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Board of County Commissioners of the County of Anderson v. Beal/Opinion of the Court

This is an action at law, brought in the circuit court of the United States for the district of Kansas, by Thomas P. Beal against the board of county commissioners of the county of Anderson, in the state of Kansas, to recover the amount of 90 coupons for $70 each, due January 1, 1881, and the same amount due January 1, 1882. The coupons were cut from bonds alike, except as to their numbers, of the following form:

'No.___. COUNTY OF ANDERSON. 1,000.

'UNITED STATES OF AMERICA,

STATE OF KANSAS.

'Know all men by these presents, that the county of Anderson     acknowledges to owe and promises to pay to Leavenworth,      Lawrence & Galveston Railroad Co., or bearer, one thousand      dollars, lawful money of the United States of America, on the      first day of January, in the year of our Lord one thousand      nine hundred, at the Farmers' Loan and Trust Co. Bank, in the      city of New York, with interest at the rate of seven per      centum per annum, payable annually on the first day of      January in each year, on the surrender of the annexed coupons      as they severally become due.

'This bond is executed and issued under the provisions of and     in conformity to an act of the legislature of the state of      Kansas, approved February 26, 1866, entitled 'An act to amend      an act entitled An act to authorize counties and cities to      issue bonds to railroad companies,' approved February 10,      1865, and in pursuance to the vote of the electors of      Anderson county, of September 13, 1869.

'In testimony whereof, the board of county commissioners of     the said county of Anderson have caused these presents to be      signed by the chairman of said board and by the clerk of the county, and to be sealed with the seal of said county,      and to be registered by the treasurer of said county.

'Dated January 1, 1870.

[Seal.]

'H. CAVENDER, Chairman.

'A. SIMONS, Treasurer.

J. H. WILLIAMS, Clerk.'

'No. ___. $70.

'The county of Anderson, state of Kansas, will pay to the     Leaven worth, Lawrence & Galveston Railroad Company, or      bearer, at the Farmers' Loan & Trust Co.'s Bank, in the city      of New York, on the first day of January, A. D. 188_, seventy      dollars, interest due on their bond.

'J. H. WILLIAMS, County Clerk.'

The petition avers, as to each bond, that it erroneously recited that it was issued under the provisions of the act of February 20, 1866, whereas it was issued 'under the provisions of, and in conformity to, the laws of the state of Kansas then in force, and in pursuance to the vote of the electors of Anderson county, of September 13, 1869, at an election regularly and duly ordered and held for that purpose;' that the bond was issued in payment of a subscription theretofore made by the county to the capital stock of the Leavenworth, Lawrence & Galveston Railroad Company; that on March 27, 1872, the bond was duly registered in the office of the auditor of the state; that, as each coupon falling due prior to January 1, 1881, matured, the same was paid by the officers of the county with the proceeds of a tax levied and collected each year by said county from its tax-payers for that purpose; and that, after said registration, and before the coupons became due, they became, for value, the property of the plaintiff.

The answer admits that, pursuant to an order passed by the board of county commissioners of the county on the eleventh of August, 1869, ordering a special election therefor, the said board submitted to the qualified voters of the county the, question of issuing bonds to said company, a copy of the order being annexed to the answer. It avers that the bonds were issued without any consideration therefor, and without authority of law, and a vote was taken in the county on the thirteenth of September, 1869, pursuant to said submission, without the legal notice of 30 days having been given, at which election a majority of the persons voting voted in the affirmative; that up to the first of January, 1870, and for some time thereafter, the company's track was not completed, equipped, or in full operation to the town of Garnett; that on the fifth of November, 1869, the company, through its president, Mr. Joy, corruptly induced Cavender and Lowry, who were a majority of the board, to agree to subscribe for 2,000 shares, of $100 each, of the capital stock of the company, and to sell and transfer the stock, for one dollar, to Joy, and to issue to Joy, in trust for the company, to be delivered by him to the company, when the road should be completed to Garnett, $200,000 of the bonds of the county; that for that purpose the commissioners made an order on that day, of which a copy is annexed to the answer, and carried out said agreement; and that the plaintiff had knowledge of such corrupt agreement and of said facts before he acquired any of said bonds or coupons. There was a reply denying all the allegations of the answer. The case was tried by a jury, which found a verdict for the plaintiff for $14,321.34, for which amount, with costs, judgment was rendered. The defendant has brought a writ of error.

There is a bill of exceptions setting forth all the evidence. The order of August 11, 1869, made by the board, was as follows:

'Ordered by the board, that a special election be held in the     several voting precincts in the county of Anderson, on      Monday, September 13, 1869, whereat shall be submitted to the      qualified voters, electors of said county, for adoption or      rejection, the following proposition, to wit: Shall the      county of Anderson subscribe $200,000 to the capital stock of      the Leavenworth, Lawrence & Galveston Railroad Company, and      issue the bonds of the county in payment thereof; said bonds      payable thirty years after their date, bearing interest at the      rate of 7 per cent. per annum, payable annually; said bonds     to bear date of January 1, 1870, and to be issued and      delivered to said railroad company on the first day of      January, A. D. 1870, and before that time, if said railroad      shall on or before that time complete its line of railway to      the town of Garnett, in said county; and, if said line of      railway shall not be completed thus far by that time, then      said bonds to be issued and delivered when said line of      railway is completed to the town of Garnett, in said county,      provided the county of Anderson be released from all      propositions or votes taken to subscribe stock and issue      bonds to said railroad company. Electors desiring to vote on     the above proposition shall have their tickets written or      printed as above, and shall add thereto, for or against the      subscription of stock to the Leaven worth, Lawrence &      Galveston Railroad Company, as the electors may desire to      vote.

H. CAVENDER, Chairman.

'REUBEN LOWRY, Member.

'Attest: J. H. WILLIAMS, Clerk.' Among the proceedings of the     board were these:

'COUNTY CLERK'S OFFICE, GARNETT,

'ANDERSON COUNTY, KAN., September 17, 1869.

'Board of county commissioners met pursuant to law for the     purpose of canvassing returns of the election held in said      county on the thirteenth day of September, 1869, for the      purpose of voting upon a proposition to vote stock to certain      railroad companies.

'Present: H. Cavender, chairman; J. B. Lowry, members     present; and we find the vote as follows:--'

Then follows a statement showing that there were 551 votes in favor of the proposition, and 372 against it, and the following certificate:

'We hereby certify that the proposition to subscribe stock to     the Leavenworth, Lawrence & Galveston Railroad Company received five hundred and fifty-one votes, and that there      were three hundred and seventy-two votes against said      proposition.

H. CAVENDER, Chairman.

'J. B. LOWRY, Member.

'Attest: J. H. WILLIAMS, Clerk.'

The order of November 5, 1869, made by the board, contained the following:

'Resolved, that the board of county commissioners of Anderson county, Kansas, for and in behalf of Anderson county, in accordance with the vote heretofore had and taken of the electors of said county to that effect, hereby subscribe for two thousand shares of the capital stock of the Leavenworth, Lawrence & Galveston Railroad company, of one hundred dollars each, making in amount two hundred thousand dollars.

'Resolved, that the stock above subscribed for by this board in behalf of Anderson county is hereby sold and transferred, for and in consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, to James F. Joy, president of said railroad company, and the chairman of this board is authorized to sign a transfer of said stock to said James F. Joy, and to assign the certificate for said stock issued to Anderson county by said railroad company, and to authorize, in such assignment, the necessary transfer of said stock on the books of said company.'

Among the proceedings of the board were these:

'COUNTY CLERK'S OFFICE, GARNETT, July 8, 1870.

'Board of county commissioners met pursuant to adjournment;     full quorum present; minutes of preceding meeting read and      approved.

'Whereas, on the fifth day of November A. D. 1869, the board     of county commissioners of Anderson county, state of Kansas,      did formally issue to the Leavenworth, Lawrence & Galveston      Railroad Company the bonds of Anderson county to the sum of $200,000, according to provisions of the vote of the      electors of said county, and did place the said bonds in the      hands of James F. Joy, to be delivered to said railroad      company when the said reilroad should be completed to the      town of Garnett, said bonds to bear interest at the rate of 7      per cent. per annum from the first day of January, 1870, but     in case said railroad should not be completed to Garnett by      the first day of January aforesaid, the interest accruing      upon said bonds from said first day of January, 1870, to the      time said road should be completed to said town of Garnett      should be canceled.

'And whereas, on the eighth day of July, 1870, M. R. Baldwin,     sup't of said L., L. & G. R. R. Co., did certify to this      board that said railroad was completed, equipped, and      operated to the town of Garnett on the first day of March,      1870:

'Therefore, this board do authorize the same James F. Joy to     deliver said bonds to said railroad company upon returning      the coupons of said bonds, and the amount of interest accrued      upon said bonds between the first day of January and March,      1870, to the treasurer of Anderson county.

