text:
Williams v. Morgan/Opinion of the Court

In this case, the only question on the merits relates to the compensation which ought to be allowed to the trustees and receivers of a certain railroad mortgage for their services. A preliminary question, however, is raised as to the right of the appellants to bring the case here by appeal.

The New Orleans, Mobile & Chattanooga Railroad Company, on the first of January, 1869, executed a first mortgage on its railroad and franchises to secu e the payment of 4,000 coupon bonds of $1,000 each, with interest at 8 per cent. per annum. Oakes Ames and Edwin D. Morgan were the trustees. The former having died, James A. Raynor was appointed in his stead. A second mortgage was given in March, 1869, but was foreclosed in 1870, and the property was bought in for the second mortgage bondholders, who reorganized under the name of the New Orleans, Mobile & Texas Railroad Company, and gave another mortgage (generally called the second mortgage) to secure $2,000,000, subject to the incumbrance of the first mortgage. Default being made in payment of interest, the trustees, E. D. Morgan and James A. Raynor, in January, 1875, by virtue of a provision in the first mortgage, took possession of the property, but soon found it necessary to secure the sanction and protection of judicial proceedings. On the twelfth of March, 1875, they filed a bill for foreclosure and sale of the mortgaged property in the circuit court of the United States for the district of Louisiana, and were appointed receivers in addition to their character as trustees. The railroad covered by the mortgage was the road running along the gulf between Mobile and New Orleans, and was in a dilapidated condition, needing new bridges, new embankments, and extensive repairs, as well as rolling stock and machinery. The road and property were managed and taken care of by the trustees and receivers for over five years, during which time Raynor had special charge of the road superintending and managing everything in that department, while Morgan looked after the finances of the concern in New York. They brought the road up to an efficient condition, and made it a desirable property. There is no doubt, from the evidence, that their services were of the greatest value. Raynor gave his whole time to the road itself and its practical working, superintended the erection of bridges, the raising of the embankment on the marshes, the procurement of depot and ferry accommodations in New Orleans and Mobile, and whatever related to the actual management and superintendence of the road as an important business thoroughfare of travel and transportation. In November, 1875, the trustees applied to the court to allow a fixed compensation to Raynor for the extra service he was performing. In their petition they say:

'Your petitioners further represent that James A. Raynor has had to perform the duties of general manager of the railroad, in place of the officer of the company, and that, in the course of the year, he has been put to more than the usual labor and care in the management of the administration of the road itself, performing the functions of manager and president and directors, besides the functions of trustees. Your petitioners respectfully submit an application for a salary or allowance to him during their administration, either by the year or otherwise. No application for trustees' allowances will be made, or is designed herein, but only in respect to the salary of this officer, and for a provision for necessary expenses in order that the disbursements for operating expenses and administration shall all appear.'

This application was referred to the master, who reported that, in his opinion, 'an allowance of $10,000 per annum, with necessary expenses, not to exceed $2,500 per annum, should be made to Mr. Raynor;' and this report was confirmed by the court, subject to any exceptions that might be filed within 30 days. No exceptions were filed, and Raynor received this allowance during the period of his administration, and no question has ever been made of its propriety.

In the latter part of 1879 it was deemed advisable that the trust should be brought to a close and the property sold. About that time negotiations were set on foot for a purchase of the road in the interest of the Louisville & Nashville Railroad Company, which was then extending its business ramifications throughout a large portion of the southern states. In December, 1879, a large number (more than a majo ity) of the first mortgage bondholders executed an agreement by which they appointed George Bliss, L. A. Van Hoffman, and Oliver Ames a committee to negotiate and sell either the bonds or the railroad, and, if the latter, to get a decree for foreclosure and sale in the pending proceedings, with power to purchase in the property for the common interest; and they all agreed to deposit their bonds with the Central Trust Company of New York, subject to the disposal of the committee, either for sale, or to be used in paying the purchase money of the road. And the committee was specially authorized, in concert with the trustees and receivers, to make an arrangement with the Louisville & Nashville Railroad Company to transfer the purchase of the road (when made by the committee) to a corporation to be organized in the interest of that company, for its bonds to the amount of $5,000,000, secured by vendor's lien and first mortgage on the railroad purchased; it being, among other things, stipulated as follows: 'The trustees and receivers to be protected against all their obligations from management, bonds, contracts, complete or incomplete, or otherwise, and all the liabilities of the trustees and receivers, including all the expenses and charges of the foreclosure, reorganization, and everything incident thereto, to be paid in cash, to be furnished for the purpose, to the purchasing committee. Four million dollars of such bonds to be disposed of by the purchasing committee in exchanging bond for bond or bonds (and coupons as aforesaid) secured by the said first-mentioned mortgage; the residue of such four millions, and the other one million, of such bonds the Louisville & Nashville Railroad Company to have the right to use in providing the cash for the payment hereinbefore mentioned, and in paying the amount necessary to be paid to bondholders secured by the said first-mentioned mortgage, who shall not become parties to this agreement; the surplus, if any, to belong to the Louisville & Nashville Railroad Company.'

