognizable in a Circuit Court), now pending in or returnable to the several District Courts (of which the district in question is one), acting as Circuit Courts, on the first day of October next, shall be and are hereby declared to be transferable, returnable, and continued to the Circuit Courts, &c.

[This court had already held, at the last term, in a case in which the question arose, that the second section repealed in terms all the Circuit Court powers and jurisdiction of the District Courts.]

The second of the two acts referred to was entitled 'An act to enable the District Courts of the United States to issue executions and other final process in certain cases,' and provides, 'that in all cases wherein the District Courts had rendered final judgments or decrees prior to the passage of the act of 15th July, 1862, and which cases might have been brought in the Circuit Courts, the District Courts shall have power to issue writs of execution or other final process, or to use such other powers and proceedings as may be in accordance with law, to enforce the judgments and decrees.'

Against the motion it was argued that the act of July, 1862 the first act-gave the District Court, in terms, the right not only to issue writs of execution and other final process, but the right to use such other powers and proceedings as would enforce decrees which they had rendered prior to July 15, 1862; that the decree of foreclosure in this case was rendered prior to that date,-was made on the 13th of January preceding,-more, therefore, than six months prior; that it came accordingly within the very terms of the act.

Mr. Carpenter, contra.

Mr. Justice NELSON, after stating the case, delivered the opinion of the court:


text: Talk:Bronson Soutter v. La Crosse and Milwaukee Railroad Company


text:
Bronson Soutter v. La Crosse and Milwaukee Railroad Company/Opinion of the Court

The question involves the construction of two acts of Congress.

After the decision of this court at the last term, it cannot be pretended that the District Court possessed any power, after the act of 15th July went into effect, to grant the orders complained of, unless it is found in the subsequent act of 3d March, 1863.

It is supposed that the orders are warranted by the last clause of the act, namely, 'or to use such other powers and proceedings as may be in accordance with law, to enforce the judgments and decrees.' We do not agree to this construction. The obvious meaning and intention of this clause is, to provide for the use and exercise of such powers as might be necessary, after the issuing of execution or other final process, in order to insure the execution of the process; such as are necessary to regulate and control the ministerial duties of officers in the execution of final process. The exercise of such powers are frequently necessary, and are familiar to the profession and the courts, and when authority was given to the District Courts under this act to issue execution on final judgments or decrees that had already been rendered in their courts, it was fit and proper to confer this additional power, otherwise the final process might be unavailable. But if other powers, beyond the enforcement of the ministerial duties of the officers, in the execution of final process, become necessary, recourse must be had to the jurisdiction of the Circuit Court. We are also of opinion that, according to the true construction of the act, the judgments or decrees there referred to are those disposing of the whole case, so that nothing is left to be done but to issue the final process; that if any proceedings remain to be taken for the purpose of completing the final disposition of it, the case or suit pending is not one within the provisions of the act. It belongs to the cognizance of the Circuit Court.

Another reason why this particular case is not within the provisions of the act of the 3d March is, that the District Court, even if it had jurisdiction of the proceedings, would not be warranted in taking any steps in the execution of the decree in favor of the appellants. They having appealed from the decree, it would be against all reason and principle to permit them to proceed in the execution of it, pending the appeal. They assert the decree is founded in error, and for that reason should not be executed, but should be reversed and corrected in the appellate tribunal. The appeal suspends the execution of the decree. This is not a case where security is to be given in order to supersede the execution. That rule applies in cases where the decree or judgment is against the party appealing, and who desires to suspend the issuing of execution by the adverse party until the appeal is heard and determined. It is true that the adverse party in this cause has entered a cross-appeal, but, as the appeal already taken had superseded the execution, a bond in the cross-appeal would have been an act of supererogation. It would have been otherwise if the complainants, in whose favor the decree was rendered in the court below, had not appealed.