'Minutes read and approved. On motion, board adjourned to     meet on Tuesday, July 19, 1870, at 9 A. M.

GEO. W. ILER,

'Chairman of the Board of County Commissioners, Anderson     County, Kansas.

'Attest: [Seal.] J. H. WILLIAMS, Clerk.'

'COUNTY CLERK'S OFFICE,

'ANDERSON COUNTY, KAN., September 5, 1870.

'Being the first Monday of September, 1870, board of county     commissioners met pursuant to law. Present: Geo. W. Iler,     chairman, J. B. Lowry, and J. W. Vaughn. Met for the purpose     of levying taxes for the year 1870, at which time the      following taxes were levied, to be collected for the year      1870, to-wit: That there be levied on all the taxable      property of said county the sum of four mills per dollar on      all taxable property of said county, for road purposes. It is     hereby ordered that there be levied on the taxable property      of Anderson county the sum of 7 1/2 mills per each dollar, to      pay ten months' interest on the bonds of said county, issued to the      Leavenworth, Lawrence & Galveston Railroad Company, for the      year 1870; the two months' interest from January 1, 1870, to      March 1, 1870, having been agreed upon between said railroad      company and the board of county commissioners, to be      canceled.

'Iler and Vaughn, for the levy.

'J. B. Lowry enters his protest as follows:

'The undersigned, commissioner of Anderson county, protests     against the action of the majority of said board in the      matter of the levying of taxes for the payment of the      interest on the L., L. & G. R. R. bonds for the following      reasons, to-wit:

'Said bonds are not legally in the hands of said railroad     company, if in the hands of said railroad company at all.

J. B. LOWRY,

'Member of the Board of County Commissioners of Anderson     County.

'Attest: [Seal.] J. H. WILLIAMS, Clerk.'

After the plaintiff had offered in evidence the coupons sued upon, and one of the bonds, (the bond having on it a certificate of the auditor of the state, dated March 27, 1872, that it had been regularly issued, and had been duly registered in his office under the act of March 2, 1872, and a guaranty by the company of the payment of it and of its coupons,) and the order of August 11, 1869, and the proceedings of September 17, 1869, and July 8, 1870, and September 5, 1870, and a copy of of the registration of the bonds in the office of the auditor of the state, he rested his case. Thereupon the defendant demurred to the evidence, and asked the court to declare the law to be that upon the pleadings and proofs the plaintiff was not entitled to recover; but the court refused so to do, and the defendant excepted.

The defendant then introduced the two resolutions of November 5, 1869, above set forth, and also gave evidence for the purpose of showing that previous notice of the holding of the election was published in a newspaper at Garnett only 24 days before the day of the election, and not 30 days. There was also evidence given in reply by the plaintiff to show that the county paid the interest on the bonds every year, down to that which fell due January 1, 1881; that in March, 1872, when the bonds were registered in the office of the auditor of the state, they belonged to the company, and that it afterwards sold them for full value to various parties. At the close of the evidence the court instructed the jury to find a verdict for the plaintiff; and the defendant excepted to such instruction.

Bergen, for plaintiff in error.

Wallace Pratt and ''Jeff. Brumback'', for defendant in error.

[Argument of Counsel intentionally omitted]

Mr. Justice Blanchford delivered the opinion of the court. He recited the facts, as above stated, and continued:

It is not disputed that the recital, in the bond, that it was issued under the act of February 26, 1866, was an error. That act (Sess. Laws Kan. 1866, c. 24, p. 72) authorized county subscriptions to the stock of railroad companies, when authorized by a majority of the votes cast at a county election, if 20 days' notice of the election had first been given 'in some newspaper published and having general circulation in the county, or, in case there be no paper published in the county, then by written or printed notices posted up in each election precinct, twenty days previous to the day of such election;' and it authorized bonds of the county to be issued in payment for the stock. But it was repealed by the enactments of sections 1 and 2 of chapter 119 of the General Statutes of Kansas of 1868, pp. 1123, 1127, and for it were substituted sections 51, 52, and 53 of chapter 23 of such General Statutes of 1868, entitled 'An act concerning private corporations,' pp. 203, 204. Those sections authorized subscriptions by counties to the stock of railway companies created by Kansas, if the subscription was first assented to by a majority of the qualified voters of the county, at an election of which notice should be given 'at least sixty days before the holding of the same.' By the act of February 27, 1869, (Sess. Laws Kan. 1869, c. 29, p. 108,) sections 51, 52, and 53 of chapter 23 of the General Statutes of 1868 were repealed, and the following sections were substituted:

'Sec. 51. The board of county commissioners of any county, the city council of any city, or the trustees of any incorporated town, may subscribe for and take stock for such county, city, or town in, or loan the credit thereof to, any railway company duly organized under this or any other law of the state or territory of Kansas, upon such conditions as may be prescribed by the aforesaid county, city, or town authorities: provided, however, that a majority of the qualified voters of such county, city, or town, voting upon such question of subscribing and taking such stock, shall, at a regular or special election to be held therein, first assent to such subscription, and the terms and conditions prescribed as aforesaid, upon which the same shall be made: and provided, further, that when such assent shall have been given, to such subscription as aforesaid, it shall be the duty of the said county, city, or town authorities, as the case may be, to make such subscription.

'Sec. 52. A special election may be ordered by the county commissioner of any county, the city council of any city, or the corporate authorities of any town, at any time, for the purpose of ascertaining the sense of the voters of such county, city, or town, as contemplated in the preceding section. Notice of such election shall be given at least thirty days before the holding of the same, and the question or questions to be submitted thereat shall be set forth in such notice.

'Sec. 53. Upon the making of such subscription, such county, city, or town shall thereupon become, like other subscribers to such stock, entitled to the privileges granted, and subject to the same liabilities imposed by this act, or by the charter of the company in which such stock is taken, except as the same shall be varied and limited by the terms and conditions upon which the said subscriptions shall have been authorized and made. And it shall be the duty of the board of county commissioners, or city council, or trustees of the town, making such subscription as aforesaid, to pay for the same, and the stock thereby agreed to be taken by such county, city, or town, by issuing to the company entitled thereto, the bonds of such county, city, or town, at par, payable at a time to be fixed, not exceeding thirty years from the date thereof, bearing interest at the rate of seven per cent. per annum, and with interest coupons attached.'

It is very clear that there was legislative authority, under the act of 1869, for the issuing of the bonds in question. There was an election, and the requisite majority of those who voted assented to the proposition for the subscription to the stock and the issue of the bonds, and the subscription was made by the proper officers, and they issued the bonds, and when it was certified to them that the road was completed to Garnett they authorized the bonds to be delivered to the company, and the bonds were delivered in payment for the subscription and for the stock agreed to be taken. The only question made is as to the notice of the election.

It is contended that the recital in the bond, that it is issued under the provisions of the act of 1866, is a recital that only 20 days' notice of the election was given. But the meaning of the act of 1866 was that at least 20 days' notice should be given, and even if the recital amounted to a statement that the notice prescribed by that act had been given, it would not necessarily mean that exactly 20 days' notice, or only 20 days' notice, had been given. In the case of McClure v. Township of Oxford, 94 U.S. 429, cited by the defendant, the bonds were issued under an act which took effect only 18 days before the election was held, and, as the act required 30 days' notice of the election, it was held that the face of the bond, with the act recited in it, showed that the statute had not been complied with. Wherever the want of legislative authority appears by the face of the bond, taken in connection with the act which the bond mentions, every taker of the bond has notice of the want of power. But no such case is here presented. The bond recites the wrong act, but if that part of the recital be rejected, there remains the statement that the bond 'is executed and issued' 'in pursuance to the vote of the electors of Anderson county, of September 13, 1869.' The act of 1869 provides that when the assent of a majority of those voting at the election is given to the subscription to the stock, the county commissioners shall make the subscription, and shall pay for it, and for the stock thereby agreed to be taken, by issuing to the company the bonds of the county. The provision of section 51 is 'that when such assent shall have been given,' it shall be the duty of the county commissioners to make the subscription. What is the meaning of the words 'such assent?' They mean, the assent of the prescribed majority, as the result of an election held in pursuance of such notice as the act prescribes.