On the tenth of February, 1880, another agreement was entered into, called the purchasing agreement, between the bondholders of the first part, the same purchasing committee of the second part, and David Thomson and William S. Williams, of the third part, by which the authority given to the purchasing committee by the previous instrument was confirmed, including that of taking the bonds of the Louisville & Nashville Railroad Company in exchange for the first mortgage bonds of the New Orleans, Mobile & Texas Railroad Company; and Thomson & Williams, proposing to act as purchasers, engaged to obtain from the Louisville Company an agreement to give its coupon bonds for $5,000,000 to carry out the arrangement substantially as indicated in the former agreement. If such an agreement should be obtained, then the railroad, franchises, equipment, and property should be sold under a decree of foreclosure and sale in the pending cause according to law, and bid in by the committee for the purpose of carrying out the arrangement. It was also agreed that the receivers and trustees should, by the Louisville Company, or in some other satisfactory manner, be protected from all their obligations and liabilities; and it was further agreed as follows: 'That all liens that may be declared to be superior to the first mortgage bonds, and that the certificates and liabilities and lawful fees, charges, and expenses of the receivers and trustees, and the disbursements of the committee, all to be decreed by the court, unless fixed by agreement, including all the expenses and charges of the foreclosure and of the proceedings to carry out this agreement, less amounts which may be available in the receivers' hands for payment upon such certificates, shall be paid in cash at the time to be appointed by the court for taking title under the foreclosure sale, and that all amounts necessary to be paid to bondholders who shall not become parties hereto shall also be paid in cash at the same time, and the purchasers [that is, Thomson & Williams] hereby agree to provide the necessary amounts, and, for the purpose, they will be entitled to such of the said five million dollars of bonds as shall not be exchanged for bonds deposited as above provided. Said bonds to become their absolute property, charged only with the payments herein last above provided for.' It was further agreed that the purchasing committee, in making bids, should act under the direction of the purchasers, (that is, Thomson & Williams,) provided that the price should be sufficient to provide for the payment of all liens prior to the mortgage, and of all charges, expenses, and liabilities; and that they should assign their bid, or take title and convey the same to the purchasers, or make other disposition thereof as requested by the purchasers.

In pursuance of this arrangement, and by consent of Ames and Williams, trustees of the second mortgage, the final decree for foreclosure and sale was made on the fifth day of March, 1880. By the fifth clause of this decree it is declared and decreed that, besides the first mortgage bonds, 4,000 in number, and the coupons for interest thereon, there was due, (in the words of the decree,) 'for replacement and repairs, additions and ameliorations made under the authority of this court, the sum of seven hundred thousand dollars, as shown by certificates, and which sum is a charge and incumbrance upon the said mortgaged property, according to the terms of the securities issued under the order of this court, besides the costs and expenses of the suit, and of the management of the property, whereby it appears to the court that a sale of the property should be made, and the motion for the sale is therefore allowed.' By the sixth clause the trustees were directed, under the supervision of the master, to advertise and sell the mortgaged property for cash. The seventh clause was evidently inserted in view of the preliminary agreements which had been made, and among other things decreed as follows:

'Seventh. The court further orders and decrees that it shall be competent for the holders of a majority or greater number of the bonds described in the deed of trust of the plaintiffs, to form an agreement appointing a purchasing committee; or, if such an agreement has already been made by a majority of the bondholders, the committee so appointed therein may act, if the agreement empowers. * *  * A copy of this agreement shall be deposited with the master, and be open to inspection ten days before the day of sale. * *  * No more money shall be required than shall be sufficient, in the opinion of the master and trustees, to assure the payment of the charges and privileges upon the fund, as shown by this decree, and the amount to be ascertained by the master's report before mentioned; and also the charges, including those arising under the orders of the court before mentioned, defined in the first article of the deed of trust, and consisting of expenses of management, conduct of business, repairs, replacement, ameliorations, incidental charges of administration, and for compensation of service, for which there is not adequate provision for payment from the moneys on hand, and these charges the master must ascertain, and give notice of at the sale.'