To guard against misconstruction in respect to the powers of a court having jurisdiction over the subject-matter, and where a decree has been rendered affecting the property in litigation-the road in this case-and an appeal is taken to this court, as the property in controversy is not brought into the appellate tribunal, but remains in the custody and care of the court below, it is agreed that full power exists in that court, pending the appeal, to adopt all proper and judicious measures to protect and preserve it from waste or loss. For this reason there can be no well-founded objection in the present case to the running of the road, and the reasonable application and expenditure of its revenues for that purpose. Beyond this, any appropriation of the revenues is not warranted. They should be reserved for such disposition as may be directed by the final decree in the cause.

For the reasons above given, we are entirely satisfied, on the facts set forth in support of this motion, and upon which it is founded, that the District Court has not only misconstrued its powers under the acts of Congress in question, but has overlooked the effect of the appeal from the decree in their favor by the complainants below in the first entitled cause, and is acting under that decree upon a misapprehension of its powers, and without authority of law.

The only remaining question in the case is as to the proper remedy to be applied. We do not doubt but that the learned court below is acting upon a sincere conviction that it possesses full power and authority to make the several orders complained of, and that it is influenced by a high sense of duty, and what is believed to be for the best interest of all parties concerned in this most complicated, difficult, and severely contested cause, and that it needs but to be advised by the opinion of this court on the motion, to conform to the views of the court as there expressed. For the present, therefore, we shall withhold the appropriate remedy, with liberty to the counsel to apply hereafter to the court if necessary in the matter.

1. I agree that no writ of prohibition ought to issue on this cause, and that the motion for such writ must be refused.

2. As to the advice proffered in the court below, I do not agree. There are no facts before us on which we can, judicially, make any order binding the parties or the District Court, nor is any motion before us calling for action on the part of this court, except the motion for a writ of prohibition. I am, therefore, unwilling to give any opinion (or rather advice), offered by the majority of the court.

Besides the branches of the case presented as in the preceding pages, another part of the case, involving chiefly questions of fact, and among these largely questions of accounts and of fraud-the fact part, as we may style it, of the controversy was heard and decided in an equity suit at this term. It is this part of the case which, in connection with the discussion upon it, invited, probably, the characterization above given of the suit as a 'most complicated, difficult, and severely contested cause.' The record of the case filled more than one thousand large 8vo. pages, of small pica type, set 'solid;' a record, therefore, itself greatly larger than the whole of the present volume. The discussion of the case, too, by counsel, consumed no small fraction of a five months' term. The Reporter presumes that he need make but slight apology for not reporting this part of the case in existing circumstances. The hearing and discussion took place some months before he had the honor to enter upon the office which, by the gracious invitation of the court, he now holds. Without having heard the discussion it would be impossible for him to understand a case such as he has described; and without at least the belief that he understood it, absolutely so, he hopes, for him to attempt the presentation of it.


text: Talk:Bronson Soutter v. La Crosse and Milwaukee Railroad Company/Opinion of the Court


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United States v. Yorba

THIS was an appeal by the United States from the decree of the District Court for the Southern District of California.

The respondent claimed a tract of land, called La Sierra, situated in the present county of Los Angeles, State of California; and in October, 1852, presented a petition to the Board of Commissioners, created by the act of March 3d, 1851, to ascertain and settle private land claims in California, asking for the confirmation of their title. In November, 1854, the board rejected his claim; but on appeal to the District Court the claim was, in December, 1856, adjudged valid, and confirmed to the extent of four square leagues. From this decree the appeal was taken.

In support of his claim the respondent produced, from the archives of the former government, in the custody of the Surveyor-General of California, his petition to the governor for the land, the reference by him to the local authorities for information, and their reports on the subject; also, various proceedings had with reference to an adverse interest in the land, asserted by the widow of his deceased brother, and a draft or copy of the grant issued. He also produced the grant delivered to him, which was issued by Governor Pio Pico on the 15th of June, 1846. It is signed by the governor, and tested by his secretary of state; but neither the governor nor secretary were called to prove the execution of the grant. The genuineness of their signatures was proved by a third party, no objection being taken to its sufficiency at the time by the law agent of the United States, who was present at the examination of the witness.