The county commissioners were the persons authorized by the act to ascertain and determine whether 'such assent' had been given; and necessarily so, because, on the ascertainment by them of the fact of 'such assent,' they were charged with 'the duty'-that is the language-of making the subscription, and the duty of issuing the bonds. They were equally charged with the duty of ascertaining the fact of the assent. The record evidence of their proceedings shows that their order for the election was made 33 days before the election was to be held; that they met 'pursuant to law for the purpose of canvassing returns of the election;' that they discharged that duty and certified that there was a majority of votes in favor of the proposition; that in November, 1869, they resolved that, 'in accordance with the vote, heretofore has and taken, of the electors of said county to that effect,' they subscribed for the stock; and that in July, 1870, in their order authorizing the bonds to be delivered by Joy to the company, they recited that the bonds were issued 'according to the provisions of the vote of the electors of said county.' In view of all this, the statement by the commissioners, in the bond, that it is issued 'in pursuance to the vote of the electors of Anderson county, of September 13, 1869,' is equivalent to a statement that 'the vote' was a vote lawful and regular in form, and such as the law then in force required, in respect to prior notice. The case is, therefore, brought within the cases, of which there is a long line in this court, illustrated by Town of Coloma v. Eaves, 92 U.S. 484, 491, and which hold, in the language of that case, that 'where legislative authority has been given to a municipality or to its officers to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with the power to decide whether the condition precedent has been complied with, their recital that it has been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunals.' This doctrine is adhered to by this court. Dixon Co. v. Field, 111 U.S. 83, 93, 94; S.C.. 4 SUP. CT. REP. 315.

In the present case, there was nothing shown to rebut the presumption arising from the production of the coupons, that the plaintiff was prima facie the holder of them for value. The defendant did not show any want, or failure, or illegality, of consideration. By the passage of the first resolution of November 5, 1869, the board thereby subscribed for the stock. The transactions between the board, on the one side, and Mr. Joy, as president of the company, and the company, on the other side, before and at the time the bonds were finally delivered to the company, were an acceptance of the subscription. The statute (section 53) provided that, on the making of the subscription, the bonds should be issued to the company, to pay for the subscription and for the stock agreed to be taken. When the bonds were delivered to the company the transaction was complete, and the bonds, as they afterwards passed to bona fide holders, passed free from any impairment by reason of any dealing by the board with the stock subscribed for, to which the county became entitled by the issuing and delivery of the bonds. The board may have committed an improper act in parting with the stock, but that is no concern of a bona fide holder of the bonds or coupons.

It is further to be said that if there was in fact any want of proper notice of the election, the omission was only an irregularity in the exercise of an express power to issue the bonds,-an irregularity in respect to a step forming part of preliminary conditions,-and that the failure of the municipality and of the tax-payers to enjoin the issue or use of the bonds, during the long period from the day of the election, September 13, 1869, until the bonds were registered in March, 1872, when they still belonged to and were in the hands of the company, coupled with the annual payment by the county, for 10 years, of the interest on the bonds, are sufficient grounds for holding that the municipality is estopped from defending on the ground of such non-compliance with a condition precedent as is set up in this case, after the bonds have been negotiated for value by the company. The record of the proceedings of the board shows that a tax was levied to pay the interest which fell due January 1, 1871, while the company still held the bonds.

There was no error in overruling the demurrer to the evidence which the plaintiff had given to sustain his case at the time the demurrer was interposed, or in overruling the motion to instruct the jury at that time that upon the pleadings and proofs he was not entitled to recover. Upon such evidence, all of which was record evidence, admitted without objection, and involving no disputed question of fact, but only matters of law, the plaintiff was entitled to recover, as has been shown. For the same reasons, it was not error to instruct the jury, at the close of the trial, to find a verdict for the plaintiff. The only defenses set up in the answer were those as to the notice of the election and as to the transfer of the stock to Joy. The first resolved itself into a question of law, and the latter was immaterial. The defendant did not ask to go to the jury on any question of fact, and if a verdict had been rendered for the defendant, it would have been the duty of the court, under the views of the law above laid down, to set it aside.

In Pleasants v. Fant, 22 Wall. 116, 120, this court said, by Mr. Justice MILLER, citing Improvement Co. v. Munson, 14 Wall. 448, that 'in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.' Those cases were cited in Herbert v. Butler, 97 U.S. 319, 320, and this court there said, by Mr. Justice BRADLEY: 'Although there may be some evidence in favor of a party, yet if it is insufficient to sustain a verdict, so that one based thereon would be set aside, the court is not bound to submit the case to the jury, but may direct them what verdict to render.' It is true that in the above cases the verdict was directed for the defendant. But where the question, after all the evidence is in, is one entirely of law, a verdict may, at the trial, be directed for the plaintiff, and where the bill of exceptions, as here, sets forth all the evidence in the case, this court, if concurring with the court below in its views on the questions of law presented by the bill of exceptions and the record, will affirm the judgment.

In Bevans v. U.S. 13 Wall. 56, a verdict was directed for the United States, in a suit by them on the official bond of a public officer, and the ruling was sustained, the evidence for the plaintiff being all of it documentary; this court saying, by Mr. Justice STRONG: 'The instruction was, therefore, in accordance with the legal effect of the evidence, and there were no disputed facts upon which the jury could pass.' The same rule was applied in Walbrun v. Babbitt, 16 Wall. 577, to the direction of a verdict for the plaintiff, after oral evidence which this court states 'was received without objection, and about which there is no controversy,' and on which it says it bases its decision. That was a suit to recover the value of goods transferred in fraud of the bankrupt law.

In Hendrick v. Lindsay, 93 U.S. 143, the circuit court directed the jury to find for the plaintiffs, in an action on a bond of indemnity, the plaintiff's evidence being all of it documentary, and the defendant giving no evidence. This court said, by Mr. Justice DAVIS: 'There were no disputed facts in this case for the jury to pass upon. After the plaintiffs had rested their case, the counsel for the defendant announced that he had no evidence to offer; and thereupon the court, considering that the legal effect of the evidence warranted a verdict for the plaintiffs, told the jury, in an absolute form, to find for them. This was correct practice where there was no evidence at all to contradict or vary the case made by the plaintiffs; and the only question for review here is whether or not the court mistook the legal effect of the evidence.'

In Arthur v. Morgan, at this term, (112 U.S. 495; S.C.. ante, 241,) after oral evidence for the plaintiff, there being no evidence for the defendant, the court below had directed a verdict for the plaintiff for the recovery of excessive duties paid under protest, to which direction the defendant had excepted, and this court, treating the question as one of law, as to the proper rate of duty, on undisputed facts, affirmed the judgment.

These decisions are controlling on the point. Judgment affirmed.


text: Talk:Board of County Commissioners of the County of Anderson v. Beal/Opinion of the Court

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text:
Harvey v. United States (113 U.S. 243)

Enoch Totten, for Harvey.

Asst. Atty. Gen. Maury, for United States.

BLATCHFORD, J.

title: Harvey v. United States (113 U.S. 243)


text: Talk:Harvey v. United States (113 U.S. 243)


text:
Harvey v. United States (113 U.S. 243)/Opinion of the Court

This case was before this court at October term, 1881, and is reported as Harvey v. United States, 105 U.S. 671. The history of it is there fully given, and, in connection with the reports of it in 8 Ct. Cl. 501, 12 Ct. Cl. 141, and 13 Ct. Cl. 322, what occurred in it prior to the decision of this court can be fully understood. The court of claims had dismissed the petition of the claimants, filed August 30, 1876, under the special act of congress passed August 14, 1876, c. 279, (19 St. 490.) This dismissal involved the rejection of two items sued for in such petition: (1) Labor done and materials furnished by the claimants in constructing the coffer-dams, and in performing the work necessarily connected therewith, and preliminary to the masonry work for the piers and abutments, $75,000; (2) loss and damages, resulting to the claimants in consequence of the reduction of the dimensions of the piers and abutments, made subsequently to the making of the contract, $33,600. The decision of the court of claims in regard to item (1) was that the claimants had not shown that the written contract did not express the intent of both parties as to the coffer-dams, and that, even if that court were satisfied that the claimants executed the contract in mistake of their rights, there was no evidence that the defendants shared the mistake. Its decision in regard to item (2) was that it would be disposed to regard the case, on the facts, as one for equitable interposition, for the purpose of further inquiry and the ascertainment of the rights of the parties in equity, if it had jurisdiction, but that the statute did not authorize it to entertain those considerations, because, in the proceedings before it, it could hear and determine only claims for labor done and materials furnished by the claimants under their contract with the defendants.

This court held that the ruling of the court of claims in regard to item (1)-the coffer-dams-was erroneous, and that, by the actual contract between the parties, the claimants were not to do any of the work covered by the claim made by them under item (1,) and that the written contract must be reformed accordingly. As to item (2,) this court held, that the court of claims had placed too limited a construction upon the special act of congress, and that its power, under that act, extended to reforming the contract in respect to permitting the officers of the United States to materially vary the plans for the piers, so as to essentially change the obligations of the parties. The decree of the court of claims was reversed, and the cause was remanded, with directions to proceed in it according to law and in conformity with the opinion of this court.