By the eighth clause of the decree the master and trustees were directed to report the sale when made, with a draft of the conveyance to be made to the purchaser, or any assignee or substitute for the purchaser; and it was declared competent for the purchasing committee to assign their purchase. By the eleventh clause it was decreed that the trustees and receivers might move for their discharge at the time of the confirmation of the sale, and in the mean time might settle all their accounts in either capacity which had not been adjusted. It was further decreed that any surplus produced by the sale should be paid to the trustees of the second mortgage; and that these trustees should ad ertise and sell any property covered by the second mortgage which was not covered by the first mortgage.

Under this decree the sale was advertised to take place on the twenty-fourth day of April, 1880. A supplemental decree was made on the ninth of March, 1880, directing the master to proceed between that date and the day of sale to examine the accounts of the trustees, and ascertain what sums were due under the article of the deed of trust referred to in the decree, which provides for the payment of the expenses of management, charges for the custody of the property, compensation for service and allowance to trustees, etc. The master made a preliminary report on the accounts on the twenty-third of March, 1880, but not on the subject of allowance to the trustees, or other preferred charges. On the twenty-seventh of March, 1880, the purchasing agreement of February 10th was filed with the master; and the agreement of December 16, 1879, was also laid before him. On the twenty-ninth of March, the counsel for the trustees and receivers filed with the master a statement of the charges to be paid by the purchasers at the sale to be made on the twenty-fourth of April, in substance as follows:

Certificates issued to raise money for repairs, etc.,. $700,

To John E. Parsons, for services as counsel,. 15,

Allowance to E. D. Morgan and James A. Raynor for services and

compensation in the management of the railroad and conduct of

the business other than the services of management and

superintendence of the manager, being the particular services

incident to trustees and receivers, annually from the date of

entry on the property, $25,000; to be apportioned between

them as they shall agree.

Allowances (to which the plaintiffs assent) to the master of the

court,..................................... 5,

The costs and expenses of the suit in court.

A charge by the solicitor to be separately preferred.

On the second of April, 1880, William S. Williams and David Thomson filed objections and exceptions to this statement, stating that they did so as parties to the purchasing agreement of February 10, 1880, and as bondholders; and, as grounds of exception, state that there was no proof to sustain the charges, and that they were exorbitant and illegal. On the third of April, the counsel for the trustees and receivers moved to overrule the exceptions, as being in favor of no person having any interest. The master proceeded to take proofs on the subject of the charges, and a great deal of testimony and documentary evidence were adduced, going to show the great amount of trouble and litigation which the trustees and receivers and their counsel had to encounter in the five years and more during which they had control of the property. This examination lasted up to the day preceding the sale. On the sixth of April, Williams & Thomson withdrew their opposition to the item of $700,000 for receivers' certificates. On the eighth of April, Foster & Thomson, named in the agreement of February 10, 1880, as attorneys to represent the purchasers (Thomson & Williams) in settling the form of the decree, and in examining the title, etc., and who were to consult with the counsel for the trustees in carrying out the entire arrangement, filed an objection to the charges and allowances submitted by the trustees, except as to the receivers' certificates; and joined in the objections and exceptions of Williams & Thomson, and asked to be heard. Thereupon the counsel for the trustees moved to dismiss the exceptions, both of Williams & Thomson and Foster & Thomson, on the following grounds:

'Williams & Thomson appear as interposed persons or as brokers of the Louisville & Nashville Railroad Company to accomplish the purchase of the railroad in charge of the plaintiffs or trustees. Their contracts are with a voluntary committee of bondholders who have made a purchasing agreement. They have not purchased the railroad nor purchased the bonds, but have m de an agreement with the committee that they should purchase and sell to the railroad on a variety of conditions which may not be fulfilled. Any higher bidder may acquire the railroad. The trustees have a reserved right and obligation to purchase the road. Williams & Thomson may not appear and carry out one word of the engagement, or comply with the conditions to bind the buyer with the bondholders' committee. They have no right to contest the claims or the accounts of the plaintiffs or those of the attorneys. They must take the property as they find it and the charges on it should they purchase the property.