The grant was, apparently, much in the form common to these grants, except that it had not the usual requirements or conditions, requiring cultivation, inhabitancy, and the construction of a house within a year.

The respondent also proved that he had been for several years previous to receiving the grant in the occupation and use of the land in connection with his deceased brother.

Mr. Wills, for the appellants: The United States object to the decree of confirmation in this case for several reasons:

1. The grant is proved only by secondary evidence of the handwriting of the governor and his secretary, without any foundation having been laid for dispensing with the primary evidence.

2. It is void, as against the United States, because made after May 13, 1846. No genuine or valid grants of lands in California were made by Mexican authority after May 13, 1846. This fact may be proved, first, by the admission of the Mexican government during the negotiation of the treaty of Guadalupe Hidalgo.

The evidence on the subject is found in the diplomatic correspondence of our government in relation to the treaty.

Mr. Buchanan, Secretary of State, in his letter of April 15, 1847, to Mr. Trist, our diplomatic agent, while transmitting him a draft of the proposed treaty of peace with Mexico, instructs him as follows:

'The rights of the persons and property of the inhabitants of the territory over which the boundaries of the United States shall be extended will be amply protected by the Constitution and laws of the United States. An article, therefore, to secure those rights has not been inserted in the project; but should this be deemed necessary by the Mexican government, no strong objection exists against inserting in the treaty an article similar to the third article of the Louisiana treaty. It might read as follows: 'The inhabitants of the territory over which the jurisdiction of the United States has been extended by the fourth article of this treaty shall be incorporated into the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.' In the event of the insertion of this article, it would be proper to add to it the following: 'Provided, That all grants or concessions whatever of any lands made or issued by the Mexican government since the thirteenth day of May, one thousand eight hundred and forty-six, within the said territory, shall be absolutely null and void.' The date might, if necessary, be changed from the day when Congress recognized the existence of the war to the month of September, 1846, when the American forces took possession of California.'

Mr. Trist, in his letter of January 25, 1848, to the Secretary of State, transmitting the treaty of peace negotiated by him, on the point in question, says:

'With respect to grants of land made by the Mexican authorities, the proviso contained in my instructions was strenuously objected to upon a point of national honor and decorum. No such grants had been made since the 13th May, 1846. This they knew, and consequently the proviso could have no practical effect. But it implied that they had been made, or might have been made, and that, nevertheless, the government committed the injustice of revoking them; which, in fact, it had authority to do. Moreover, it involved an acknowledgment that, from the day when hostilities broke out on the north of the Rio Bravo, the Mexican government had lost the right to make grants of land in any part of its territory subsequently occupied by us. Feeling the force of these objections, I requested to make sure of the fact stated by them; and also in regard to no grants having been made in Texas since the revolution, which had been incidentally mentioned by one of them (the Mexican negotiators). And this having been done, in a manner which left no shade of doubt on their minds, the declaration which will be found at the end of ART. 10 was agreed upon, in lieu of the proviso.'

That declaration is in these words:

'The Mexican government declares that no grant whatever of lands in Texas has been made since the second day of March, one thousand eight hundred and thirty-six; and that no grant whatever of land, in any of the territories aforesaid, has been made since the thirteenth day of May, one thousand eight hundred and forty-six.'

This declaration of the fact in question is the more valuable from the circumstance that while Mexico was unwilling to stipulate that all grants of land in California made after May 13, 1846, should be null and void, it was nevertheless willing to declare, and did declare the fact, that no such grants had been made. It is also entitled to credit because made by the party most interested in knowing, after examination, with the best sources of information within its reach, and with opportunity, during a period of nearly two years, to ascertain the truth of the fact.