The court of claims (18 Ct. Cl. 470) proceeded to determine what the claimants did in constructing coffer-dams; and in pum ing the water from the space inclosed in them, and in excavations for the preparation of the beds for the masonry. It held that, as the claimants had been notified, at the outset, that the defendants expected them to do such work, and had, on their part, notified the defendants that they would do it and would hold the defendants liable for the cost and expense, it was their duty to keep and produce accurate accounts thereof, and they could not prove such cost and expense by the evidence of experts as to the value. But the court gave to them the benefit of the testimony of experts introduced by the defendants, and, on that testimony, awarded to the claimants $16,250.95 for the labor done and materials furnished by them in constructing coffer-dams, and in performing the work necessarily connected therewith, and preliminary to the mason work for the piers and abutments referred to in the contract, the same being on account of item (1) above referred to. A judgment having been entered against the United States for that sum, both parties have appealed to this court, the claimants contending that $75,000 should have been allowed for item (1,) and the defendants that nothing should have been allowed.

In regard to the view adopted by the court of claims, that the claimants have no right to rely on the testimony of experts introduced by them, but should have kept and produced accounts of the cost and expense of the work, we are of opinion that the claimants cannot be deprived of reasonable compensation for the work they did because the evidence they produce as to the proper amount of such compensation is not of the character referred to, when it does not appear that such evidence ever existed. If they produce the best evidence which is accessible to them, and it enables the court to arrive at a proper conclusion, that is sufficient. We think such evidence is found in the estimate made by Mr. Abbott. Taking as correct the statement made by the court of claims as to the work done by the claimants and the defendants, respectively, in constructing coffer-dams, in pumping, in excavating, and in preparing the beds for the masonry, we arrive at these results, as to the work done by the claimants: They made the coffer-dam at Davenport abutment; that at pier 1; part of that at pier 2, (it being completed by the defendants;) all but the inside dam of that at pier 4; one-third of that at the upper rest of the draw; that at the pivot pier of the draw; that at the lower rest of the draw; and that at the island abutment. They did the pumping at the Davenport abutment; at pier 1; at the pivot pier of the draw; at the lower rest of the draw; and at the island abutment. They made the excavation at the upper rest of the draw, and that at the island abutment. They prepared the bed for the masonry at the Davenport abutment; at pier 1; at the upper rest of the draw; at the pivot pier of the draw; at the lower rest of the draw; and at the island abutment.

Applying to the above work the estimates of Mr. Abbott, instead of those of Messrs. Scott and Stickney, which the court of claims adopted, we have these results, presuming that, as Mr. Abbott's estimates are not made in separate specific items for dam, pumping, excavating, and preparing bed, respectively, in any case except that of the Davenport abutment, we have proceeded on the basis of taking, (in regard to pier 2, pier 4, and the upper rest of the draw, where alone it was necessary,) as and for Mr. Abbott's separate specific items such proportion of his aggregate estimate as the corresponding specific item in the corresponding aggregate estimate of Mr. Scott bears to such last-named aggregate estimate: Davenport abutment-dam, pumping, and preparing bed,. $2,668

Pier 1-dam, pumping, and preparing bed,. 4,668

Pier 2-part of dam, (the court of claims said that it had

no means of knowing how much work the defendants did, and

it deducted nothing therefor; we follow that suggestion,

and allow the laimants for all the dam,).  4,147

Pier 4-all but the inside dam, (the court of claims said

it had no means of knowing how much work the defendants did,

and it deducted nothing therefor; we follow that suggestion,

and allow the claimants for all the dam,). 5,793

Upper rest of draw-one-third of dam, of excavation, and of

preparing bed,........................ 2,475

Pivot pier of draw-dam, pumping, and preparing bed,. 4,842

Lower rest of draw-dam, pumping, and preparing bed,. 3,698

Island abutment-dam, pumping, excavation, and preparing bed, 3,780

---

Total,............................... $32,075

Mr. Abbott says that his estimates 'are based upon cost of mat....................................erial and labor, and intended to cover cost alone;' that 40 per cent. is a 'reasonable per cent. of advance for contingencies and profits;' and that, with unusual floods in the river, 40 per cent. would be a minimum allowance. The evidence shows that the claimants met with great difficulties because of floods and high water. Mr. Van Wagenen's estimate is $36,000. We have concluded to add 25 per cent. to the $32,075.02,-that is, $8,018.75,-making in all $40,093.77.

As to item (2,) that relating to loss and damage resulting to the claimants in consequence of the reduction of the dimensions of the piers and abutments, made subsequently to the making of the contract, the claimants have appealed because nothing was allowed therefor. The court of claims held that if the claimants were entitled to recover any sum in respect of that item the sum was $3,066.42. But that court was of opinion that, in its judgment in favor of the claimants, in the suit at law, for $42,306.49, it had, in allowing $22,238.49, under item 5, as amended, 'for handling, cutting, preparing, and setting stone for and in the piers and abutments' allowed the following item: 'Stone received and handled, not set, and ready as backing to the 1,527 yards of the next preceding item,'-that is, the 1,527 yards of stone dressed, not set,-'an equal quantity, viz., 1,527 cubic yards, at $11 per yard, less $2, which it would have cost to set it, $13,743.00.' That in such allowance it had allowed a profit of $8.65 a yard on the 1,527 yards of undressed backing stone, being $13,208.55, which had been paid to the claimants; that this was an allowance to the claimants of profits on masonry not constructed by them; and that, although it could not be recovered back, its payment must operate as a bar to any further recovery for the same thing. We find, however, that in the suit at law item 3 claimed was 'for loss of profits incurred by the unlawful reduction of the dimensions of the piers and abutments, $33,600;' and that, in its conclusions of law, in the suit at law, the court of claims held that the claimants were not entitled to any recovery under item 3. Moreover, that court allowed the $13,743 referred to, as a part of item 5, as amended, (above quoted,) for doing to the stone in question everything but setting it, it being undressed stone; in other respects, prepared. We are unable to perceive how such allowance can be classed as an allowance for loss and damage from a reduction of the dimensions of the piers and abutments. We think the proper allowance for item (2) is this: 449 yards for the three piers of the draw, at $10 per yard, equal $4,490; and 10 3-5 yards for pier 1, at $8 per yard, equal $84.80; total, $4,574.80.

The only remaining question is as to interest, which the court of claims disallowed. We think that under the ruling in Tillson v. United States, 100 U.S. 43, interest cannot be allowed on either of the items in question. We do not see anything in the special statute,-act of August 14, 1876, c. 279, (19 St. 490,)-which takes the case out of the rule prescribed by section 1091 of the Revised Statutes.

The judgment of the court of claims is affirmed for the full amount of the award made to the claimants, and an additional amount of $23,842.82 is allowed for the labor done and mate ials furnished by the claimants in constructing coffer-dams, and in performing the work necessarily connected therewith and preliminary to the mason work for the piers and abutments referred to in their contract, the same being an additional allowance on account of item (1) in their petition filed August 30, 1876; and the said judgment is reversed so far as respects item (2) in that petition, and the sum of $4,574.80 is allowed for that item; and this cause is remanded to the court of claims, with a direction to enter judgment accordingly.


text: Talk:Harvey v. United States (113 U.S. 243)/Opinion of the Court


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84 during which they eat but once in the twenty-four hours, and that at two in the afternoon, twelve hours after they have begun the toil and vigil of the day. Their meals are scanty, but even of these they eat sparingly; and though each is allowed a small carafe of wine, many refrain from this indulgence. Without doubt, the most of mankind grossly overeat themselves; our meals serve not only for support, but as a hearty and natural diversion from the labour of life. Although excess may be hurtful, I should have thought this Trappist regimen defective. And I am astonished, as I look back, at the freshness of face and cheerfulness of manner of all whom I beheld. A happier nor a healthier company I should scarce suppose that I have ever seen. As a matter of fact, on this bleak upland, and with the incessant occupation of the monks, life is of an uncertain tenure, and death no infrequent visitor, at our Lady of the Snows. This, at least, was what was told me. But if they die easily, they must live healthily in the meantime, for they seemed all firm of flesh and high in colour; and the only morbid sign that


text:
Central Company of New Jersey v. Mills

This is an appeal from an order of the circuit court of the United States for the district of New Jersey, remanding to the court of chancery of the state of New Jersey a suit in equity brought by the appellees against the appellants. The case, so far as material to the understanding of the question presented by the appeal, was as follows:

The bill was filed by two citizens of New Jersey, executors of Stephen Vail, and, as such, stockholders in the Central Railroad Company of New Jersey, a New Jersey corporation, against that corporation, and the Philadelphia & Reading Railroad Company, a Pennsylvania corporation, and several individuals, citizens respectively of New Jersey, of Pennsylvania, and of Maryland, and directors in one or both of those corporations, to set aside a lease made by the New Jersey corporation of its railroad and property to the Pennsylvania corporation, and for an account of profits received under the lease.