'(2) The Louisville & Nashville Railroad Company furnish $5,000,000 in bonds to be used for the purchase. A portion is to be used to buy the bonds of the old company; a part to pay preferential charges and claims, and to return the property, amounting to $300,000. These two persons are to have the remnant not consumed by those charges on that fund. So, to make their commissions or brokerage or compensation larger, they come to contest with trustees, attorneys, and officers of court who for five years have been at work. The title to do this is insufficient.

'(3) Foster & Thomson are attorneys, apparently, for Williams & Thomson to examine the title and arrange for the fulfillment of terms, but have no claim that Williams & Thomson have not.' not.'

It appears from the master's report, afterwards filed, that on the twentieth day of April, 1880, the solicitor for the complainants and the committee of bondholders withdrew 'the previous claims (submitted March 29, 1880) for any of the parties under the authority they conferred, all parties preferring to submit their claims anew,' etc. The withdrawal was allowed as prayed for, whereupon the said claims were presented anew, as follows, viz.:

"Amount of certificates of indebtedness,. $700,000

Amount due to John E. Parsons, professional services,. 15,000

Amount due J. A. Campbell, professional services, to

be settled,

E. D. Morgan claims for $15,000.00 annually from date of

filing bill to April 1, 1880, for services, trustee and

receiver, amounting to............. 75,780

J. A. Raynor likewise claims........ 75,780

Allowance recommended for master's services,. 5,000

Allowance recommended for master's services, for journey

to New York under decree, actual expense,. 117

Costs of the marshal in the cause,

Costs of the clerk, in the cause,

Attorney's docket fee,................. 20 00"

On the twenty-third of April, Williams & Thomson, and Williams separately, filed applications to the court for leave to be heard before the master and the court in opposition to the claim for charges and allowances; Williams stating that he held first mortgage bonds to the amount of $582,000, and represented others; and that he was a trustee under the second mortgage, and, as such, entitled to any surplus of the proceeds of sale, and interested in resisting and reducing the charges and allowances. Thomson & Williams stated that they had acquired rights under the purchasing agreements, and were also first and second mortgage bondholders, and had an interest as such to oppose the charges. The court granted both of these applications, and the parties were fully heard before the master on the twenty-third of April. The sale took place under the decree on the twenty-fourth of April, as advertised, and the property was bid off and adjudicated to the purchasing committee of the bondholders, Bliss, Van Hoffman, and Ames, under the direction of Williams & Thomson, according to the programme of the agreement, and the purchasing committee, at their request, assigned the bid to a new company organized for the purpose, called the New Orleans, Mobile & Texas Railroad Company, as reorganized, and to this company the trustees executed a deed accordingly.

On the third of May the master made his report on the subject of charges and allowances, stating fully the proceedings bef re him. Among other things he says: 'At the final hearing the only question discussed by the parties was as to the amount of the allowances to be made to the complainants for services incident to trustees and receivers; the exceptions to all of the other items of the claim for allowances seemed to have been abandoned.' And his conclusion is as follows: 'That the exceptions of the opponents as to the amounts claimed by Messrs. Morgan & Raynor for their services as trustees and receivers, at the rate of $15,000 per annum, as being excessive, should be maintained, and that an allowance be made to the said Morgan & Raynor, trustees and receivers, for their services under the deed of trust herein, at the rate of $5,000.00 per annum, from March 12, 1875, to May 8, 1880, amounting to $25,677.24, (the said amount to be settled by and between them,) as a sufflcient compensation for their services. The preferential charges, allowances, and costs to be paid in the cause are as follows:

"Am't for certificates of indebtedness,. $700,000

"  due to John E. Parsons, counsel,..  15,000

"  J. A. Campbell, counsel...........  20,000

"  E. D. Morgan and J. A. Raynor, trustees,.  25,677

"  for publishing notice of sale in New York, New Orleans,

and Mobile,........................ 1,485

"  marshal of the court,.................  26

"  clerk of the court,

"  master's expenses to New York to deposit bonds,.  117

"  master's fee for services, (left to the discretion of

the court,)

"  cost of mortgage certificates,  " This report was excepted to by the solicitor for the trustees and receivers, and, the exceptions being argued, an order was made on the seventh of May, 1880, recommitting the report, with instructions to allow Edwin D. Morgan a salary of $10,000 per annum, and James A. Raynor $15,000 per annum; and to the solicitor of the trustees $6,000 per annum; all without reference to other allowances. The remainder of the report was confirmed. In accordance with these instructions the master reported on the disputed allowances as follows:

"Am't of allowance to J. A. Raynor, trustee, from date of

entry upon the property, Feb'y 1, 1875, to May

8, 1880, 5 yrs. 3 mos. and 8 days, @ $15,000.

per annum.......................... 79,083

"Am't of allowance to E. D. Morgan, trustee, same time as

J. A. Raynor, @ $10,000.00 per annum. 52,722

"Am't of allowance to J. A. Campbell, counsel fees, from

Feb'y 1, 1875, to May 8, 1880, 5 yrs. 3 mos. and

8 days, @ $6,000.00 per annum.... 31,633 28"

This report was excepted to on the eighth of May by Williams & Thomson, as purchasers named in the contract of February 10, 1880, and by Williams personally, as holder of 582 first mortgage bonds, and as representing others holding similar bonds, and also as trustee under the second mortgage. On the seventeenth of May the exceptions were dismissed. From this order the present appeal was taken on the twenty-first of May by Williams & Thomson, and by Williams personally, in the characters named above. After the appeal had been taken and allowed, the trustees filed their general accounts, which were duly reported on and confirmed, including therein the full charges allowed by the master in his last report; and the trustees were discharged from their trust. It may be remarked at once that the proceedings in the court below, after the appeal was taken, if it was perfected in time, would not affect it if Williams & Thomson had a right to appeal, and if the order was an appealable one. These conditions existing, that branch of the case was no longer in possession of the court. There is no question that the appeal was perfected in time; the bond was approved and filed on the thirty-first of May, 1880.

As to the right of Williams & Thomson to appeal, this depends on the right to intervene and contest the allowances to the trustees; or rather on the power of the ourt to allow them to do so. And we do not well see how this power can be doubted, if they had a substantial interest at stake. From the first, they claimed to have such an interest, not only as interested under the purchasing agreement, (a copy of which they filed with the master,) but as bondholders chargeable with the payment of their part of the charges. Though a motion was made to overrule their exceptions, the master declined to pass upon it himself, and the proceedings before him were continued and progressed in (apparently by mutual consent) until the court could hear the motion. This it did on the twenty-third of April, when Williams separately and Williams & Thomson jointly, presented (as we have seen) formal applications to be allowed to be heard before the master and the court. Williams claimed the right to be heard on the ground of his being a holder of first mortgage bonds to the amount of $582,000, and of representing others; and on the further ground of being one of the trustees of the second mortgage, entitled to any surplus; and Williams & Thomson claimed the same right, as being interested under the purchasing agreement, and also as being first and second mortgage bondholders. The court very properly, as it seems to us, granted their application. Their status as bondholders and otherwise does not seem to have been denied. As bondholders, and as interested under the second mortgage, if not under the purchasing agreement, we do not well see how the court, under the circumstances, could have refused their application. The trustees themselves, who were the nominal complainants, were the parties interested to obtain large allowances for themselves, and could not be relied on to have them reduced.

From the time of the sale, on the twenty fourth of April, 1880, if not before, Williams & Thomson became interested in the amount of the charges and allowances that were paid out of the extra $1,000,000 of Louisville & Nashville Railroad Company bonds. They were then committed to the carrying out of the purchasing agreement. The bid of the purchasing committee of the bondholders was made on their account and under their direction; it was made for them under the agreement, and they were virtually the purchasers; and from that time the agreement of February 10, 1880, governed the proceedings and rights of the parties. The bid was only $4,000,000, and yet the Louisville & Nashville Company issued its $5,000,000 of bonds pursuant to the agreement, $4,000,000 of which were to go to the first mortgage bondholders, and the other $1,000,000 were retained by the purchasers under their agreement to advance sufficient cash to meet the preferred claims. This they did, and all the claims were paid, the present controversy relating to the proper allowances to the trustees and receivers only remaining open. After the sale it was the purchasers, and not the bondholders, who were interested in those allowances. It was a matter of no moment to the bondholders what allowances were made, for they were to have bond for bond in any event; it was a matter of great moment to the purchasers, for every dollar allowed to the trustees was so much less for them.

