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Thompson v. Perrine/Opinion of the Court

The third section of the original act provided that the commissioners thereby authorized 'may, in their discretion, dispose of such bonds, or any part thereof, to such persons or corporations, and upon such terms, as they shall deem most advantageous for their said town, but not for less than par; and the money that shall be received by any loan or sale of such bonds shall be invested in the stock of such company, now organized, or that may hereafter be organized, within two years after the passage of this act, for the purpose of building or aiding in the building of a railroad,' from Monticello to Port Jervis.

The entire issue of bonds under the acts referred to was $148,000, of which $15,000 were delivered to the company on the 4th of May, 1869, and $133,000 on the 12th of May, 1869.

Prior to the delivery of the bonds to the railroad company it had made a construction contract with Crowley and Colts, by which the latter were to be paid partly in bonds of towns along the line of the road. In September, 1869, Gulick & Van Kleeck purchased, for cash, eight of the bonds from the National Bank of Port Jervis, at ninety cents on the dollar. In November of the same year, the Atlantic Savings Bank of the City of New York (subsequently known as the Bond Street Savings Bank) purchased $50,000 of the bonds, at eighty-two and one-half cents on the dollar and accrued interest, for cash, and from that institution Gulick & Van Kleeck purchased eighteen of the bonds, Feb. 19, 1875, at seventy-five cents on the dollar. The town, by means of taxation in conformity with the provisions of the original and amendatory acts, met the instalments of interest due March 1, 1870, and Sept. 1, 1870. The road was completed in January, 1871, and has been in operation ever since.

Such was the condition of the enterpise, and such were the relations which the town held to the holders of its bonds, when, on the 28th of April, 1871, the ligislature of New York passed an act entitled 'An Act to legalize and confirm the acts of the commissioners of the towns of Thompson and Forestburgh, in the county of Sullivan, and of Deerpark, in the county of Orange, in issuing and disposing of the bonds of their respective towns, to build a railroad from the village of Monticello, in the county of Sullivan, to the village of Port Jervis, in the county of Orange, under chapter five hundred and fifty-three of the laws of eighteen hundred and sixty-eight, and to legalize and confirm all bonds heretofore isue d by such commissioners under said chapter of laws, now held by or owned by bona fide purchasers.'

As the facts were undisputed, the court directed a verdict for Perrine and the town sued out this writ.

Since the present case largely depends upon the construction and effect of the act of April 28, 1871, it is here given in full: -

'SECT. 1. The acts of Nathan S. Hamilton, Giles M. Benedict, and William H. Cady, commissioners on the part of the town of Thompson, and Silas T. L. Norris, Edwin Hartwell, and James Ketcham, commissioners of the town of Forestburgh, in the county of Sullivan, and of Orville J. Brown, Samuel O. Dimmick, and Augustus B. Goodale, commissioners of the town of Deerpark, in the county of Orange, appointed in pursuance of an act entitled 'An Act to anthorize certain towns in the counties of Sullivan and Orange to issue bonds and take stock in any company now organized or that may hereafter be organized, within three years after the passage of this act, for the purpose of building a railroad from the village of Monticello, in the county of Sullivan, through the towns of Thompson and Forestburgh, in said county of Sullivan, and the town of Deerpark, in the county of Orange, to Part Jervis,' passed May fourth, eighteen hundred and sixty-eight, in issuing bonds upon the faith and credit of their respective towns, and in exchanging them for the stock of the company, organized for the purpose of constructing the railroad, contemplated by said act, are hereby ratified and confirmed.

'SECT. 2. No bond or bonds issued or purporting to have been issued under the said act, and now held, owned, or possessed by any person or persons, guardian, trustee, or corporation, in good faith or for a valuable consideration, shall be void or voidable by reason of any defect or imission in the consents in writing, of the taxpayers of the said towns of Thompson, Forestburgh, and Deerpark, upon which such bonds were or purport to have been issued in or by reason of said consents, not stating the name of the failroad company in which the taxpayers so signing such consents desired the bonds or the money arising from the sale thereof to be invested. But that the said bonds shall be as valid and effectual for every purpose, as if such defect or omission had not occurred: Provided, that such or any exchange of bonds by said commissioners for the stock of said company was made at the par value of the said bonds: And provided, further, that the respective issues of the said bonds by their commissioners do not exceed the amount authorized by said act.

'SECT. 3. No action or proceeding at law, commenced or pending, at the time of the passage of this act, shall abate or be discontinued, or be in any was affected by reason thereof; but the same may be prosecuted or defended, and judgment entered therein, and all proceedings taken to enforce the same, in the same manner as now provided by law, and with the like effect as if this act had not been passed.

'SECT. 4. This act shall take effect immediately.'

Mr. T. F. Bush for the plaintiff in error.

Mr. William M. Evarts, contra.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

Although the act of 1868 required all bonds issued under its authority to be disposed of for not less than par, and their proceeds invested in the stock of the company, the commissioners exchanged those issued by the town of Thompson directly with the railroad company for an equal amount of the latter's stock. This was in violation of the statute as construed by the Court of Appeals of New York, in several cases to which we had occasion to refer in Scipio v. Wright, 101 U.S. 665. We there held-following the decisions of the State court, some of which were made long prior to the passage of the particular enactment now under examination-that a purchaser of town bonds, having notice that they were exchanged for stock in a railroad company, in violation of a statute similar to that of 1863, was not a bona fide holder, and could not enforce the payment of them. We perceive no reason to qualify that ruling, and therefore proceed to the consideration of other questions not embraced by it.

It is apparent, upon the face of the act of 1871, that the legislature was advised of the fact that the commissioners had departed from the statute of 1868, in exchanging the bonds for stock in the railroad company. And its manifest intention was not only to ratify and confirm such exchange, but to protect any holder of the bonds, who became such in good faith, for a valuable consideration, against any defence arising out of defects or omissions in the consents of taxpayers, provided the exchange was at the par value of the bonds and the issue did not exceed the amount authorized by law.

The main argument of counsel for the town is embraced by the following propositions: First, That the consents of taxpayers were not such as the acts of 1868 and 1869 required. Second, That the bonds were exchanged for stock, in violation of the statute; and since they recite, upon their face, that they were issued 'for value received in the stock of the Monticello and Port Jervis Railway Company,' there could be no bona fide holders thereof in the commercial sense. Third, That they were not issued under the seals of the commissioners, as required by the statute. Fourth, It was beyond the power of the legislature, by subsequent enactment, to make them valid obligations against the town, without its assent given in proper form. Fifth, That no such assent was given.

If it be conceded that the consents were insufficient; that a seal was necessary as evidence of the official authority of the commissioners; that the recitals on the bonds, reasonably construed, gave notice to purchasers that they had been illegally exchanged for stock, when they should have been disposed of or sold, at not less than their par value, and their proceeds invested in the stock of the company,-the town is, nevertheless, liable, if the curative act of April 28, 1871, was within the constitutional power of the legislature to pass. While this question, in some of its aspects, may be one of general jurisprudence,-involving a consideration of the limits which, under our form of government, are placed upon legislative and judicial power,-it is proper to inquire as to the course of decisions in the highest court of New York upon the authority of the legislature to pass such an act. This becomes necessary in view of the fact that the Court of Appeals of that State has adjudged the act, in its main features, to be unconstitutional. That adjudication, it is contended, is conclusive of the rights of parties in this case. As we are unable to give our assent to this view, it is due to that learned tribunal that we should state, with some fulness, the reasons for the conclusion which we have reached.

Prior to the year 1858 the question arose in several cases pending in different inferior courts of New York as to the constitutional power of the legislature to authorize or require municipal corporations to subscribe for stock in railroad companies, or to issue bonds therefor. The decisions disclosed a conflict of opinion among judges of recognized ability. The question finally came before the Court of Appeals in the year 1858, in Bank of Rome v. Village of Rome, 18 N. Y. 38. It was there ruled that the State Constitution did not, in terms, or by necessary intendment, restrain the legislature from conferring upon municipal authorities the power to subscribe to the stock of a railroad corporation, and by taxation to raise the necessary funds for the payment thereof. That decision was approved in 19 N. Y. 20. In People v. Mitchell (35 id. 551), decided in 1866, the court quote, with approval, our decision in Thompson v. Lee County (3 Wall. 327), where, speaking by Mr. Justice Davis, we said that although a county or other municipal corporation has no inherent right of legislation, and can exercise no power not conferred upon it, in express terms, or by ai r implication, the legislature, 'unless restrained by the organic law, has the right to authorize a municipal corporation to take stock in a railroad or other work of internal improvement, to borrow money to pay for it, and to levy a tax to repay the loan' and that such authority 'can be conferred in such a manner that the objects can be attained, either with or without the sanction of the popular vote.'

The decision in People v. Mitchell is important in other aspects of the present case. The main question was as to the validity of a confirmatory statute, the object of which was to cure the defects in certain affidavits filed in proof of the consent of taxpayers to a proposed municipal subscription of stock in a railroad company. The statute declared that the affidavits should be valid and conclusive proof in all courts and for all purposes, to authorize and uphold the respective subscriptions of the stock and the issue of bonds to the amount specified therein, and that the bonds should be valid and binding on the municipality issuing them, without reference to the form or the sufficiency of the affidavits. The court, referring to the confirmatory statute, said 'it was within the scope of legislative authority to modify the limitations and restrictions in the antecedent acts on this subject, to dispense with prior conditions, and to change the commissioners with defined and imperative duties.' And it quotes with approval our language in Thompson v. Lee County, where, referring to a curative statute passed by the Iowa legislature, we further remarked, that 'if the legislature possessed the power to authorize an act to be done, it could, by a retrospective act, cure the evils which existed, because the power thus conferred had been irregularly executed.'