The bill set out the charter of the New Jersey corporation, enacting that its railroad should be operated by directors elected by its stockholders, and that dividends of its net earnings should be made semi-annually among its stockholders, and alleged that the road was afterwards constructed and operated accordingly; that the corporation, although holding the legal title to all its property, held it as a trustee for the stockholders, and the real, equitable, and beneficial interest in the property, and in all dividends or income accruing or to accrue therefrom, was in the stockholders; 'and that any act or thing done, without the consent of all of said stockholders or due process of law, which destroys the powers and control of those trustees to whom the stockholders have confided their property, or which prevents those trustees from fully and freely performing said trusts, or which, in whole or in part, substitutes new or other trustees for those selected by said stockholders, or which takes from said stockholders their estate or interest in said properties or their control over them and their management, or transfers the possession and management of the property of said stockholders to another corporation or to any other person, or in anywise changes the scheme of said railroad company or the enterprise in which, and to further which, the said stockholders advanced and invested their capital, or which limits the productiveness of their property to them and diverts the earnings, or any part thereof, to other persons, natural or artificial, on any pretense whatever,-is a fraud upon said stockholders, is unlawful as changing the contract between said corporation and said stockholders against their consent, and is absolutely void by the law of the land.'

The bill further alleged that the directors of the New Jersey corporation, in accordance with votes of a majority of the stockholders, but without the consent of all the stockholders or of the plaintiffs, executed and delivered a lease of its rail oad and all its property to the Pennsylvania corporation for the term of 999 years, and the Pennsylvania corporation entered into possession under the lease; that the lease prevented those trustees from performing the trust reposed in them by the stockholders, and affected their rights and interests in the particulars above set forth, and 'was made without any authority of law, and is illegal, inequitable, and void;' that the individual defendants, under cover of that lease, and well knowing its illegality, had been and were actively engaged in furthering the aforesaid invasion of the rights of the plaintiffs as stockholders; that therefore any application by the plaintiffs to the corporation, or to the directors or stockholders, to institute this suit would have been futile, and had not been made; and that consequently the plaintiffs were entitled to bring and maintain this suit in their own name, as well for themselves as for other stockholders similarly situated. The bill prayed for a decree that the lease and the delivery of possession under it were illegal and void, and a fraud upon the rights of the plaintiffs; that the Pennsylvania corporation surrender to the New Jersey corporation the railroad and other property, and account with it for all tolls and profits received; that the New Jersey corporation take possession of the railroad and property, and use and administer it in conformity with the trusts imposed by its charter, and distribute and pay over to the plaintiffs their share of all the money to be found due upon such accounting from the Pennsylvania corporation to the New Jersey corporation; and that, upon the failure of the Pennsylvania corporation to pay back to the New Jersey corporation all moneys taken under the lease, the individual defendants pay the same to the New Jersey corporation; and for further relief.

The defendants filed a joint answer, admitting the plaintiff's ownership of stock in the New Jersey corporation, the construction and operation of the railroad by that corporation, and the execution and delivery of the lease, and of possession under it; denying the other leading allegations of the bill; averring that the charter of the New Jersey corporation was subject by law to alteration, suspension, or repeal in the discretion of the legislature; that the lease was expressly authorized by the laws of New Jersey; and that, if the bill could be maintained, all that the plaintiffs could claim was the value of their stock, and damages assessed according to any reasonable anticipation of its productiveness in the future, and such damages the defendants were willing and thereby proffered to pay.

Before the cause could be heard in the state court, all the defendants joined in a petition, under the act of March 3, 1875, c. 137, for its removal into the circuit court of the United States, for the following reasons:

'That the said suit is one instituted by the plaintiffs, who are the executors of one Stephen Vail, and, as such, holders of certain shares of stock of the Central Railroad Company of New Jersey, one of the defendants above named, to obtain a decree requiring the surrender and cancellation, as illegal, void, and a fraud upon the rights of the plaintiffs, of a certain lease of all its railroads and other property, executed by the said Central Railroad Company of New Jersey to the said Philadelphia & Reading Railroad Company, and the payment over by the said Reading Company to the said Central Company of all rents, tolls, and profits by the former, as lessee as aforesaid, and further requiring that the said Reading Company should cease and refrain from doing any act under the terms of said lease.

'That the defendants, other than the two above-mentioned railroad companies, were made parties to the said suit only by reason of their official connection with the said two companies, and are not necessary or substantial parties to the controversy, which relates solely, as already mentioned, to the validity of the lease, above referred to, of t e railroads and other property of the Central Company to the Reading Company; that the plaintiffs in the suit claim that, as stockholders in the Central Railroad Company of New Jersey, they have the right to institute said suit upon behalf of the said company, to compel the surrender, by the Philadelphia & Reading Railroad Company, of the above-mentioned lease, and an accounting for and return by the latter company to the former of all moneys received as such lessee as aforesaid; and the controversy in said suit is therefore between citizens of different states, as the plaintiffs and the Central Railroad Company are citizens of the state of New Jersey, and the Philadelphia & Reading Railroad Company is a citizen of the state of Pennsylvania.

'That the controversy in said suit is, moreover, one arising under the constitution and laws of the United States, in that the right to make said lease is rested by the defendants upon a certain statute of New Jersey, approved March 11, 1880, [c. 160,] which provides, inter alia, as follows: 'It shall be lawful for any corporation incorporated under this act, or under any of the laws of the state, at any time during the continuance of its charter, to lease its road, or any part thereof, to any other corporation or corporations of this or any other state, or to unite and consolidate as well as merge its stock, property, and franchises and road with those of any company or companies of this or any other state, or to do both; and such other company or companies are hereby authorized to take such, and to unite, consolidate, as well as merge its stock, property, franchises, and road with said company, or to do both; and after such lease or consolidation the company or companies so acquiring said stock, property, franchises, and road may use and operate such road, and their own roads, or all or any of them and transport freights and passengers over the same, and take compensation therefor, according to the provisions and restrictions contained in this act, notwithstanding any special privilege heretofore granted or hereafter to be granted to another corporation for the transportation of freights and passengers between any points on the lines of said road, or any other points within or without this state;'-which said statute, it is contended by the plaintiffs, is null and void, in that it attempts to alter and amend charters of incorporated companies without the consent of all the stockholders of said companies, and is therefore violative of the provision of the constitution of the United States that no state shall pass any law impairing the obligation of contracts.'

The case was thereupon removed into the circuit court of the United States, but was remanded by that court to the state court. 20 Fed. Rep. 449.

J. E. Gowan, for appellants.

[Argument of Counsel from pages 254-256 intentionally omitted]

Mr. Henry C. Pitney and Barker Gummere, for appellees.

Mr. Justice Gray delivered the opinion of the court. He recited the facts as stated, and continued.

title: Central Company of New Jersey v. Mills


text: Talk:Central Company of New Jersey v. Mills


text:
Central Company of New Jersey v. Mills/Opinion of the Court

The controversy in this caase is not between citizens of different states. In truth, as well as in form, the parties on one side of the controversy are citizens of New Jersey, and those on the other side of the controversy are a New Jersey corporation and other citizens of New Jersey, as well as a Pennsylvania corporation and citizens of Pennsylvania and of Maryland. The bill is filed by stockholders in the New Jersey corporation, in behalf of themselves and other stockholders similarly situated, to set aside a lease made by that corporation, acting in concert the other defendants, of i its railroad and property, in excess of its corporate powers and in fraud of the rights of the plaintiffs. All the defendants unite in defending the acts complained of, and in denying the illegality and fraud charged against them. The New Jersey corporation is in no sense a merely formal party to the suit, o a party in the same interest with the plaintiffs; but is rightly and necessarily made a defendant. Hawes v. Oakland, 104 U.S. 450, 460; Atwool v. Merryweather, L. R. 5 Eq. 464, note; Menier v. Hooper's Tel. Co. L. R. 9 Ch. App, Cas. 350; Mason v. Harris, L. R. 11 Ch. Div. 97. There is no separate controversy bet een the plaintiffs and those directors who are citizens of Pennsylvania. The bill seeks affirmative relief against the directors, as well as against the two corporations, for one and the same illegal and fraudulent act. The single matter in controversy between the plaintiffs and all the defendants is the validity of that act; and unless it is determined that the action of the New Jersey corporation was invalid as against the plaintiffs, there can be no decree against any of the other defendants. All the parties on one side of this controversy not being citizens of different states from all those upon the other side, the citizenship of the parties did not bring the case within the jurisdiction of the circuit court. Ayres v. Wiswall, 112 U.S. 187; S.C.. ante, 90.