This case differs from that of Swann v. Wright's Ex'rs, 110 U.S. 590, S.C.. ante, 235, recently decided by this court. In that case, Swann had purchased the railroad, under a decree which provided that the sale should be subject to the liens already established, or which might be established on references then pending, as prior and superior to the lien of the mortgage; and the claim of Wright was one of this class, having been before the master, on reference, for nearly a year when the decree was made, and warmly contested by the bondholders. The master did not report on the claim, it is true, until after the sale was made, and the purchaser applied to oppose its confirmation, and was not allowed to do so, and the sale was afterwards confirmed expressly subject to all liens established as speci ied in the decree of sale. Swann afterwards filed a bill to set aside Wright's claim for fraud in its inception. This bill was dismissed, and the decree of dismissal was affirmed by this court, on the ground that the property was purchased expressly subject to all established claims, or claims that might be established on references then pending, which included Wright's claim as much as if it had been named. From this recital of the facts in that case it appears that the bondholders were permitted, as Williams & Thomson (also bondholders) were in the present case, to contest the claim sought to be established as prior to the mortgage. The purchaser was not allowed to contest the claim, because he had no right to do so by virtue of any stipulation made either at or before the sale; whereas, in the present case, by the preliminary agreement made between the bondholders and the proposed purchasers, (and who afterwards became such,) it was expressly stipulated that the latter were to have all that should be left of the purchasing fund agreed on, after paying $4,000,000 for the bondholders, and all preferred charges and allowances,-a stipulation which made them directly interested in the amount of such charges and allowances, and made them so by the privity of the bondholders themselves. This, as it seems to us, placed the purchasers in the present case in a very different position from that which Swann occupied in the case cited. But, if we are mistaken in this view as regards their position as purchasers, there can be no doubt that as bondholders they had a right, under the leave of the court, (which was given to them, and which could not have been properly refused,) to oppose the charges and allowances in question, and to appeal from the order by which they were allowed.

We think that the position of Williams & Thomson made them quasi parties in the case, and brought them within the reason of the former cases decided by this court, in which persons incidentally interested in some branch of a cause have been allowed to intervene for the purpose of protecting their interest, and even to come into this court, or to be brought here on appeal, when a final decision of their right or claim has been made by the court below. We refer to the cases of Blossom v. Milwaukee R. Co. 1 Wall. 655, where a purchaser at a foreclosure sale was admitted to appeal; Minnesota Co. v. St. Paul Co. 2 Wall, 634, to the same effect; Hinckley v. Gilman R. Co. 94 U.S. 467, where a receiver was allowed to appeal from a decree against him to pay a sum of money in the cause in which he was appointed receiver; Sage v. Railroad Co. 96 U.S. 712, where parties interested were allowed to appeal from an order confirming a sale; Trustees v. Greenough, 105 U.S. 527, where an appeal from an order for allowance of costs and expenses to a complainant suing on behalf of a trust fund was sustained; and Hovey v. McDonald, 109 U.S. 150, S.C.. 3 SUP. CT. REP. 136, where an appeal was allowed to be brought against a receiver from an order made in his favor. That the order was such as could be appealed from, we think, is equally apparent. It was final in its nature, and was made in a matter distinct from the general subject of litigation, a matter by itself, which affected only the parties to the particular controversy, and those whom they represented.

We are then brought to the merits of this controversy. It concerns only the allowances to the trustees; nothing else was insisted on before us. The allowance made by the court below is certainly, to say the least, a liberal one. A great deal of evidence was adduced to show that a vast amount of labor and litigation, and operations of perplexity and difficulty, were performed by the trustees while they were acting as receivers of the court. We are perfectly satisfied that their application for allowance was a very meritorious one. They really lifted the road out of the mire, and renovated it from beginning to end, mad important contracts, built expensive bridges, purchased a large amount of iron, and kept the concern on its legs until it could walk alone,-the financiering part not being the least important or difficult. But, considering that one of the trustees had a very liberal salary as manager and superintendent, and his expenses paid, we think that the allowance made by the circuit court was larger than it should have been. It is unnecessary to review the evidence; it is too voluminous. The question is one of fact and estimation, and we will content ourselves by stating the conclusions at which we have arrived.

We are of opinion—

(1) That Williams & Thomson had such an interest, and were so situated in the cause, that they had a right, by leave of the court, to except and object to the charges and allowances presented by the trustees and receivers, and that they had a right to appeal from the decree of the circuit court to this court.

(2) That the said decree was a final decree for the purposes of an appeal.