Thus stood the doctrines of the State court upon the question of municipal subscriptions and as to the power of the legislature, by retrospective enactment, to cure defects in the exercise of powers granted to municipal corporations, when the act of April 28, 1871, was passed. But in 1873 the Court of Appeals decided People v. Batchellor, 53 N. Y. 128. That was a case of municipal subscription to a railroad corporation under an act passed in 1867, similar, in its main features, to the one passed in 1868 in reference to the Monticello and Port Jervis Railroad Company. It was claimed that the statute had not been complied with in obtaining consents from taxpayers. A subsequent act of the legislature required the subscription to be made upon the consents filed, which the court found not to be such as were prescribed by the statute under which they had been obtained. Without any subscription having been made, or bonds issued, a mandamus was sued out to compel the town to become a stockholder in the company, and to issue its bonds in payment of the subscription price of the stock. The court held that the consents of the taxpayers did not embrace such an issue of bonds as the subsequent act required; and that the legislature could not compel a municipal corporation to subscribe stock or issue bonds in aid of the construction of the road of a company, which, although public as to its franchise, was private as to the ownership of its property and its relations to its stockholders. The opinion was concurred in by four of the judges, one concurred in the result, one dissented, and one did not vote.

In Town of Duanesburgh v. Jenkins (57 id. 177), decided in 1874 by the commission of appeals,-of concurrent jurisdiction and equal authority with the Court of Appeals,-the court, by Johnson, J., reviewed the prior cases in the Court of Appeals involving the questions discussed in People v. Batchellor. In reference to the latter case it was intimated that the language of the court upon some of those questions was not in harmony with its previous decisions, and that the opinion should be limited to the point adjudged upon the facts existing in that case. After a careful analysis of those decisions, the conclusins announced were that the authority of the legislature to enable towns and other civil divisions of the State to subscribe for stock and issue bonds in aid of a railroad company, had been established by numerous decisions of the highest court of the State; that there was no distinction in principle between a law authorizing a town, upon a popular vote, to subscribe for such stock and issue bonds therefor, and a law directing the same thing to be done; that when the authority to subscribe was made to depend upon the consent of the town, it was in the discretion of the legislature to prescribe how such consent shall be given; and that, if it originally rested with the legislature to fix the terms on which the towns might, act, the same power could remit a part of the conditions imposed, or heal any defects which may have occurred in the performance by the town of those conditions. Much of the language in that case is strikingly applicable to the one in hand. Said the court: 'In this case the commissioner has been regularly appointed under the statute, by whom bonds were to be issued and stock subscribed for, provided certain consents were obtained and proofs filed according to the requirements of the several acts upon the subject. Consents were obtained, and proofs were made and filed, which are now on the one side claimed to be, and on the other are denied to be, in conformity to the law. The commissioner meanwhile executed the bonds, subscribed for stock, and delivered the bonds to the company in payment of the subscription; complying with the requirements of the statute in all respects, if the requisite consents had been given and proof made. The only officer of the town who had any duty in the premises acted by signing the bonds; and the legislature, seeing the whole matter, released the conditions which it had imposed, and declared his assent binding upon the town, if the bonds had been issued and the road had been built, and the bonds in that case obligatory. As it might have authorized action in this way and on these conditions by the town originally, I see no objections to giving effect to its ratification of the action of the town, and holding its consent thus expressed effectual.' Again said the court: 'In his case the proper officer of the town has acted, the bonds have been issued, and the stock subscribed for. The objection is that the proof of preliminary consents by tax-payers is defective. The action of the legislature is, in my judgment sufficient to heal this defect, and to sanction the action of the town commissioner in binding the town, the whole consideration to the town having been received in the completion of the road and the issuing of the stock for its benefit.'

In Williams v. Town of Duanesburgh (66 N. Y. 129), decided in May, 1876, the Court of Appeals of New York recognized the correctness of the principles announced in People v. Mitchell and Town of Duanesburgh v. Jenkins, citing, among other authorities, Gelpecke v. Dubuque, 1 Wall, 175; Thompson v. Lee County, 3 id. 327; Beloit v. Morgan, 7 id. 619, and St. Joseph Township v. Rogers, 16 id. 644. Alluding to the statutes for bonding towns in aid of railroads, the court held that the legislature could overlook the defective execution of the power conferred, and, by retroactive legislation, cure defects in the action of municipalities under those statutes. The legislature may, said the court, 'by subsequent legislation, when there has been a failure to perform conditions precedent, and the bonds have been issued, dispense with such conditions, and ratify and confirm, and make valid and obligatory upon the municipality, bonds issued without such performance,-at least it may do so in cases where the municipality has, through the construction of the road, or by the receipt of the stock of the company in exchange for the bonds, received the benefit which the statute contemplated as the equivalent for the liability it was authorized to incur. The officers authorized under thes § tatutes to issue the bonds are public agents, and the legislature, looking over the whole matter, may, when in its judgment justice requires it, ratify and confirm their acts, which otherwise would be valid. In this case, the legislature could originally have authorized the bonds of the town of Duanesburgh to be issued under the precise circumstances existing when they were issued, and if the acts of the commissioner have, by subsequent legislation, been ratified, it is equivalent authority to do what has been done.' It is worthy of remark, in this connection, that Allen, J., had held, in Clark v. City of Rochester (13 How. (N. Y.) Pr. 204), decided in 1856, that the legislature had no power under the Constitution to delegate to, or confer upon, municipal corporations authority to subscribe for or to hold stock in railroad corporations, and to issue bonds in payment therefor. Nevertheless, in Williams v. Town of Duanesburgh (Church, C. J., concurring with him), he recognized Town of Duanesburgh v. Jenkins as authority, and as declaratory of the law.

But it is contended that the Court of Appeals of New York, in the later case of Horton v. Town of Thompson (71 N. Y. 513), has decided the identical statute under examination to be unconstitutional, and that this court is bound by the decision. The case was commenced about the time the Circuit Court of the United States for the Southern District of New York sustained the validity of that statute, and gave judgment against the town for the amount of some of the bonds embraced in the issue of $148,000. Cooper v. Town of Thompson, 13 Blatchf. 434. Horton v. Town of Thompson was decided in the Supreme Court of the State after the present action was instituted. It was a suit upon two interest coupons of $35 each, belonging to the same issue of bonds. It was finally determined in the Court of Appeals shortly before the trial of this case in the court below. The questions raised were, whether the consent of the taxpayers was defective in not naming the railroad to the construction of which the fund should be applied; and whether the validating act of April 28, 1871, in so far as it declared the exchange of bonds for stock to be legal, was not unconstitutional. Upon the first question the court said, that as the consent was sufficiently comprehensive in its terms to embrace the road in question, and inasmuch as the legislature might legally have authorized it to be in the form in which it was actually given, the act of 1871 'probably cured the defect in its form.' But the court, passing that question as one that need not be finally determined, held, upon the authority of People v. Batchllor, that the legislature had no power to authorize, or direct, the commissioners originally to contract the debt without any consent or action upon the part of the town; and, that since the consent of the taxpayers was not given for an issue of bonds to be exchanged for stock, the legislature could not validate the bonds and make them binding obligations upon the town, in the hands at least of those who were informed, by their recitals, that, in violation of the statute, they had been exchanged for stock in the railroad company. Four of the judges concurred in the opinion, and three dissented.

It is to be observed that the court does not refer to or overrule Bank of Rome v. Village of Rome, People v. Mitchell, Town of Duanesburgh v. Jenkins, or Williams v. Town of Duanesburgh, supra.

We are unable to reconcile horton v. Town of Thompson, upon the points now raised, with the doctrines of those cases or of others decided in the Court of Appeals prior to People v. Batchellor. It certainly cannot be said that there is such an established, fixed construction by that court of statutes similar to those of 1868 and 1869, or to the confirmatory act of 1871, as obliges us to follow Horton v. Town of Thompson, or that will justify any one in saying that the present questio i § finally at rest in the courts of that State. But independently of any such consideration, there are conclusive reasons why we cannot, in opposition to our own views of the law, as expressed in numerous cases, accept the principles of that case as decisive of the rights of the present parties. When the act of April 28, 1871, was passed, it was the established doctrine of the highest court of New York, as it was of this court, that the legislature, unless restrained by the organic law of the State, could authorize or require a municipal corporation, with or without the consent of the people, to aid, by a subscription of capital stock, in the construction of a railroad, having connection with the public interests of the people within the limits of such municipality, and to provide for payment by an issue of bonds or by taxation; that defects or omissions, upon the part of such municipal corporation or its officers, in the execution of the power conferred, or in the performance of the duty imposed, could be cured by subsequent legislation,-certainly, where the corporation had received the benefits which the original subscription was designed to secure. As, therefore, the legislature might, in the original act under which these bonds were issued, have authorized or required the bonds to be exchanged directly with the railroad company for capital stock, it could ratify and confirm such exchange, even where originally illegal, so as to make them binding obligations upon the town in favor of all who then held, or might thereafter acquire, them, in good faith or for a valuable consideration. It is, therefore, an immaterial circumstance that the recitals in the bonds may have furnished notice that they were issued originally in violation of the statute. That was the very difficulty which the act of 1871 was designed to remove, and, as matter of law, it was removed, if regard be had to the settled doctrines of this court, or to the decisions of the highest court of the State rendered previously to, and which were unmodified at, the passage of that act. It results that from that moment the bonds, by whomsoever held, whether by the railroad company or by others, became binding obligations upon the town, as much so as if they had originally been sold and their proceeds invested in the stock of the railroad company, as required by the acts of 1868 and 1869. If the rights of those holding the bonds were in any degree affected by the subsequent decision in People v. Batchellor, the later decision in Town of Duanesburgh v. Jenkins restored the law, so far as the courts of New York were concerned, as it undoubtedly was declared to be at the time the act of 1871 was passed. The defendant in error acquired the bonds in suit in 1875, before the decision in Horton v. Town of Thompson, and when, according to the principles announced in Town of Duanesburgh v. Jenkins and many prior cases in the Court of Appeals, the act of 1871 must have been sustained as a valid exercise of legislative power. He purchased them for value at public auction in the city of New York, without notice of any defence thereto, or of the pendency of any suit involving their validity. If the recitals in the bonds gave notice that the acts of 1868 and 1869 forbade their exchange for stock, and required them to be sold and their proceeds invested in such stock, the purchaser is also presumed to have known, not only that such exchange had been legalized by the act of 1871, but that the authority of the legislature to pass that act was sustained by the decisions of the highest court of the State rendered prior to its passage. His rights, therefore, should not be affected by a decision rendered after they accrued, which decision is in conflict with the law, as declared not only by this court in numerous cases, but by the highest court of the State, at and before the time he purchased the bonds.