But it may be objected that the tenth article of the treaty, which contained this declaration, was rejected by the Senate of the United States, and that, therefore, it is inoperative in a question of this kind. This objection misconceives the argument. If the invalidity of all grants of land in California made after May 13th, 1846, was urged on the ground of a treaty stipulation to that effect, the objection now made would be unanswerable. But it is not placed on that ground. Mexico was not willing to place it on that ground; neither are we. We place it on the ground of the fact, attested by Mexico herself. The rejection of the article of the treaty containing this statement of fact is, therefore, immaterial The fact still remains unchanged in all its original force, and with all its original consequences. Doubt on this point is dispelled when we learn the reason why the tenth article of the treaty was rejected. To the first clause of the first paragraph of the tenth article there was no objection. It simply declared the doctrine of international law in cases of the cession of territory, and was afterwards embodied in the treaty in another form. To the last paragraph containing the declaration quoted there could be, and there was, no objection on the part of the United States, because it was for their benefit, and was inserted, as we have seen, at the instance of our Secretary of State. The objection to the article, as a whole, was to another part of it, which stipulated for an extension of time in favor of the grantees of land in Texas, California, and New Mexico, under grants previously made, for the performance of the conditions contained therein, to take effect from the exchange of the ratifications of the treaty.

This we know from a variety of sources.

I. From the message of the President of the United States, submitting the treaty to the Senate, in which he recommends the rejection of the tenth article of the treaty for the reason already stated. 'To the tenth article of the treaty,' says he, 'there are serious objections, and no instructions given to Mr. Trist contemplated or authorized its insertion. The public lands within the limits of Texas belong to that State, and this government has no power to dispose of them, or to change the conditions of grants already made. All valid titles to land within the other territories ceded to the United States will remain unaffected by the change of sovereignty; and I therefore submit that this article should not be ratified as a part of the treaty.'

II. We know it from the letter of the Secretary of State of March 18, 1848, to the Mexican Minister of Foreign Relations, explaining the causes of the amendments to the treaty made by the Senate, and, among others, the rejection of the tenth article. Thus it reads:

'The third amendment of the Senate strikes from the treaty the tenth article. It is truly unaccountable how this article should have found a place in the treaty. That portion of it in regard to lands in Texas did not receive a single vote in the Senate. If it were adopted it would be a mere nullity on the face of the treaty, and the judges of our courts would be compelled to disregard it. It is our glory that no human power exists in this country which can deprive one individual of his property without his consent, and transfer it to another. If grantees of land in Texas, under the Mexican government, possess valid titles, they can maintain their claims before our courts of justice. If they have forfeited their grants by not complying with the conditions on which they were made, it is beyond the power of this government, in any mode of action, to render those titles valid, either against Texas, or any individual proprietor. To resuscitate such grants, and to allow the grantees the same period after the exchange of the ratifications of this treaty to which they were originally entitled, for the purpose of performing the conditions on which these grants had been made, even if this could be accomplished by the power of the government of the United States, would work manifold injustice. These Mexican grants, it is understood, cover nearly the whole of the sea-coast and a large portion of the interior of Texas. They embrace thriving villages, and a great number of cultivated farms, the proprietors of which have acquired them honestly by purchase from the State of Texas. These proprietors are now dwelling in peace and security. To revive dead titles, and suffer the inhabitants of Texas to be ejected under them from their possessions, would be an act of flagrant injustice, if not wanton cruelty. Fortunately, this government possesses no power to adopt such a proceeding. The same observations equally apply to such grantees in New Mexico and Upper California. The present treaty provides amply and specifically in its eighth and ninth articles for the security of property of every kind belonging to Mexicans, whether held under Mexican grants or otherwise, in the acquired territory. The property of foreigners, under our Constitution and laws, will be equally secure without any treaty stipulation. The tenth article could have no effect on such grantees as have forfeited their claims but that of involving them in endless litigation, under the vain hope that a treaty might cure the defects in their titles against honest purchasers and owners of the soil. And here it may be worthy of observation, that if no stipulations whatever were contained in the treaty to secure to the Mexican inhabitants, and all others, protection in the free enjoyment of their liberty, property, and the religion which they profess, these would be amply guaranteed by the Constitution and laws of the United States. These invaluable blessings, under our forms of government, do not result from treaty stipulations, but from the very nature and character of our institutions.'