No controversy has arisen under the constitution and laws of the United States. Neither the bill nor the answer, in terms or in effect, claims any right or involves any question under that constitution or those laws. The question whether a party claims a right under the constitution or laws of the United States is to be ascertained by the legal construction of its own allegations, and not by the effect attributed to those allegations by the adverse party. The bill, while alleging the lease made by the New York corporation to be inconsistent with its charter, illegal, and void, does not assert or imply an intention to impugn the validity of any statute of the state for repugnancy to the constitution or laws of the United States. And the counsel for the plaintiffs, at the hearing in the circuit court, as well as in this court, disclaimed the intention to do so. Should any such question arise in the progress of the cause, and be decided by the state court against a right claimed under the national constitution and laws, relief may be had by writ of error from this court. But, in the present condition of the case, the circuit court rightly held that it did not involve a controversy properly within its jurisdiction. Gold Washing Co. v. Keyes, 96 U.S. 199; Smith v. Greenhow, 109 U.S. 669; S.C.. 3 SUP. CT. REP. 421.

Judgment affirmed.


text: Talk:Central Company of New Jersey v. Mills/Opinion of the Court


text: Talk:Looney v. District of Columbia

title: Talk:Looney v. District of Columbia


text: Talk:Looney v. District of Columbia/Opinion of the Court


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Rh I could observe, an unusual brilliancy of eye, was one that served rather to increase the general impression of vivacity and strength. Those with whom I spoke were singularly sweet-tempered, with what I can only call a holy cheerfulness in air and conversation. There is a note, in the direction to visitors, telling them not to be offended at the curt speech of those who wait upon them, since it is proper to monks to speak little. The note might have been spared; to a man the hospitallers were all brimming with innocent talk, and, in my experience of the monastery, it was easier to begin than to break off a conversation. With the exception of Father Michael, who was a man of the world, they showed themselves full of kind and healthy interest in all sorts of subjects—in politics, in voyages, in my sleeping-sack—and not without a certain pleasure in the sound of their own voices. As for those who are restricted to silence, I can only wonder how they bear their solemn and cheerless isolation. And yet, apart from any view of mortification, I can see a certain policy, not only


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 348 She ate the other up too, for, she thought, "it can't hurt or help one much either way, I'll be bound."

"Well, sure enough, after a while the Queen was brought to bed. First of all, she had a girl who had a wooden spoon in her hand, and rode upon a goat; loathly and ugly she was, and the very moment she came into the world she bawled out "Mamma."

"If I'm your mamma," said the Queen, "God give me grace to mend my ways."

"Oh, don't be sorry," said the girl, who rode on the goat, "for one will soon come after me who is better looking.

So, after a while, the Queen had another girl, who was so fair and sweet, no one had ever set eyes on such a lovely child, and with her you may fancy the Queen was very well pleased. The elder twin they called "Tatterhood," because she was always so ugly and ragged, and because she had a hood which hung about her ears in tatters. The Queen could scarce bear to look at her, and the nurses tried to shut her up in a room by herself, but it was all no good; where the younger twin was, there she must also be, and no one could ever keep them apart.

Well, one Christmas eve, when they were half grown up, there rose such a frightful noise and clatter in the gallery outside the Queen's bower. So Tatterhood asked what it was that dashed and crashed so out in the passage.

"Oh!" said the Queen, "it isn't worth asking about." But Tatterhood wouldn't give over till she found out all about it; and so the Queen told her it was a pack of Trolls and witches who had come there to keep Christmas. So Tatterhood said she'd just go out and drive them away;


text:
Nashville St. Railway Company v. United States

This was a petition in the court of claims to recover compensation for carrying the United States mails between certain places in Tennessee from March 31 to June 8, 1861. The material facts, as found by that court, were as follows:

The petitioner, a corporation under the laws of Tennessee, on May 27, 1858, entered into contracts with the United States in the usual form to transport the mails both ways between Nashville and Chattanooga and between Tullahoma and McMinnville, for four years from July 1, 1858, at the yearly compensation of $32,750, payable quarterly; carried mails accordingly for the United States until June 8, 1861; from that date began carrying the mails for the confederate government, and was also largely engaged during the rebellion in transporting troops, supplies, and munitions of war, as well as mails for that government, and was regularly paid therefor, but was not paid for the claim set up in this suit. The rest of the finding of facts was in the following words:

'In 1871 a bill in equity, filed in behalf of the United States against the Nashville & Chattanooga Railway Company, was pending in the United States circuit court for the Middle district of Tennessee to enforce certain demands of the United States against said company. In pursuance of an agreement between and by consent of the parties to the suit the decree hereinafter set forth was entered in said court. The cause of action now pending in this court was not a subject of litigation in the circuit court. The company there did not set up as a set-off or cross-action any demand for mail transportation accruing before or since the war. And in the negotiations which led to the decree above mentioned the claim which forms the subject-matter of this action was not mentioned by either party. The following is the decree above described:

'Be it remembered that on the tenth day of November, 1871, this cause was heard before the judges of the circuit court of the United States for the Middle district of Tennessee, at Nashville, upon its equity side, upon the bill of complaint, exhibits, previous proceedings, and agreement of parties, in the presence of R. McPhail Smith, United States district attorney, representing the complainant, and E. H. Ewing and W. F. Cooper, solicitors of the defendant when it appeared to the court that since the last term, in and by virtue of an act of congress in that behalf, a compromise of all the matters in litigation between the parties has been entered into and fully consummated upon the following terms, stipulations, and conditions, namely: The defendant, the Nashville & Chattanooga Railway Company, for and in consideration of the return and surrender to it, by the United States, of its road as it existed the time of the said return and surrender, with all the iron, cross-ties, bridges, and other fixtures, appurtenances, and effects in anywise appertaining and belonging to the said road, and returned, surrendered, and turned over therewith, and for and in consideration of the rolling stock, depot-houses, and all other property and effects sold and delivered by the United States to the said defendant, and for which compensation is claimed by said bill, and for and in consideration of the transfer and assignment of said road, rolling stock, fixtures, appurtenances, and all other said property and effects as aforesaid by the United States to the said defendant, with all the rights of the United States therein, acquired by conquest or otherwise, and for and in consideration of the settlement, satisfaction, and discharge of all mutual claims and accounts between the parties, as they existed on the first day of June, 1871, admitted that there was due from the defendant to the United States on that day the sum of one million of dollars, and agreed to pay the same as follows: One-half of said sum, five hundred thousand dollars, to be paid ten years after the first of June, 1871, and the other half twenty years from said date, with interest upon the whole of said principal sum, until paid, at the rate of four per cent. per annum, payable semi-annually on the first day of December and June, counting from the first of June, 1871, the said principal and interest made payable at _____, and secured by the bonds of the Nashville & Chattanooga Railroad Company, and a mortgage on the company's road, property, income, and franchise.

'It was further agreed that a final decree might be entered in this cause, setting forth the terms of the compromise, and providing that, in case of default for more than ninety days in the payment of any installment of interest as the same falls due, or any part thereof, or of the principal debt at maturity as aforesaid, or any part thereof, the sum in default might be collected by an execution of the decree.

'It further appearing, by the admissions of the parties by their solicitors in open court, that this compromise has been carried out by the execution by the Nashville & Chattanooga Railroad Company of its bonds, with interest coupons attached as agreed upon, and by the further execution of a satisfactory mortgage of the road, property, income, and franchises, to secure the said bonds and coupons, according to the terms of the agreement, and the delivery thereof to, and acceptance thereof by, the United States: It is, therefore, by consent of parties, ordered, adjudged and decreed, that the compromise as aforesaid be entered and made the decree of this court, and that the rights of the parties be, and they are hereby, declared adjudged and decreed accordingly; that the said Nashville & Chattanooga Railroad Company take their road and all its appurtenances as aforesaid, and all the rolling stock, property, and effects as aforesaid, with all the rights of the United States therein, free from all claim or demand of the United States, and subject only to the debt and lien secured by the said agreement of compromise and of this decree.

'And it is further found by the court, in accordance with the terms of said agreement of compromise and settlement, that there was due from the defendant to the United States on the first day of June, 1871, for and on account of the claim set forth in the bill of complaint, after allowing all credits thereon for services rendered by the defendant, to and for the use of the complainant, for mail service, or military transportation, or on any other account, prior to the day last aforesaid, a balance amounting to the sum of one million dollars, to bear interest from said day at the rate of four per cent. per annum, payable semi-annually on the first day of June and December of each year; one-half of said principal, to-wit, the sum of five hundred thousand dollars, to be paid on the first day of June, 1881, and the remainder thereof, to-wit, the sum of five hundred thousand dollars, to be paid on the first day of June, 1891.