The assignments of error present another question which it is our duty to notice.

The town pleaded in bar of the actio a judgment of the Supreme Court of the State in an action commenced in June, 1869, by the attorney-general of the State, on the relation of Charles Kilbourne and others, taxpayers, against the Commissioners of the Town of Thompson, F. C. Crowley, C. L. Colt, William D. Colt, the Monticello and Port Jervis Railway Company, and the Town of Thompson. A temporary injunction was obtained on 24th June, 1869, restraining the respondents and each of them from using, loaning, or selling the bonds and from executing any other bonds based upon the consents given by the taxpayers. But that injunction was vacated and set aside on 27th July, 1869. A final decree was rendered in 1872 by which the bonds were declared to be null and void, and they as well as the certificates of stock exchanged therefor directed to be delivered up, by the respective parties, and cancelled. The general ground upon which the decree rested was that the provisions of the act under which they were issued were not complied with. From that judgment no writ of error or appeal seems to have been prosecuted. We have already seen that the entire issue of bonds was delivered to the railroad before the commencement of that action, that is, in May, 1869; and that after the dissolution of the injunction, to wit, in September and November, 1869, a large portion of the bonds and found their way into the hands of others who purchased them for value and without any notice of the pendency of the suit in the Supreme Court.

There is an insuperable difficulty in the way of plaintiff in error using the judgment in that case to defeat the present action. The bonds were negotiable securities, which had passed from the town before the action in the Supreme Court of the State was commenced. Those who purchased them, in the market, pending that litigation, or after it terminated, without notice of the suit, and in good faith, for value, could not be affected by the final decree. Had the complaints caused them to be surrendered to the custody of the court, pending the suit, they could have been cancelled in pursuance of the directions contained in the final decree. But the actual custody of the railroad company was never disturbed, nor sought to be disturbed. The knowledge by its officers of the objects of the action, or of the terms of the final decree, could not affect a bona fide purchaser for value who had no such knowledge. Our decision in County of Warren v. Marcy (97 U.S. 96), which is partly based upon adjudications in the courts of New York (Murray v. Lylburn, 2 Johns. (N. Y.) Ch. 441, and Leitch v. Wells, 48 N. Y. 585), is conclusive upon this branch of the case.

It is scarcely necessary to say that the decree of the Supreme Court of the State can derive no special force, as against the defendant in error, by reason of the third section of the act of April 28, 1871. That section only protected from the operation of the act any action or proceeding at law, commenced or pending at the time of its passage. That provision furnishes, perhaps, an explanation of the failure of the Supreme Court, in its opinion, to refer to the act of 1871, which had passed before its final decree was entered. The purpose of the third section was only to require existing actions or proceedings at law to be determined without reference to that act, and does not affect the rights of a bona fide purchaser who was not a party to the suit, and weas without notice of its pendency.

We perceive no error in the record.

Judgment affirmed.


text: Talk:Thompson v. Perrine/Opinion of the Court

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Railroad Company v. Falconer Railroad Company

ERROR to the Supreme Court of the State of New York.

The facts are stated in the opinion of the court.

Mr. Richard T. Merrick, for the plaintiff in error.

Mr. Richard P. Marvin and Mr. Clarkson N. Potter, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.


text: Talk:Railroad Company v. Falconer Railroad Company


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Railroad Company v. Falconer Railroad Company/Opinion of the Court

The first of these cases was a petition filed by certain tax-payers of th t own of Ellicott, in Chatauque County. New York, on behalf of themselves and others, against the Buffalo and Jamestown Railroad Company and Weeks, Breed, and Jones, commissioners to issue bonds for the town, seeking to restrain the issue and delivery of certain town bonds to the railroad company and to prevent a subscription to its capital stock on behalf of the town. In this case a decree was made in favor of the petitioners, awarding a perpetual injunction against the issue of the bonds and the subscription of stock; and this decree was affirmed by the Court of Appeals. The second case was commenced by submitting to the Supreme Court of the State, in a special statutory procedure, an agreed statement of facts in relation to the issue of the bonds and the subscription of the stock which form the subject of the first action, with a prayer on the part of the railroad company, as plaintiffs, for an order directing the issue of the bonds and the subscription of the stock, and a prayer of the town commissioners, as defendants, for a decree against such issue and subscription. In this case a decree was made as prayed by the defendants, which was also affirmed by the Court of Appeals. To reverse the decrees in both of these cases, the present writs of error were sued out by the Buffalo and Jamestown Railroad Company, the plaintiff in error.

The jurisdiction of this court to review the decision of the State Court of Appeals is based upon the effect given by said court to the amended Constitution of the State of New York, which went into operation on the first day of January, 1875, whereby, as is alleged by the plaintiff in error, said constitution was made to impair the obligation of a contract previously entered into by the town of Ellicott with the railroad company to subscribe to the capital stock of the latter to the amount of $200,000, and to deliver to it the bonds of the town in payment of said subscription. The clause of the amended constitution to which such effect is alleged to have been given, is that which declares as follows: 'No county, city, town, or billage shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association, or corporation, or become directly or indirectly the owner of stock in or bonds of any association or corporation, nor shall any such county, city, town, or village be allowed to incur any indebtedness, except for county, city, town, or village purposes.' The Court of Appeals held that there was no such contract in existence, as alleged by the plaintiff in error, when the amended constitution went into effect, and, therefore, that the prohibition contained in the clause just quoted was conclusive against the right and power of the town of Ellicott to issue the bonds and subscribe for the stock which form the subject of this litigation. The question for us to consider, therefore, is whether any such contract, valid and binding on the town, did exist.

Briefly stated, the facts of the case were as follows: In 1872, when the proceedings took place out of which the present controversy arose, the laws of New York in relation to giving municipal aid to railroad companies like that of the plaintiff in error were contained in three acts of the legislature passed respectively, one on the 10th of May, 1869, by way of amendment to the general railroad law; an amendment to this amendment, passed April 28, 1870; and a further amendment, passed May 12, 1871. By the first of these statutes it was provided that, whenever a majority, in number and amount of taxable property, of the taxpayers of any municipal corporation should make application to the county judge, by petition expressing a desire that the corporation should create and issue bonds to any amount named in the petition (not exceeding one-twentieth of the taxable property in the corporate limits), and should invest the same, or the proceeds thereof, in the stock or bonds of any designated railroad company in the State, the said county judge should give public notice o a hearing to be had before him for the purpose of ascertaining whether the petition was, in fact, signed by the requisite majority of tax-payers; and, having determined this to the fact, he should then appoint from the freeholders, residents, and taxpayers of the corporation, three commissioners to carry out the request of the petitioners. The duties imposed upon these commissioners were limited and specific, and were, to prepare and execute the proposed bonds in the name and under the seal of the corporation, and in its name to subscribe to the stock of the railroad company designated in the petition, and to pay for the same by exchanging the bonds therefor, or the proceeds thereof. They were also authorized, after subscribing the said stock, to represent the town as a stockholder at all meetings of the railroad company. The act of 1870 also authorized the commissioners and the railroad company to enter into an agreement for limiting and defining the times when and proportions in which the bonds should be delivered, and the places where and purposes for which they should be applied. By the act of 1871 the act of 1869 was modified by inserting the following clause in the first section, namely: 'The petition authorized by this section' [that is, the petition of the taxpayers presented to the county judge] 'may be absolute or conditional; and, if the same be conditioned, the acceptance of a subscription founded on such petition shall bind the railroad company accepting the same to the observance of the condition or conditions specified in such petition.'

In the present case the petition of the taxpayers of the town of Ellicott was dated March 25, 1872, and expressed their desire in the following terms: to wit, 'Your petitioners desire that the said town of Ellicott shall created and issue its bonds to the amount of $200,000, and invest the same, or the proceeds thereof, in the stock of the Buffalo and Jamestown Railroad Company, upon the condition that the line of the railroad of said company to be constructed from the city of Buffalo to the line of the State of Pennsylvania, in said county, shall be located and constructed through the village of Jamestown in said town of Ellicott, before said bonds shall be delivered to said company or sold.' The petition contained the usual averment that the petitioners were a majority of the taxpayers, &e., and, after the proper proceedings had, the county judge appointed the commissioners before named to carry out the purposes of the petition.