The declaration of fact contained in the last paragraph of that article remains, therefore, unaffected by its rejection as a part of that article.

The general fact for which we contend is further proved by the second admission of the fact by the Mexican government, in the protocol signed by its ministers before the exchange of the ratifications of the treaty of Guadalupe Hidalgo. After reciting the appointment of commissioners of the United States, with full powers to make to the Mexican republic suitable explanations in regard to the amendment of that treaty made by the Senate and government of the United States, that document declares that

'It was agreed, after adequate conversation respecting the changes alluded to, to record in the present protocol the following explanations, which their aforesaid excellencies, the commissioners, gave in the name of their government, and in fulfilment of the commission conferred upon them near the Mexican republic.'

'2d. The American government, by suppressing the tenth article of the treaty of Guadalupe, did not in any way intend to annul the grants of land made by Mexico in the ceded territories. These grants, notwithstanding the suppression of the article of the treaty, preserve the legal value which they may possess; and the grantees may cause their legitimate titles to be acknowledged before the American tribunals. Conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded territories, are those which were legitimate titles under the Mexican law in California and New Mexico, up to the 13th of May, 1846, and in Texas up to the 2d of March, 1836. And these explanations having been accepted by the Minister of Foreign Affairs of the Mexican republic, he declared, in the name of his government, that, with the understanding conveyed by them, the said government would proceed to ratify the treaty of Guadalupe as modified by the Senate and government of the United States.'

It will be observed that the solicitude of the Mexican government, so far as concerns land grants in California, relates to those made prior to May 13th, 1846. Having previously declared to our government that no grants of lands in California had been made after that date, in exacting an explanation from our government as a preliminary condition to the exchange of the ratifications of the treaty, it only required our commissioners to recognize and declare as 'legitimate' 'those titles which were legitimate under the Mexican law in California up to the 13th of May, 1846.' No pledge was exacted in regard to grants made after that date, and for the obvious reason that Mexico had previously declared that none had been made. The explanation and definition of 'legitimate titles' in California thus required by Mexico from the United States on the basis of its own previous statement is, therefore, equivalent to a redeclaration of that fact by Mexico. That declaration, therefore, is the measure of the obligations of the United States under the treaty in regard to land grants in California. We are not bound to recognize as genuine or valid any grants made or purporting to be made after May 13, 1846. This result follows, not directly, from any treaty stipulation to that effect, but indirectly, from the declaration of a fact by Mexico, which fact thus becomes the measure of our obligations under the treaty. No injustice, no want of good faith, can be imputed to us for executing the treaty on the basis of the general fact affirmed and reaffirmed by Mexico to the government of the United States, viz.: that no genuine or valid grants of land in California were made after May 13, 1846.

This fact is also confirmed by the journal of the Departmental Assembly for the year 1846, found among the archives of California. An examination of that document shows that it extends from March 2, 1846, to July 24, 1846; and that in the sessions held from May 13, 1846, to July 24, 1846, no grant was presented by the governor, for approval by the Assembly, dated later than May 2, 1846, although sessions were held successively May 15, June 3, June 10, June 15, July 1, July 3, July 6, July 7, July 8, and July 24, 1846.

This result, it will be seen, is in harmony with the declaration made by Mexico to the United States on the subject of land grants in California, after examination.

3. But admitting the competency of the governor to make the grant after May 13, 1846, the grant is illegal, because it does not contain the usual conditions, requiring building within a year, cultivation, and inhabitancy. By the regulations of 1828, 'the governors of the territories are authorized (in compliance with the law of the General Congress of the 18th of August, 1824, and under the conditions hereafter specified) to grant vacant lands in their respective territories to such contractors, families, or private persons, whether Mexicans or foreigners, who may ask for them for the purpose of cultivating and inhabiting them.' The governor, therefore, had no authority to grant lands, except upon conditions for the purposes of cultivation and inhabitancy, which he did not do.