'It is therefore ordered, adjudged, and decreed that the defendant pay to the complainant the said sum so as aforesaid found due, with the interest thereon as the same accrues, and that the said sums of principal and interest thereon as aforesaid, and the payment thereof as hereby ordered, stand as a charge and lien upon the road and property of the defendant, hereinbefore described, and upon the road, property, income, and franchises as set forth in the mortgage which has been executed in compliance with the agreement of compromise; and that if at any time hereafter the said Nashville & Chattanooga Railroad Company make default for the period of ninety days in the payment of any of the installments of interest or of principal of said debt, or of any part thereof, after the same shall have become due and payable according to the terms and effect of said bonds and coupons, then the United States, on filing with the clerk of this court any of said coupons or bonds past due and unpaid for ninety days, shall have the right to have issued an order for the execution of this decree to the extent of such default by the sale of the railroad and other property of the defendant as hereinbefore described, subject to the continued lien of this decree, and of the said bond and mortgage representing the same debt, as to the amount thereof then remaining and not due at the time of said sale; the said sale to be made as other sales of real estate under judicial process are required by law and the practice of this court to be made, and for this purpose this cause is retained in court until otherwise ordered.

'It is further ordered that defendant pay all costs of this cause, including the cost of this decree, and in default thereof execution is hereby awarded.'

Upon the foregoing facts the court of claims concluded as matter of law and adjudged that the petition be dismissed. 19 Ct. Cl. 476. The petitioner appealed to this court.

C. F. Benjamin, for appellant.

''Sol. Gen. Phillips'', for appellee.

Mr. Justice Gray delivered the opinion of the court. He recited the facts in the foregoing language, and continued:


text: Talk:Nashville St. Railway Company v. United States


text:
Nashville St. Railway Company v. United States/Opinion of the Court

The grounds on which the appellant contends that the claim now asserted is not barred by the decree rendered in 1871 in the former suit in the circuit court, resolve themselves into these two: First, that it is found as a fact that this claim was not litigated in that suit; second, that it could not have been considered in that suit, because the facts show that the appellant aided in sustaining the rebellion, and therefore, as matter of law, payment to it of any claim against the United States was prohibited by the joint resolution of March 2, 1867, No. 46, and was not authorized until the passage of the act of March 3, 1877, c. 105, more than five years after that decree. 14 St. 571; 19 St. 344, 362. But the insurmountable difficulty is that the former decree appears upon its face to ave been rendered by consent of the parties, and could not therefore be reversed, even on appeal. Courts of chancery generally hold that from a decree by consent no appeal lies. 2 Daniell, Ch. Pr. c. 32, § 1; French v. Shotwell, 5 Johns. Ch. 555; Winchester v. Winchester, 121 Mass. 127. Although that rule has not prevailed in this court under the terms of the acts of congress regulating its appellate jurisdiction, yet a decree, which appears by the record to have been rendered by consent, is always affirmed, without considering the merits of the cause. A fortiori, neither party can deny its effect as a bar of a subsequent suit on any claim included in the decree.

The decree of 1871 states that 'in and by virtue of an act of congress in that behalf, a compromise of all the matters in litigation between the parties has been entered into and fully consummated upon the following terms, conditions, and stipulations:' That one of the considerations for the sum of $1,000,000, thereby agreed to be paid and secured by the Nashville & Chattanooga Railroad Company to the United States, was 'the settlement, satisfaction, and discharge of all the mutual claims and accounts between the parties, as they existed on the first day of June, 1871;' that by the terms of the compromise 'there was due from the defendant to the United States on the first day of June, 1871, for and on account of the claim set forth in the bill of complaint, after allowing all credits thereon for services rendered by the defendant to and for the use of the complainant, for mail service, or military transportation, or on any other account, prior to the day last aforesaid, a balance amounting to the sum of one million dollars;' and that by consent of the parties, and in accordance with the compromise, it is so decreed.

The act of congress to which the decree refers authorized the secretary of war, with the advice of the counsel for the United States in that suit, 'to compromise, adjust, and settle the same upon such terms, as to amount and time of payment, as may be just and equitable, and best calculated to protect the interests of the government.' Act of March 3, 1871, c. 109, (16 St. 473.) The terms of the compromise, as set forth in and confirmed by the decree, expressly included all credits for services rendered by the railroad company to and for the use of the United States, for mail service or on any other account, prior to June 1, 1871. The claim now asserted was for such a service, and was not the less within the terms and effect of the compromise and decree, because the law at that time prohibited its payment to the railroad company.

Judgment affirmed.


text: Talk:Nashville St. Railway Company v. United States/Opinion of the Court


text:
Coon v. Wilson

Original.

Be it known that I, Washington Wilson, of the city, county, and state of New York, have invented a new and improved collar, of which the following is a specification:

In the accompanying drawings, Fig. 1 represents a side elevation of my improved collar, and Fig. 2 a perspective view of the same. Similar letters of reference indicate corresponding parts.

This invention refers to an improved standing collar, that retains all the advantages of the old-style curved band, without the objection of springing the collar too far from the neck, so as to come in contact with the coat and soil the collar. The collar also hugs the neck-band in such a manner that the collar is prevented from overriding it, resulting in a more comfortable fit.

The invention consists of a standing collar, having sectional bands, starting from center of collar, or any other point between center and ends, and continuing with a graduated curve to and beyond the ends of the collar.

Referring to the drawing, A represents a standing collar of my improved construction, and B the short or sectional bands, which start from the center of collar, or any other point between the center and ends, and continue along the lower part of the same, with a graduated curve and increasing width, to and beyond the ends of the collar, in the same manner as in ordinary bands.

The bands, B, are made either to overlap the collar proper, or the collar is made to overlap the bands, or one part of the bands laps over the collar ends, while the remaining part is overlapped by the collar, so as to obtain smoothly covered joints at both meeting ends of collar and sectional bands.

The bead formed by the connection of collar and band may also be continued, if desired, along the lower edge of that part of the collar between the bands, and thereby a more ornamental appearance imparted to the same.

The use of the short or sectional bands produces a saving of material as compared to the old style of continuous band, and furnishes a collar that hugs the neck-band in superior manner, without springing back so as to come in contact with the collar.

Having thus described my invention, I claim as new and desire to secure by letters patent—

A collar, A, having sectional bands, B, starting from the center of the collar, or any point between the center and ends thereof, and continuing with a graduated curve to and b yond the ends of the same, substantially as described and shown, and for the purpose set forth.

Reissue.

Be it known that I, Washington Wilson, of the city, county, and state of New York, have invented a new and improved collar, of which the following is a specification:

In the accompanying drawings, Fig. 1 represents a side elevation of my improved collar, and Fig. 2 a perspective view of the same. Similar letters of reference indicate corresponding parts.

This invention refers to an improved standing collar, that retains all the advantages of the old-style curved band, without the objection of springing the collar too far from the neck, so as to come in contact with the coat and soil the collar. The collar also hugs the neck-band in such a manner that the collar is prevented from overriding it, resulting in a more comfortable fit.

The invention consists of a standing or other collar, having curved and graduated bands that extend along the lower edge of the collar, either from the center of the collar, or from any other point between center and ends, to and beyond the ends of the collar. The rear button-hole is thrown into the top or body of the collar above the band or binding of the same.

Referring to the drawings. A represents a standing or other collar of my improved construction, and B the curved and graduated bands, which extend from the center of the collar, or any other point between the center and ends and continue along the lower part of the top or body of the collar, with a graduated curve and increasing width, to and beyond the ends of the collar, the ends being curved in the same manner as in ordinary bands.

The bands, B, are made either to overlap the collar proper, or the collar is made to overlap the bands, or one part of the bands laps over the collar ends, while the remaining part is overlapped by the collar, so as to obtain smoothly covered joints at both meeting ends of collar and graduated bands.

The bead or binding formed by the connection of collar and band may also be continued, if desired, along the lower edge of that part of the collar-body between the bands, so as to connect the graduated bands, and impart thereby a more ornamental appearance to the collar.

The rear button-hole, a, is arranged in the top or body of the collar, above the bead or binding at the lower edge of the same, which position of the button-hole, in connection with the graduated bands, produces a collar that hugs the neck-band in superior manner without springing back, so as to come in contact with the coatcollar. The shorter graduated bands produce also a considerable saving of material as compared to the old style of continuous band, that extends at uniform width along the lower part of collar.

Having thus described my invention, I claim as new and desire to secure by letters patent—

(1) A collar provided with a band composed of the parts, B, B, curved and tapered, or decreasingly graduated from the ends towards the middle, as shown and described.

(2) A collar having short or sectional bands, starting from the center of the collar, or any point between the center and ends thereof, and continuing with a graduated curve to and beyond the ends of the same, substantially as and for the purpose set forth.

(3) The combination, with a collar having short bands graduated on a curve and decreas ingly towards the middle, of a band-connecting bead or binding along the lower edge, as set forth.