On the 14th of June, 1872, the commissioners entered into an agreement with the railroad company (the plaintiff in error), by which they agreed that when the said company should have located and constructed, through the village of Jamestown, in said town of Ellicott, their proposed railroad running from Buffalo to the state line of Pennsylvania, they, the said commissioners, or their successors in office, would immediately subscribe, in the name of the town, to the capital stock of the company to the amount of $200,000, and would pay for it by delivering to the company the bonds of the town, to be executed by the commissioners of their successors in office, and to bear date of the time of such subscription; and in consideration thereof the railroad company agreed that they would receive such subscription and payment, and issue proper certificates for the stock so to be subscribed. The agreement contained a reference to the petition and proceedings under which the commissioners were appointed, and a declaration on their part that they did not undertake or agree to perform the conditions of the contract except as empowered and authorized by said proceedings.

The defendants in error contend that this agreement was ultra vires of the commissioners, and wholly without force or effect as against the town of Ellicott.

On the 26th of August, 1874, the commissioners caused to be prepared and executed bonds of the town of Ellicott to the amount of $200,000, payable to the railroad company or bearer, and delivered he m to Robert Newland and A. F. Allen, as trustees, taking from them a receipt in which it was declared that Newland and Allen should, upon the completion of the road through Jamestown, and upon the commissioners having subscribed $200,000 to the capital stock of the railroad company, and having received the certificates therefor, deliver said bonds to the railroad company, in payment of such subscription. It is manifest that this deposit of bonds cannot affect the rights of the parties. By the terms of the deposit, they were only to be delivered when the stock was subscribed; and, if that cannot be lawfully done, the bonds must be returned to the town to be cancelled.

The railroad was not constructed through Jamestown until the 20th of October, 1875. On the 1st of January, 1875, when the amended constitution went into effect, nothing had been done except to survey the route and file a map thereof.

The question then is, whether, at that time, under the circumstances above detailed, the railroad company had acquired by contract a vested right to have and receive the town's subscription to its stock, and a delivery of the bonds in payment thereof.

We are clearly of opinion that the agreement made by the commissioners with the railroad company in June, 1872, was ultra vires. Their powers were confined to subscribing for the stock and making and issuing the bonds in payment thereof when and as the petition of the taxpayers directed,-that is, after the road was comleted through Jamestown. By the act of 1870 they might also stipulate as to the instalments in which the bonds should be delivered, and the purposes for which they might be applied. But the power to do this being but an incident of the principal power to make and issue the bonds, and being only intended to enable the commissioners to prescribe the times and manner of their issue and the uses to which they should be applied, would not properly arise, and could not be effectively exercised, until the principal power itself arose and became exercisible. Whilst, however, the commissioners had the power, or, rather, would have the power, at the prescribed time, to subscribe for the stock and to execute and issue the bonds, neither the statutes nor the taxpayers' petition gave them any power to make a contract to subscribe for stock, nor a contract to deliver bonds to the railroad company. They were not charged with any such duty; they were not invested with any such power.

The case of the railroad company, therefore, must stand upon the effect of the taxpayers' petition and the proceedings had thereon before the county judge. If, under the operation of existing statutes, these proceedings amounted to a contract between the town and the railroad company, no subsequent legislation, or constitutional amendment, could lawfully impair its obligation. But it is difficult to see how the said petition and proceedings, including the appointment of commissioners, can be construed as amounting to such a contract. All that was done by the town, through the action of its taxpayers and the county judge, was to appoint agents for making a subscription and issuing bonds on the happening of a certain event. When that event should happen, it would be the duty of those agents, under the fifth section of the act of 1869, to execute their commission. The words of the section are: 'Such commissioners are further empowered and directed to subscribe,' &c. But to whom did they owe this duty? Evidently to the town which appointed them; not to the railroad company. The latter came under no obligation, and acquired no rights, until the commissioners should subscribe to its stock. Had no conditions been imposed by the petition, the duty of the commissioners to subscribe stock and issue bonds would have arisen immediately after their appointment;-but it would have been an obligation owed to their principals alone. The conditions which were in fact imposed required, it is true, something to be done by the railroad company before the commissioners could act; but no stiul ation was demanded of the company, or given by it, that this something should be done. The two parties were not brought together. There was no mutuality between them. Each was free to act as it listed.

This was the condition of things on the 1st of January, 1875, when the new constitution went into operation, prohibiting all municipal aid to corporations or individuals, by subscription of stock or otherwise. It seems to us, therefore, that the New York Court of Appeals was right in deciding that no contract existed at that time.

After the amendment took effect, no county, city, town, or village could subscribe for railroad stock; and, of course, no agent or attorney of any such corporation could do so. What had not been done before, in this regard, could not be done afterwards, unless some valid contract required it to be done. But, as we have shown, no such contract existed in this case. The action on the part of the town was voluntary up to the time of the constitutional amendment. The railroad company may have expected a subscription when their road should be completed; but they had no subscription, and had no valid agreement that any would be made. Everything was inchoate and undetermined up to the first day of January, 1875; and then all power to subscribe for stock was taken away from the town.

County of Moultrie v. Savings Bank (92. U.S. 631) is confidently relied on by the plaintiff in error to sustain their position that a contract did exist. But an examination of that case will show that it was very far from being parallel to the present. There the statute of Illinois authorized the board of supervisors of the county of Moultrie to subscribe to the stock of a particular railroad company by name, to an amount not exceeding $80,000, and to issue bonds therefor when the road should be opened for traffic between certain points. Before this event took place, the board ordered that a subscription to the stock of the company in the sum of $80,000 be made, and that, in payment therefor, bonds should be issued to the company when the road should be open for traffic. This resolution was acted upon by the railroad company as a subscription, and was entered on its minutes, and the promised bonds were disposed of by contract. This court held that the board of supervisors itself had complete authority to make a present subscription, and that this included the power to agree to subscribe, and that the resolution amounted to a subscription, or, at least, to an agreement to subscribe, which, being accepted and acted upon by the railroad company as such, created a contract between the county and the company. In the case before us, no act equivalent to the action of the board of supervisors of Moultrie County was ever done by any person or body of persons, having, at the time of such act, a present power to subscribe for stock or to issue bonds of the town of Ellicott. The taxpayers had no authority to make a subscription of stock, or to issue bonds, or to make any contract to do so; they could only express their desire that it should be done, and that commissioners should be appointed to do it; and when they did express such desire, it was conditional, as before stated. The commissioners, as we have seen, had no power to act, for no power was given them to act, until the railroad was located and completed through Jamestown. It follows that nothing which was done in the present case can be fairly regarded as equivalent to the action of the parties in the case of Moultrie County. The circumstances of the two cases were essentially different.

We think that there is no error in the record of either of the cases, and that the decrees in both must be

Affirmed.


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


text:
Brown v. Slee

APPEAL from the Circuit Court of the United States for the District of Iowa.

The facts are stated in the opinion of the court.

The case was argued by Mr. George G. Wright and Mr. Chester C. Cole, with whom was Mr. Wll iam M. Randolph, for the appellant, and by Mr. Charles C. Nourse for the appellee.

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

title: Brown v. Slee


text: Talk:Brown v. Slee

title: Talk:Brown v. Slee


text:
Brown v. Slee/Opinion of the Court

This is a suit in equity and presents the following facts: Prior to Aug. 6, 1870, Talmadge E. Brown and Jarvis Langdon were partners in business. On that day Langdon, died, leaving a will, in which he appointed John D. F. Slee, Charles J. Langdon, Theodore W. Crane, Olivia L. Langdon, and Samuel L. Clemens, executors. On the 25th of April, 1871, the executors and Brown entered into the following agreement in writing:--

'The executors of Jarvis Langdon, deceased, for value     received, hereby sell, assign, set over, and transfer unto      Talmadge E. Brown all the right, title, and interest of J.      Langdon, deceased, in or to the undivided property or assets      of the late firm of T. E. Brown & Co., of Memphis, Tennessee.

'Subject, however, to all taxes and assessments thereon, now     made or hereafter to be made, to all indebtedness therefor,      and to all liabilities of said firm or any of the members      thereof, for transactions in the business of the firm in tort      and contract, and subject to all judgments against the said      firm or any member thereof, recovered or to be recovered, and      all costs, disbursements, officers and counsel fees, and all      liability for contribution to any other partner or person in      consideration of moneys paid or to be paid upon any liability      of, from, and against all of which real or possible      liabilities, and of, from, and against any other liability      growing out of the transactions of said firm, said Brown      agrees to fully indemnify and save harmless the executors,      heirs, and next of kin of said J. Langdon, deceased.

'And said Brown further agrees to pay and discharge any just     and legal claim of any person or persons whomsoever for any      share of the profits or proceeds of the business of said      firm, whether said claim be against the said firm or against      the said Langdon, deceased, individually, and to fully      indemnify and save harmless the executors, heirs, and next of      kin of said Langdon of, from, and against any such claim; all      the aforesaid agreements of indemnity to apply not only to the liability growing out of the transactions of      said firm, but also to any possible liability growing out of      the transactions of the predecessors of said firm.

'Said Brown agrees to pay for such interest as follows:--

'First. Upon the assignment of the interest above mentioned     twenty-five thousand dollars ($25,000) in cash, together with      the further amount of fifty thousand dollars ($50,000) in      notes, satisfactorily indorsed by B. F. Allen, or other      satisfactory indorsers, and running from three (3) to      eighteen (18) months at a fair average time from these      extreme points of time mentioned.