Mr. Justice FIELD delivered the opinion of the court:

title: United States v. Yorba


text: Talk:United States v. Yorba

title: Talk:United States v. Yorba


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United States v. Yorba/Opinion of the Court

Three objections are urged by the appellants to the decree of confirmation.

1st. That the grant to the claimant was proved by secondary evidence.

2d. That the grant was issued by the Mexican governor of California, after the 13th of May, 1846; and

3d. That the grant does not contain conditions requiring cultivation and inhabitancy and the construction of a house within a year.

1. The first objection rests upon the fact that the governor who signed and the secretary who attested the grant were not called to prove its execution, and that the instrument was admitted upon proof of their signatures. This proof of their signatures by a third party is characterized by counsel as secondary evidence of the execution. Whether with strict accuracy it can be thus characterized is immaterial. Their testimony, or at least testimony establishing something more than the genuineness of their signatures, might have been required, if the usual preliminary proceedings to the issue of a Mexican grant in colonization had not been produced in the case from the archives of the former government in the custody of the Surveyor-General of California. In the absence of the preliminary proceedings, suspicion naturally arises as to the genuineness of any grant produced, and in such cases the strict proof mentioned in United States v. Teschmaker, and in Fuentes v. United States, may be demanded. But where the preliminary proceedings are preserved in the archives, and no doubts in consequence are created as to the genuineness and due execution of the grant, the proof of the signatures of the grantor and attesting secretary will, on appeal, be deemed sufficient by this court, unless objection is taken to its sufficiency in the first instance before one of the inferior tribunals. Such is the purport of the recent decision in the case of The United States v. Auguisola.

2. The invalidity of grants issued by the Mexican governors of California, after the 13th of May, 1846, is asserted upon the declaration of Mexico, through her commissioners, who negotiated the treaty of Guadalupe Hidalgo, that no such grants were issued subesquent to that date. It is true that such declaration was made and embodied in the projet of the treaty originally submitted to our government. But as the clause containing it was stricken out by the Senate, it cannot be affirmed that the treaty was assented to by the United States on the faith of the declaration. Even if the case were different, and the treaty had been concluded in reliance upon the truth of the declaration, that fact could not affect the rights of parties, who, subsequent to the 13th of May, 1846, obtained grants from the governors of California, whilst their authority and jurisdiction in the country continued. The rights asserted by the inhabitants of the territory to their property depend upon the concessions made by the officers of the former government having at the time the requisite authority to alienate the public domain, and not upon any subsequent declaration of Mexican commissioners on the subject.

The authority and jurisdiction of Mexican officials are regarded as terminating on the 7th of July, 1846; on that day the forces of the United States took possession of Monterey, an important town in California, and within a few weeks afterwards occupied the principal portions of the country, and the military occupation continued until the treaty of peace. The political department of the government at least appears to have designated that day as the period when the conquest of California was completed, and the Mexican officials were displaced; and in this respect the judiciary follows the action of the political department.

3. The absence from the grant of conditions requiring cultivation and inhabitancy, and the construction of a house within a year, does not affect the validity of the grant. The omission to insert them probably arose from the fact that the grantee, together with his deceased brother, had been for years previous in the occupation and use of the premises. The object of the general colonization law of 1824, and the regulations of 1828, which were adopted to carry that law into effect, was the settlement of the vacant lands of the Republic, and to secure that object concessions like the one in this case were generally made subject to the conditions of cultivation and inhabitancy, although the conditions were not always inserted in the title papers. It would be unnecessary to insert them when such cultivation and inhabitancy by the grantee already existed. In the grant to Sutter, the validity of which was affirmed by this court, there was a similar omission, and no doubt for like reasons.

DECREE AFFIRMED.


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