(4) A collar having curved and graduated bands that extend along the top or body of the collar, from the center, or any other point between the center and ends thereof, to and beyond the ends of the collar, and having the rear button-hole placed above the band or binding into the top or body of the collar, substantially as shown and described.

The following are the d awings of the reissue, those of the original patent being the same, except that the button-hole is not lettered in the original:

The answer sets up, as defenses, (1) that the reissue was obtained for the purpose of covering a style or form of collar not intended to be covered by the original patent, the original covering a short or sectional band collar only, and the reissue being intended to cover a different style of band, subsequently adopted by the plaintiff, and not having been procured for the purpose of correcting a mistake in the claim of the original; (2) that the plaintiff was not the original and first inventor of the thing patented; (3) non-infringement.

The case was heard on pleadings and proofs, and a decision rendered (18 Blatchf. C. C. 532; S.C.. 6 Fed. Rep. 611) in favor of the plaintiff, on which an interlocutory decree was entered, January 8, 1881, adjudging the reissued patent to be valid, and to have been infringed by the defendants, by the manufacture and sale of four collars: Exhibit F, Delhi; Exhibit G, Orion; Exhibit H, Zenith; and Exhibit I, Spy; and awarding an account of profits and damages, to be taken by a master, and a perpetual injunction. On the report of the master, a final decree was entered, July 28, 1881, in favor of the plaintiff, for $8,355.32, which included costs. The defendants appealed to this court.

W. F. Cogswell, for appellants.

Hamilton Wallis and Edmund Wetmore, for appellees.

[Argument of Counsel from pages 273-275 intentionally omitted]

Mr. Justice Blatnhford delivered the opinion of the court. He recited the facts as above stated, and continued:

title: Coon v. Wilson


text: Talk:Coon v. Wilson

title: Talk:Coon v. Wilson


text:
Coon v. Wilson/Opinion of the Court

The defendants' collars have bands which are continuous from end to end of the collar, and are not in two parts, nor divided by any vertical or other seam, at the center of their length or elsewhere. They have no short or sectional bands, which start from the center of the collar, or from any point between the center and the ends. The band is not shorter than the length of the collar. In the original patent, the invention is stated to be a collar having short or sectional bands; that is, the collar has not a continuous band, of one piece of cloth as long as the collar, and extending from end to end of the collar, but has its band made in two sections, and each of those sections starts or begins to run from the center of the length of the collar, or from a point between the center and the end, to and beyond the end. The bands have a graduated curve and increasing width, from their starting points, to and beyond the ends of the collar. But that is only one feature in the claim of the original patent. The other feature, the sectional bands, is made equally important in that claim, and a collar is not the collar of that claim unless it has both of those features. That claim is limited to a collar with those features, 'substantially as described and shown.'

The circuit court adopted the view that a band, composed of two sectional bands, starting from the center, and proceeding with a graduated curve and increasing width, would not make the whole band any less a continuous band with a graduated curve and increasing width towards each end; that the use of a continuous band of the latter description would not make the parts of it each side of the center any the less sectional bands; that neither would be a continuous band of uniform width, and, as compared with that, there would be a saving of material by the use of either arrangement; and that it made no difference, in the Wilson invention, whether there was a vertical seam in the center of the band or not, provided the other features of the collar existed; that if there existed, before Wilson's invention, a collar having those features, the fact that it had not such vertical seam would not distinguish it from the Wilson invention; that the real invention shown in the original specification was that claimed in the reissue; and that the reissue was, therefore, valid.

The defendants' collars have a band of continuous material from end to end of the collar, and the back button-hole in the body of the collar, but the band is not of uniform width throughout, being narrowed in the center. It has, as a whole, the same style of gra uated curve which the Wilson collar has. The defendants' collars were first made and sold after the original patent of Wilson was granted, and after the defendants had seen sectional band collars made under it. The first of the defendants' four collars was made and sold in February, 1878, and the other three in March or April or May, 1878. The reissue was applied for March 11, 1878, and Wilson testifies that his impression is that he had previously heard of the defendants' collars. It is evident that the reissue was obtained because the defendants' collar, with a continuous band, had been put on the market, and for the purpose of obtaining claims which would certainly cover such a collar. The changes made in the specification and claims show this. The specification of the reissue, in stating what the invention consists of, omits the statement that it is a collar having sectional bands, and states that it is a collar having curved and graduated bands. It also omits the statement that the bands start from the center, or from a point between the center and the ends, and states that the curved and graduated bands extend along the lower edge of the collar, from the center, or from a point between the center and the ends. The statement of the invention, in the original patent, did not cover the defendants' collars, nor did the claim of that patent. The second claim of the reissue is substantially the same as the claim of the original patent. But the first and fourth claims of the reissue, corresponding with the changes made in the description, ignore the short or sectional bands, and refer only to a curved and graduated band. The third claim preserves the short bands, curved and graduated. As the defendants' collars do not have the short or sectional bands, and so do not infringe the second and third claims of the reissue, the question arises as to the validity of the first and fourth claims, which it is alleged are infringed.

The final decree in this case was entered July 28, 1881. The decisions of this court in Miller v. Brass Co. 104 U.S. 350, and James v. Campbell, Id. 356, were made January 9, 1882. Under those decisions, and many others made by this court since, the first and fourth claims of the reissue cannot be sustained. Although this reissue was appeld for a little over three months after the original patent was granted, the case is one where it is sought merely to enlarge the claim of the original patent, by repeating that claim and adding others; where no mistake or inadvertence is shown, so far as the short or sectional bands are concerned; where the patentee waited until the defendants produced their continuous band collar, and then applied for such enlarged claims as to embrace the defendants' collar, which was not covered by the claim of the original patent; and where it is apparent, from a comparison of the two patents, that the reissue was made to enlarge the scope of the original. As the rule is expressed in the recent case of Mahn v. Harwood, 112 U.S. 354, S.C.. ante, 174, a patent 'cannot be lawfully reissued for the mere purpose of enlarging the claim, unless there has been a clear mistake, inadvertently committed, in the wording of the claim, and the application for a reissue is made within a reasonably short period after the original patent was granted.' But a clear mistake, inadvertently committed, in the wording of the claim, is necessary, without reference to the length of time. In the present case there was no mistake in the wording of the claim of the original patent. The description warranted no other claim. It did not warrant any claim covering bands not short or sectional. The description had to be changed in the reissue, to warrant the new claims in the reissue. The description in the reissue is not a more clear and satisfactory statement of what is described in the original patent, but is a description of a different thing, so ingeniously worded as to cover collars with continuous long bands and which have no short or sectional bands. The drawings show no continuous band; and the statement in the original patent that 'the use of the short or sectional bands produces a saving of material, as compared to the old style of continuous band,' shows that the patentee was drawing a sharp contrast between the only bands he contemplated-short or sectional bands and a continuous band, of one piece of material, as long as the collar. The original patent industriously excluded from its scope a continuous band. In the reissue, to cover a continuous graduated band, the two bands, B, B, are converted into a single band composed of the parts B, B, and, while that is described as extending along the top or body of the collar, the 'shorter graduated bands' are described as saving material, as compared with an old-style continuous band, of uniform width.

While we are of opinion that the views of the circuit court, as before recited, were erroneous, we presume that if this case had been decided after January, 1882, the decree would not have been for the plaintiff.

The decree of the circuit court is reversed, and the case is remanded to that court, with a direction to dismiss the bill, with costs.

title: Coon v. Wilson/Opinion of the Court


text: Talk:Coon v. Wilson/Opinion of the Court


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Page:Travels with a Donkey In The Cevennes.djvu/104

86 in the exclusion of women, but in this vow of silence. I have had some experience of lay phalansteries, of an artistic, not to say a bacchanalian, character; and seen more than one association easily formed, and yet more easily dispersed. With a Cistercian rule, perhaps they might have lasted longer. In the neighbourhood of women it is but a touch-and-go association that can be formed among defenceless men; the stronger electricity is sure to triumph; the dreams of boyhood, the schemes of youth, are abandoned after an interview of ten minutes, and the arts and sciences, and professional male jollity, deserted at once for two sweet eyes and a caressing accent. And next after this, the tongue is the great divider. I am almost ashamed to pursue this worldly criticism of a religious rule; but there is yet another point in which the Trappist order appeals to me as a model of wisdom. By two in the morning the clapper goes upon the bell, and so on, hour by hour, and sometimes quarter by quarter, till eight, the hour of rest; so infinitesimally is the day divided among different occupations. The


text:
Spaids v. Cooley

S. S. Henkle, for plaintiff in error.

''Wm. Penn Clark'', for defendant in error.

Mr. Justice Blatchford delivered the opinion of the court.

title: Spaids v. Cooley


text: Talk:Spaids v. Cooley

title: Talk:Spaids v. Cooley