'Second. A certain tract of land consisting of one hundred     and thirty (130) acres, situated within the limits of the      corporation of the city of Des Moines, Iowa, and also a      certain plantation situated on the White River, in Arkansas,      consisting of sixteen hundred (1,600) acres of land, and all      the buildings, improvements, and appurtenances belonging      thereto. In reference to the lands in Iowa and Arkansas, the     purchaser hereby agrees that in five years from the date of      this contract he will, if the estate or its legal assigns so      desire, purchase back the lands for twenty-five thousand      ($25,000) dollars, paying that sum in cash.

'This agreement is upon condition that the aforesaid two     tracts of land are owned by said Brown in fee-simple,      absolute, free, and clear of all taxes, assessments, and      incumbrances of whatever nature, and that they shall, before      this assignment shall be operative, be conveyed by full      covenant deeds to the executors of said J. Langdon, deceased,      said conveyances to be executed also by the wife of said      Brown, and said executors to be furnished with properly      authenticated abstracts of title thereof, showing the title      thereof to be perfect and that they are free and clear of all      incumbrances.

'The executors further agree that upon thefi nal performance     of this contract they will surrender certain notes now held      by the estate against T. E. Brown, amounting to the sum of      seventeen thousand dollars ($17,000), the aforesaid interest      shall be assigned upon the execution of said contract and the      delivery of notes, money, and deeds of the land as      aforementioned.

'Said Brown is to have sixty (60) days within which to make     the delivery and payments described in this contract.

'Dated 25th April, 1871.

'The estate of J. Langdon, per

'J. D. F. SLEE, Executor and Attorney.

'T. E. BROWN.' On the 25th of June, 1871, Brown paid the cash called for by the contract, gave his notes, and conveyed the Des Moines land to Charles J. Langdon. Thereupon the executors made to him the following assignment:--

'In consideration of one hundred thousand dollars this day     received of T. E. Brown, as by the terms of our contract made      with him, bearing date April 25, 1871, we, the executors of      the last will of Jarvis Langdon, deceased, do hereby sell,      assign, and transfer to said T. E. Brown all our rights and      all the right, title, and interest Jarvis Langdon had in his      lifetime in and to the property and assets of the firm of T.      E. Brown & Co., at Memphis, Tennessee, subject to the terms      and conditions of our said contract of April 25, 1871, above      mentioned.

'J. D. F. SLEE, Executor.

'C. J. LANGDON, Executor.

'T. W. CRANE, Executor.

'SAMUEL L. CLEMENS, Executor.

'OLIVIA L. LANGDON, Executrix.'

On the 3d of July, Brown took from Charles J. Langdon a lease of the Des Moines land for five years, and, for the use, agreed to pay the taxes and keep the premises in repair. Langdon, however, retained the right to sell the property, or any part of it, in which case the lease was to terminate, so far as it related to the property sold.

On the 30th of August the following supplemental agreement was entered into by the parties:--

'It is hereby mutually agreed by and between Talmadge E.     Brown and J. D. F. Slee and others, executors of the estate      of Jarvis Langdon, deceased, that said Brown need not perfect      his conveyance to the plantation on White River, in Arkansas,      as he is required to do by contract with said executors,      dated April 25, 1871, but may, in lieu thereof, transfer and      assign to said executors a certain judgment now owned by him      against the county of Buena Vista, State of Iowa, on which      there is due to him five thousand ($5,000) dollars, for the      purposes named in said contract of April 25, 1871, said Brown      to guarantee the collection of said judgment.

'It is further understood and agreed that if said executors     desire it, said Brown shall, at the expiration of the five      (5) years stated in said contract of April 25, 1871,      repurchase the 130 acres of land in the city of Des Moines at $25,000, the same as though the      plantation aforesaid was included therein.

'And it is further understood that if any of said Buena Vista     judgment shall within said five (5) years be paid to said      executors, they will allow interest thereon at the rate of      seven (7) per cent per annum, and the principal so paid may      be deducted from the $25,000 to be paid by said Brown for the      repurchase of the Des Moines property.

'In witness whereof, said parties have hereunto set their     hands this 30th day of August, 1871.

'J. D. F. SLEE, Executor,

'And Attorney for the Executors of the Estate of J. Langdon,     Deceased.

'TALMADGE E. BROWN.'

On the 30th of October, 1875, Charles J. Langdon wrote the following letter to Brown, which reached him in due course of mail:--

'ELMIRA, Oct. 30, 1875.

'T. E. BROWN, Esq., Des Moines, Iowa.

'DEAR SIR,-My wife's health is so poor that I am obliged to     go away with her, and I shall sail for Europe Saturday next,      for an absence of four, six, or eight months. I have left all     necessary papers for the closing of our matters, the      re-deeding of the Des Moines land and all other necessary      business, with Mr. Slee. The balance of $25,000, less what     has been paid on Buena Vista Countyju dgment, will be due      April 25, 1876, and we shall desire the money at that time as      per contract.

'Yours truly,

C. J. LANGDON, Executor.'

To this letter Brown made no reply until May 26, 1876, when he wrote as follows:--

'DES MOINES, 26th May, 1876.

'CHAS. J. LANGDON, Esq., Elmira, N. Y.

'DEAR SIR,-Your letter to me last fall in regard to the land     did not seem to require an early answer, and I have delayed      it until now. I shall not be able to pay you the money this     year, and propose the following, which I trust will answer      your purpose: 25th April, '77, $5,000.00 and a like sum on      the 25th day of each April following, all unpaid sums to draw      six per cent per annum from April 25, '76, the land to remain      in your name until it is paid. The last payment will be     fractional part of $5,000, of course. This is small interest, but interest must in future be less than     it has been, and this is all I get on money that has been due      longer than this has to you. There has been nothing paid on     the Buena Vista judgment since remittance to you. The county     are trying to have the same set aside for some informality or      fraud, and may succeed, but I think not.

'Very truly yours, &c.,

T. E. BROWN.'

On the 31st of May Langdon answered this letter declining the proposition, and on the 4th of June Brown wrote him as follows:--

'DES MOINES, 4 June, '76.

'C. J. LANGDON, Esq., Elmira, N. Y.

'DEAR SIR,-I am in receipt of your favor of the 31st May. You     say the proposition does not suit you. This does not surprise     me. I did not think it would. I am very sorry I cannot pay     this money and take the land now. You must take such course     in the matter as seems to your interest. I do not ask or     expect you to be governed by what may seem to be mine.

'Yours, &c.,

T. E. BROWN.'

On the 26th of June, 1876, the executors caused to be tendered to Brown a deed for the Des Moines land and demanded the payment of $23,381.14, and again on the 17th of July they tendered the deed accompanied with an assignment of the Buena Vista County judgment. The money not being paid, this suit was begun on the 19th of July to obtain a sale of the property to pay the balance that was due of the agreed sum of $25,000, and if the proceeds were not sufficient to pay the whole debt, to obtain execution for what remained unsatisfied.

Among the assets of the firm was a debt against one John S. Baldwin. This debt was originally contracted to Langdon, but afterwards, at the request of Langdon, the amount was transferred to the firm, Baldwin being charged and Langdon credited with it on the books. Baldwin became insolvent, and a part of his debt has never been paid. By way of defence to the original bill by the executors, Brown filed a cross-bill, in which he alleged in substance that when this account against Baldwin was transferred to the firm, Langdon individually guaranteed its payment in writing, and that in consequence he was permitted while in life to draw large sums from the partnership. It was then averred 'that the guaranty of the said Langdon was always recognized and treated by him (Langdon) as an individual guaranty, made upon his own personal account, and not as any part of the firm's business, or as necessarily or properly connected therewith. That at the time of the purchase of the interest of said Langdon's estate from his executors as hereinbefore stated, it was believed, or, at all events, there was a hope and a probability that something, at least, upon the balance due from said Baldwin's account, and possibly all might be collected, or in some manner realized from said Baldwin. And that said claim against said Baldwin was spoken of, and was the subject of conversation between the parties at the time of the purchase, and the same was not settled or adjusted or understood to be embraced in the terms of the settlement for the reason, among others, of the hope that the same might be realized in whole or in part from the said Baldwin.

'And your orator, therefore, distinctly avers, as a substantive ad existing fact, that the claim upon Langdon's executors, by reason of that guaranty, was not embraced in said settlement, nor intended to be embraced, but was omitted therefrom for adjustment between the parties in case the said Baldwin should fail to pay any portion of said balance against him.'

The contract between Brown and the executors, on which the original suit was brought, was made an exhibit to the cross-bill, and the prayer was that the estate of Langdon might be charged with what was due on the debt. The executors demurred to the cross-bill, and on the final hearing in the Circuit Court this demurrer was sustained and a decree rendered on the foregoing facts, finding due from Brown $26,320.37 for the repurchase, and ordering a sale of the property to pay the debt. From that decree Brown appealed.

There are two principal questions in this case, to wit: 1, whether, on the facts, Brown is bound to purchase back the Des Moines property and pay the balance of the $25,000 which remains after deducting the collections on the Buena Vista County judgment; and, 2, whether the demurrer to the cross-bill was properly sustained.

To our minds the fair construction of the contracts on which the case depends is that Brown purchased the interest of the estate of Langdon in the partnership property for $100,000 payable $25,000 in cash, $50,000 in notes, and $25,000 in the Des Moines land and Buena Vista County judgment, unless the executors concluded not to keep the land and the judgment, in which event he was at the end of five years to purchase them back and pay in money the $25,000 for which they were taken, the executors crediting him with what had in the mean time been collected on the judgment, with interest at the rate of seven per cent per annum.

This is not only the fair inference from the language of the contracts themselves, but it seems to have been the understanding of the parties as shown by their conduct at the time and since. Thus, on the 25th of June, although Brown did not then convey the Arkansas land, the executors made their transfer of the partnership property, 'in consideration of one hundred thousand dollars' that day received. And when the Buena Vista County judgment was taken in lieu of the Arkansas lands, it was stipulated that all collections made within the five years should be credited with interest on the $25,000 if the executors desired the repurchase to be made. So when Langdon wrote Brown on the 30th of October, 1875, he said, 'The balance of twenty-five thousand dollars, less what has been paid on the Buena Vista County judgment, will be due April 25, 1876, and we shall desire the money at that time as per contract.' He thus treated what was to be paid as a debt which the executors desired to have met at maturity. Brown evidently looked on the transaction in the same way, for, in his letter written a month after the time for repurchase had expired, he made no objection to the failure to tender a reconveyance on the day, and demand the payment of the money, but said, 'I shall not be able to pay you the money this year, and propose the following, which I trust will answer your purpose.' Under these circumstances, all that was necessary to put on Brown the obligation to take back the land and pay the money instead, was for the executors to signify to him in some appropriate way that they had concluded not to keep it in satisfaction of the sum for which it was to be taken. This need not necessarily be done on the day the repurchase was, under the contract, to be made. It was enough if at any time before the expiration of the five years the conclusion was finally reached and Brown properly notified. The reasonable presumption is that the parties expected the election would be made before the end of the time, because, as the money was to be paid on the day, some preparation would ordinarily be required to meet so large a demand. Time was material in the sense that the election must be made within the five years. If that was not done, the obligation of Brown to take back th p roperty was gone. He was not bound to repurchase unless the desire that he should do so was expressed in proper form before the time elapsed.

We proceed now to consider whether the executors did in fact make their election in proper form and within the time. This depends entirely on the letter of Langdon under date of the 30th of October, 1875, and the reply of Brown of the 26th of May following. No particular form of election was provided for in the contracts. All they required was that the proper representatives of the estate should, within the time, express to Brown their desire that he 'purchase back' the lands under the contract.

The letter of October 30 was written by Charles J. Langdon in his own name as executor, but he held the title to the property evidently with the assent of his co-executors. He wrote that he had left all the necessary papers with Mr. Slee, another of the executors, and concluded by saying that 'we shall desire the money at that time as per contract.' In what he did he was evidently acting for the estate, and as his acts have been adopted by all the executors as the basis of this suit, it is clear that his letter was at the time the expression of their will, and bound them so far as necessary to enable Brown to get the title from him if the money was paid as the contract required.

This letter did not in so many words say to Brown that the executors desired him to repurchase under the contract; but it did tell him they desired the money, which the contract called for only in the event of his repurchase. This could not be understood otherwise than as an expression of a desire that he purchase back the property, under the contract. And evidently it carried that idea to Brown, for he immediately began to treat for terms, not because he claimed not to be bound, but because, to use his own words, he was 'not able to pay.' His conduct corresponded in all respects with that of the executors, and his letter is not to be treated as a waiver of the neglect of the excutors to make their election at the day, but as a recognition of the fact that a proper election had been made and accepted.

It is claimed on the part of the appellants, however, that to enable the executors to recover they must prove 'both an election to sell and the delivery or tender of a deed on the day fixed for performance.' As we have already shown, it needed no tender of a deed on the day to require Brown to repurchase. It was enough if, before the expiration of the time, the executors made their election that he should do so, and signified it to him in proper form. That being done, the rights of the parties respectively under the contract were fixed. Brown became bound to repurchase and pay the money, and the executors to receive the money and reconvey. Either party could then require the other to perform, and neither could insist on the default of the other, so long as he was himself behind in his own performance. Brown could not demand a deed until he tendered the money, and the executors could not require the money until they had offered a deed. Neither party offered to perform on the day, and, therefore, one was as much in default as the other. Such being the case, either party, after relieving himself from his own default by performance or an offer to perform, could require the other to perform within a reasonable time. Neither could insist that the other had lost his rights under the contract until he had himself done what he was bound to do. The failure of both parties to perform on the day was equivalent to a waiver by each of the default of the other. The executors did offer to perform within a reasonable time after the day, and we think are entitled to recover.

As to the cross-bill. Upon this part of the case it must be assumed as a fact admitted of record, that when Langdon, the deceased partner, transferred his debt against Baldwin to the firm and got credit for it, he guaranteed in proper and legal form its ultimate collection, and that it was taken on the faith of this oblga tion on his part. The only question, therefore, is whether, under the contract between Brown and the executors, that obligation was assumed by Brown, or, in effect, discharged. Brown took the assignment of the estate's interest in the firm property, subject, among other things, to all possible liabilities of Langdon for the transactions of the firm, and he agreed to indemnify the estate against all liability growing out of such transactions. The acceptance of the transfer of the Baldwin debt was a firm transaction, and the guaranty of Langdon grew out of that transaction. If the debt should not in the end be paid, the balance might be charged back to Langdon when the affairs of the partnership were closed up, and his interest in the good assets would be diminished to the extent of such a charge. The firm, as a firm, could not sue him on his guaranty. All that could be done would be to take his liability into account when settlements and divisions were made between the partners. This liability occupied a position in no material respect different, so far as winding up the affairs of the partnership were concerned, from an ordinary overdraft in the progress of the business. It was a liability to which Langdon was bound to respond at the proper time. If, instead of buying out the interest of the estate, Brown had wound up the affairs of the partnership and divided the proceeds, the balance due from Baldwin might have been set off to the estate as so much cash, but he could not have sued the estate directly on the guaranty. The liability was one that could only be enforced as an incident to the settlement of the business, and a statement of the accounts between the partners. The contract between Brown and the executors made such a settlement and such a statement of accounts unnecessary. Brown took the place of the estate in the partnership, assumed all its liabilities to or for the firm, and agreed to pay $100,000 to the estate for what would be distributable to it from the assets on a full and final adjustment of the accounts of the individual partners, and the reduction of all the assets to money. That was the evident purpose of the parties as expressed by the contract they made. The averments of Brown as to the obligations of the estate are contradicted by the terms of the written instrument to which he refers, and on which the rights of the parties depend. There is no allegation of fraud or mistake in reducing the contract to writing. It follows that the demurrer to the cross-bill was properly sustained.

Decree affirmed.

title: Brown v. Slee/Opinion of the Court


text: Talk:Brown v. Slee/Opinion of the Court

title: Talk:Brown v. Slee/Opinion of the Court


text:
Richmond Mining Company v. Eureka Mining Company

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

This is a suit in ejectment brought by the Eureka Consolidated Mining Company against the Richmond Mining Company of Nevada to recover the possession of a valuable mining property. The facts appearing in the findings, which, in the opinion of the court, are decisive of the case, may be stated as follows:--

In Ruby Hill, a spur of Prospect Mountain, in the Eureka Mining District, Nevada, is a zone of limestone, running in a northwesterly and southeasterly direction for a distance of a little more than a mile. Underlying this zone, on the southerly side, is a well-defined unbroken foot-wall of quartzite, several hundred feet thick, and with a dip to the northward of about forty-five degrees. On the northerly side is an overhanging wall or belt of shale, also well defined and generally unbroken, which dips at an angle of about eighty degrees, and varies in thickness from less than an inch to seventy or eighty feet. At the easterly end of the zone these walls of quartzite and shale approach so closely as to be separated only by a seam less than an inch in thickness. From this point they diverge until on the surface, at the Eureka mine, they are about five hundred feet apart, and at the Richmond about eight hundred. At some depth below the surface they must come together if thy continue to descend on the same angle, and, on some of the levels that have been worked, they are already found to be only from two to three hundred feet apart. This zone of limestone, at some time since its original deposit, has been broken, fissured, and disintegrated in all directions, so as to destroy, except in a few places of a few feet each, all traces of stratification. In this way its original structure and character became totally changed, and it was fitted to receive the extensive mineral deposits which are found in the numerous fissures, caverns, and cavities, and in the loose material of the rock, in various forms. Sometimes the mineral appears in a series or succession of orebodies, more or less closely connected; sometimes in apparently isolated chambers, and again in small bodies and in scattered grains. Although barren limestone intervenes, the mineral is so generally diffused throughout the zone as to render the whole mineralized matter metal-bearing rock. Bodies of ore appear in croppings on the surface at various points throughout the whole length of the zone, along which mining claims have been located. No mineral has been found either in the quartzite or the shale, and no considerable indications of any have been discovered within a mile north or south of the limestone.

In 1864 the miners of the district abopted a system of laws and regulations for their government. At that time provisions were made for ledge locations only, and in February, 1869, it was found necessary to add some amendments to meet the requirements of the district. This was done by a resolution which contained a preamble as follows:-- 'Whereas, explorations have made it evident that the mineral in Eureka District is found more frequently in the form of deposits than in fissure-veins or ledges, and the laws of the district do not provide for the location of such deposits; and whereas, the deficiency in the law may give rise to expensive litigation,. . . the miners of Eureka District have adopted the following amendments to the old laws of the district.'

The amendments were to the effect that deposit claims might be located; that a deposit claim should consist of a piece of ground one hundred feet square, and be designated as a 'square;' that under certain circumstances such claims might be united; and that the owner should be entitled to all the mineral within his 'ground to an indefinite depth.'

On the 29th of May, 1869, after this amendment of the miners' laws, there was filed for record in the mining records of the district a 'square' location of the Lookout claim, being four hundred feet northerly and southerly and two hundred feet easterly and westerly, that is to say, 'one hundred feet on each side of the hill monuments for the centre, and. . . on the north end of Ruby Mill.' On the 20th of September, 1869, notice of a ledge claim, called the Tip-Top, was filed for record in the same records, and on the same day, by other parties, another claim, the Richmond, for 'seven locations of one hundred feet square,' and seven locations of two hundred feet each, on the Richmond ledge, more particularly described 'as located and situated adjoining the Champion claim on the south, and running morth from said Champion, south, and running north from said Champion, the claim known as the Tip-Top ledge.' Both the Tip-Top and Richmond claims included 'all dips, spurs, and angles.' The Tip-Top covered six hundred feet on the ledge and one hundred feet on each side. The Lookout adjoined the Richmond on the north.

The Eureka company, at some time before April 26, 1871, but at what precise date does not appear, became the owner of the Champion, Nuget, At Last, and Margaret claims. The Champion, At Last, and Margaret adjoined the Richmond and Lookout on the west. The Nuget adjoined the Champion, but its westerly line did not extend to the Richmond as originally located. The At Last adjoined the Champion, and the Margaret the At Last. The Nuget extended to and across the line between the zone of limestone and the quartzite, an t he distance across the four claims from the Nuget, on its southerly side, to the Margaret, on its northerly side, is seven hundred feet. It was not found in terms by the court below whether these claims extended the entire distance across the zone between the quartzite and the shale, but as it was found that the width of the zone, at the Eureka mine, was five hundred feet, and at the Richmond eight hundred, the fair inference is that the four claims belonging to the Eureka covered substantially the entire surface of the limestone between the end lines of the Chamption extended.

On the 26th of April, 1871, the Eureka company conveyed to the Richmond a triangular piece of ground in the southwesterly corner of the Champion claim, described by metes and bounds, and in the deed the following provision was made:--

'But it is expressly understood and agreed that this deed does not convey or quitclaim or release any ores, precious metals, veins, lodes, or deposits, dips, spurs, or angles not embraced within the above-mentioned boundaries, and that the party of the second part [Richmond company] agrees and covenants, for itself, its successors and assigns, to make no claim hereafter to any ground or ore or metals therein embraced within the Nuget, Champion, Lookout, At Last, Margaret, and other mining claims and locations now owned and possessed by the party of the first part [Eureka company], except as to that contained within the limits of the above-described triangular piece of ground.'

The Richmond company, in working its mine on the Richmond location, and in following the vein which cropped out on that location, got under the surface of the Lookout, which was then owned by the Eureka company. Controversies arose between the two companies as to their rights under their respective claims, which resulted, on the 16th of June, 1873, in a compromise, by which a dividing line was established, and the Eureka company agreed to convey to the Richmond all the mining ground and claim lying on the northwesterly side of this line, including the Lookout claim, and all veins, lodes, &c., and not to protest against any application by the Richmond company for a patent for the Richmond or other claims, provided such applications did not cross the line which was fixed. The Richmond company agreed to convey to the Eureka, with warranty against its own acts, all its right, title, and interest in and to the mining ground situated on the southeasterly side of the line, and in and to all ores, precious metals, veins, lodes, ledges, deposits, dips, spurs, or angles on, in, or under the land or mining ground, or any part thereof. Then follows in the agreement this clause: 'It being the object and intention of the said parties hereto to confine the workings of the said party of the second part [Richmond company] to the northwesterly side of the said line continued downward to the centre of the earth, which line is hereby agreed upon as the permanent boundary line between the claims of the said parties.' The line thus established was described as follows: 'Commencing on the northeasterly corner of the Margaret mining ground or claim,. . . running thence in a southeasterly direction along the edge of said Margaret ground, the At Last ground, and the Champion ground, to a point marked W on the map; thence southerly along the edge said Champion ground to the northeasterly corner of the Nuget ground, and thence along the edge of the Nuget ground to the northwesterly corner thereof.' The point W was at the beginning of the triangular piece of ground conveyed by the Eureka to the Richmond in 1871, and from there to the Nuget ground the line was the boundary between that triangle and the Champion.

Deeds were executed to perfect the conveyances contemplated by this agreement, and on the 30th of April, 1874, the Richmond company got a patent for its Richmond claim as surveyed, 'embracing a portion of the unsurveyed public domain, with the exclusive right of possession and enjoyment of all the land included within the exterior lines of said survy not herein expressly excepted from these presents, and of five hundred and one and one-half (501 1/2) lineal feet of the said Richmond vein, lode, ledge, or deposit, for the length hereinbefore described throughout its entire depth, although it may enter the land adjoining; and also of all other veins, lodes, ledges, or deposits throughout their entire depths, the tops or apexes of which lie inside the exterior boundary lines of said survey at the surface, extended downward vertically, although such veins, lodes, ledges, or deposits in their downward course may so far depart from a perpendicular as to extend outside the vertical side lines of said survey: Provided, that the right of possession hereby granted to such outside parts of said veins, lodes, ledges, or deposits shall be confined to such portions thereof as lie between vertical planes drawn downward through the end lines of said survey at the surface, so continued in their own direction that such vertical planes will intersect such exterior parts of said veins, lodes, ledges, or deposits.'

Before this time, on the 16th of July, 1872, the Eureka company got a similar patent for the Champion claim, and afterwards, on the 12th of December, 1876, for the At Last and the Nuget. This suit was begun on the 27th of March, 1877, and on the 30th of the same month the Eureka obtained a similar patent for the Margaret.

The Richmond company is also the owner of the Arctic and Utah claims, the first filed for record Oct. 4, 1876, and the last, Jan. 7, 1877.

The particular mining ground in dispute is situated within the zone of limestone which has been described, and within planes drawn vertically down through the end lines of the Champion claim as patented to the Eureka company, and within planes drawn vertically down through the extreme points of the patented locations of the At Last and the Margaret claims, at right angles to the course or strike of the zone, and produced so as to follow its dip. The top or apex of the zone is within the surface lines of the patents to the Eureka company, and the zone dips at right angles to its course, and on such a dip extends under the surface of the Arctic and Utah claims. The property also lies on the southeasterly side of the compromise line agreed on in the settlement of June 16, 1873, extended vertically downward so as to follow the dip of the zone. The end lines of the surveys of the Act Last and Margaret claims, as patented, are not parallel with each other.

The subjoined diagram represents the surface location of the respective claims. The dividing line established by the agreement of June 16, 1873, is that marked X. W. R.

Mr. Samuel M. Wilson and Mr. Thomas Wren for the plaintiff in error.

Mr. Harry I. Thornton, contra.

MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.


text: Talk:Richmond Mining Company v. Eureka Mining Company


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Richmond Mining Company v. Eureka Mining Company/Opinion of the Court

Upon the facts set forth in the preceding statement we have had no difficulty in reaching the conclusion that the judgment of the court below, sustaining the title of the Eureka company, was right. To our minds there cannot be a doubt that the compromise line was intended to fix permanently the boundary between the mining properties of the two companies at that point. The Richmond was to confine its workings to the north and west of the line, and the Eureka to the south and east. The Eureka had already got its patent for the Champion claim, which must have been older than the Richmond, for the Richmond location was bounded on the Champion, and by this patent was permitted to follow throughout their entire depth all veins, lodes, ledges, and deposits, the tops of apexes of which came to the surface within the lines of its survey. It is evident, also, that the Richmond company was seeking a similar patent for its Richmond claim, as by the terms of the settlement the Eureka was to withdraw its opposition, and in due time such a patent was obtained. The Eureka company also pushed forward its applications for patents to its other claims, and in the end got them all in the same form and with grants of the same privileges. In this way the companies secured from the United States the right to work the entire metal-bearing rock from the quartzite to the shale between the end lines of their patented surveys extended downwards and following the dip of the mineralized limestone zone. Their patents are all alike and their rights under them the same, save only that the Eureka is confined in its operations to the southeasterly side, and the Richmond to the northwesterly side of the agreed line.

In establishing this line it is to be presumed that the parties had in view the peculiar character of the property about which they had been contending. They were settling, as between themselves, their rights to mining property and for the purpose of carrying on mining operations in that locality. They must have known perfectly well from the observations they had already made, that but a small part of the immense mineral deposit in that zone would probably be found between the exposed surface of the limestone and the quartzite immediately underneath. What they wanted was to fix as between themselves their rights in following what is called in the findings 'the zone of metamorphosed limestone,' so as to reach the anticipated deposits in the depths below. A compromise which only settled their controversies to what was directly under the surface would not have accomplished this. The Richmond wanted to be relieved from all embarrassments in getting under the Lookout, and it is to be presumed the Eureka wanted similar privileges under the surface for the Champion and its other claims. For this purpose the parties had to secure the necessary grants from the United States, and the fair inference from what was done is that the Eureka was not to be interfered with in getting what it could on the south and east of the line, and the Richmond was to have the same privilege on the north and west.

The language used is to be construed with reference to the peculiar property about which the parties were contracting. Whether the limestone was or was not within the meaning of the acts of Congress and the understanding of miners, a single vein, lode, or ledge, it was all mineralized or metal-bearing rock as distinguished from the barren walls in which it was enclosed. It descended into the earth on an angle, and unless parties in working it could follow its course as it went down they could not avail themselves to the full extent of the wealth it contained. When, therefore, we find parties contending about their rights to its possession and finally agreeing on a line of division between themselves which shall be continued downwards towards the centre of the earth, the conclusion is irresistible that the line was to be extended downwards through the property in its course towards the centre of the earth. Anything less than this would make their settlement a mere temporary expedient to get rid of a present difficulty and leave their most important rights as much in dispute as ever. Such, we cannot believe, was the understanding.

This disposes of the case. The Richmond company is in no condition to dispute the validity of the Eureka's patents for the At Last and the Margaret because the end lines of the surveys are not parallel, as it has agreed with the Eureka, for a consideration, not to work in the limestone to the south and east of the compromise line. Upon the face of the patents the United States has granted to the Eureka the right to all veins, lodes, and deposits the tops or apexes of which lie on the inside of its surveys as patented, throughout their entire depth and wherever they may go, provided it keeps itself within the end lines of the surveys. The finding that the ground in dispute is within the end lines and that the apex is within the surface lines settles the rights of the parties between themselves as well under their patents as under their compromise agreement.

Judgment affirmed.


text: Talk:Richmond Mining Company v. Eureka Mining Company/Opinion of the Court


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The New International Encyclopædia/Gutzkow, Karl

GUTZKOW, gōōts'kṓ, (1811-78). A distinguished German novelist and dramatist, born in Berlin. He studied theology and philosophy in Berlin and early contributed to literary journals. He subsequently studied law and political sciences at Heidelberg and Munich, but devoted himself exclusively to literature. His early fiction is

satirically skeptical, as is implied in the title of his first significant novel, Wally, die Zweiflerin (1835), for which he was imprisoned and all his writings forbidden, with the usual result of making them and him widely popular. This work is usually taken as the starting-point of the school known as Young Germany, literary reformers heralding the democratic upheaval of 1848. After his release from prison Gutzkow went to Hamburg, and wrote four powerful dramas: Richard Savage (1839); Zopf und Schwert (1844); Das Urbild des Tartüffe (1847); Uriel Acosta (1848), and others of less merit. In 1847 he went to Dresden as director of the Court Theatre (till 1850), and wrote two remarkable novels, Die Ritter vom Geiste (9 vols., 1850-52), and Der Zauberer von Rom (9 vols.. 1859-61). From 1852 to 1862 he edited the family weekly Unterhaltungen am häuslichen Herd. In 1864 he had an attack of insanity, and though after his recovery he continued to write voluminously, he never regained his power. Gutzkow's strong controversial purpose obscured his artistic genius, but his work has profoundly influenced the popular thought of modern Germany, and gives one of the best pictures we have of the intellectual life and the social struggle of his generation and nation. Consult: Prölss, Das junge Deutschland (Stuttgart, 1892); Frenzel, Erinnerungen und Stromungen (Leipzig, 1890); Houben, Studien über die Dramen Gutzkows (Jena, 1899); Caselmann, Karl Gutzkows Stellung zu den religiös-ethischen Problemen seiner Zeit (Augsburg, 1900).


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Railroad Company v. Hamersley

ERROR to the Supreme Court of the State of Connecticut.

The facts are stated in the opinion of the court.

Mr. R. D. Hubbard and Mr. C. E. Perkins for the plaintiff in error.

Mr. William Hamersley and Mr. John R. Buck, contra.

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

title: Railroad Company v. Hamersley


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Railroad Company v. Hamersley/Opinion of the Court

The New Haven and Northampton Company is a Connecticut corporation, authorized to construct and operate a railroad from New Haven, through the town of Southington, to the Massachusetts State line. It has full power to erect and maintain toll-houses and other buildings for the accommodation of its coneerns, as it may deem suitable for its interest; but its charter may 'be altered, amended, or repealed at the pleasure of the General Assembly.' In 1848, after the road was built, three stations were established in the town of Southington, named respectively Southington, Plantsville, and Hitchcock's, at which trains stopped for freight and passengers.

In 1866, the General Assembly of the State passed a statute which contained the following provision in respect to the abandonment of railroad stations:--

'No railroad company shall abandon any station on its road in     this State after the same has been established for twelve      months, except by the approval of the railroad commissioners,      given after a public hearing held at such station, notice of      which shall be posted conspicuously in said station for one      month prior to the hearing.'

In November, 1873, the company became desirous of abandoning one or more of its stations in Southington, and for that purpose presented a petition to the railroad commissioners, representing that two stations properly located would be ample for the public convenience, and asking that the matter might be inquired into, and that the Southington or Plantsville station, or both, might be discontinued, and two stations, and only two, located in the town, where the common good of all parties in interest would be most promoted. The requisite notice was given, and the commissioners having heard the application, on the 3d of February, 1874, made the following order:--

'After a careful and full examination of the locality and business surroundings of the present located stations, and an extended hearing of all the appearing parties in interest, with their evidence and arguments of counsel, the railroad commissioners do find and approve, and do hereby order, that the New Haven and Northampton Company may discontinue and abandon the present stations of Southington and Plantsville, as at present located, under and by complying with the following provisions and conditions, viz.:--

'The New Haven and Northampton Company shall provide and erect a passenger station house near their new freight depot, as shown on the map exhibited and submitted, and after and in compliance with the plans and profiles also submitted for said passenger station building, and provide suitable and convenient approaches thereto; also suitable, convenient, and easy approaches to their new freight depot; all of which shall be done to the acceptance of the railroad commissioners. Said company shall also continue the same facilities for receiving and shipping freight by the car-load and unbroken, as at present enjoyed, to each and all of the parties who patronize their railroad by receiving and shipping freight thereby.'

Before this time the company had bought the ground and erected buildings adapted to freight business at the place indicated in the order. It afterwards, at an expense of $10,000, put up a building for passenger purposes, as required by the commissioners. This being acceptable to the commissioners, the stations of Southington and Plantsville were abandoned by the company, and both passentger and freight trains stopped at the new place only.

The succeeding legislature passed an act, approved July 15, 1875, 'establishing a depot at Plantsville.' It is as follows:--

'SECT. 1. That if, at any time within six months after the     passage of this act, any of the petitioners and others who      may act with them for that purpose shall erect at      Plantsville, contiguous to the railroad a depot building, and      convey the same, with the land on which it is situated, and      the land reasonably necessary for the approaches thereto by      the railroad trains, to the New Haven and Northampton      Company, to be used for railroad purposes, it shall thereupon      become the duty of said company, and it is hereby ordered, to      stop at such depot thereafter its regular passenger and      freight trains passing over said railroad, for the purpose of      receiving and discharging passengers and freight. And all the     provisions of the Revised Statutes applicable to railroad      depots and stations shall be applicable to said depot in the      same manner as though said depot had been erected and      established by said company.

'SECT. 2. Said order may be enforced by mandamus by the     attorney for the State for the county of Hartford, or at the      relation of any inhabitant of the town of Southington, in      said county, and the charter of the New Haven and Northampton      Company is hereby amended according to the provisions of this      act.'

The petitioners named complied with the provisions of the act, and, having tendered the company a conveyance of suitable depot grounds and buildings at Plantsville, demanded that the regular passenger and freight trains running on the road be stopped there. This the company refused to do, and the attorney for the State for the county of Hartford now seeks by mandamus to enforce the law. The court below gave judgment against the company, holding, among other things, that the act of 1875 did not impair the obligation of any contract rights which the company had acquired from the State. Upon this ground the case has been brought here by writ of error.

It was conceded in the argument that there is nothing in the charter to prevent the State from passing the law complained of. Confessedly the power of amendment which was reserved meets this part of the case; but it is claimed that by the action of the railroad commissioners the State has become bound by a contract not to exercise its legislative power so as to require the establishment of a depot at Plantsville.

As it seems to us, the court of errors of the State took the right view of the statute under which the commissioners acted, when they said, in State of Connecticut v. New Haven & Northampton Co. (37 Conn. 153, 163), that its object was 'to prevent railroad companies from arbitrarily changing their places of business on the road, to the prejudice of those who, relying on the permanency of such places, shape their business accordingly.' The powers of the commissioners, as agents of the State, in this particular, are confined to such as are necessary for the accomplishment of that object. They may, after a public hearing, approve of, that is to say, give the assent of the State to, the abandonment of a station which has been established twelve months or more; and that is all they can do. They may, as was held in State v. New Haven & Northampton Co. (42 id. 56), direct that their approval take effect only when the company shall have provided suitable accommodations for the public at some other place; but that is only a conditional approval of the abandonment. When the new accommodations have been provided and the old station abandoned, nothing more has been accomplished, so far as the company is concerned, than a lawful abandonment of an old place of business. The powers of the State over the charter remain just as they were before. Until the act of 1866 the company could abandon its stations at will, and the State by charter amendment, or even by a general law, might require their restoration. After that act the power of abandonment by the company was restricted, but the State retained all its old authority. The commissioners were given no power to contract for the State or the public. All they could do was to say yes or no to a simple request by the company for leave to abandon an old station. If they said yes, the abandonment might be made; if no, the station must be continued. In this case the commissioners said, 'Yes, when the new accommodations are furnished.' The new accommodations were furnished, and the station was abandoned accordingly. Such, in the case last cited, was the view which the court of errors took of what had been done, and we think it is correct. The commissioners entered into no agreement with the company. They simply said, complete your proposed accommodations at the new station, and we, for the State, will assent to your abandonment of the old one. It follows that the new law impaired no contract obligation of the State, and the judgment of the court of errors is consequently

Affirmed.


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