(3) That the allowance to said trustees was greater than, under the circumstances, it should have been. In our opinion the gross sum of $75,000 would have been a just and sufficient allowance to said trustees jointly for their services and compensation as trustees and receivers, exclusive of the salary paid to James A. Raynor as manager and superintendent.

(4) That the residue of the order and decree of the circuit court should be affirmed, and that each party should pay their own costs on this appeal, except the costs of printing the record, which should be equally divided between the parties.

It is therefore the judgment of this court, and so ordered, that the decree below be reversed as to the allowance made to Edwin D. Morgan and James A. Raynor as trustees and receivers as described in the record, and that the cause be remanded, with instructions to enter a decree allowing the said trustees and receivers jointly for their services and compensation as such trustees and receivers, (independently of the salary allowed and paid to the said James A. Raynor, as manager and superintendent,) the gross sum of $75,000, instead of the allowance made by the decree appealed from.

It is further ordered that the remainder of the said decree be affirmed, and that each party pay their own costs on this appeal, except the cost of printing the record, which is to be equally divided between the parties.

title: Williams v. Morgan/Opinion of the Court


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

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


text:
Hagar v. Reclamation District No. 108

W. C. Belcher, for appellant.

A. L. Rhodes, for appellee.

FIELD, J.

title: Hagar v. Reclamation District No. 108


text: Talk:Hagar v. Reclamation District No. 108


text:
Hagar v. Reclamation District No. 108/Opinion of the Court

By an act of the legislature of California, passed in 1868, a general system was established for reclaiming swamp and overflowed salt marsh and tide lands in the state, of which there is a large quantity, and thus fitting them for cultivation. It will be sufficient for the purposes of this suit to state the general features of the system without going much into detail. It provides for the formation of reclamation districts where lands of the kind stated are susceptible of one mode of reclamation; such districts to be established by the board of supervisors of the county in which the lands, or the greater part of them, are situated, upon the petition of one-half or more of the holders thereof. The petition being granted, the petitioners are required to establish such by-laws as they may deem necessary for the work of reclamation, and to keep the same in repair; and to elect three of their number to act as a board of trustees to manage the same. This board is empowered to employ engineers and others to survey, plan, and estimate the cost of the work, and of land needed for right of way, including drains, canals, sluices, watergates, embankments, and material for construction; and to construct, maintain, and keep in repair all works necessary for the object in view. The trustees are required to report to the board of supervisors of the county, or, if the district be in more than one county, to the board of supervisors in each county, the plans of the work and estimates of the cost, together with estimates of the incidental expenses of superintendence and repairs. The supervisors are then to appoint three commissioners, who are jointly to view and assess upon each acre to be reclaimed or benefited a tax proportionate to the whole expense, and to the benefits which will result from the works; which tax is to be collected and paid into the county treasury or treasuries, as the case may be, and placed to the credit of the district, to be paid out for the work of reclamation, upon the order of the trustees, when approved by the board of supervisors of the county. If the district be in more than one county, the tax is to be paid into the treasury of the county in which the land assessed is situated. If the original assessment be insufficient for the complete reclamation of the lands, or if further assessments be required for the protection, maintenance, and repair of the works, the supervisors may order additional assessments upon presentation by the trustees of a statement of the work to be done, and an estimate of its cost, such assessments to be levied, and, if delinquent, collected, in the same manner as the original assessment. The commissioners are required to make a list of the amounts due from each owner of land in the district, and of the amount assessed against the unsold land, and file the same with the treasurer of the county in which the lands are situated. The lists thus prepared are to remain in the office of the treasurer for 30 days or longer, if so ordered by the trustees, during which time any person can pay to the treasurer the amount assessed against his land; but if, at the end of the 30 days, or the extended time, the tax has not been paid, the treasurer is to transmit the list to the district attorney, who is to proceed at once against the delinquents in the manner provided by law for the collection of state and county taxes. The Political Code of the state, which went into effect on the first of January, 1873, embraces substantially the provisions of the act of 1868. The changes are more in language than in substance. So far as subsequent proceedings are concerned, the Code prescribes the rule. The reclamation district No. 108, the plaintiff in the court below, was established in September, 1870, under the act of 1868. It embraces over 74,000 acres of land, situated in the counties of Yolo and Colusa, and forming a compact body susceptible of one mode of reclamation. The trustees of the district originally estimated the cost of the reclamation works, including incidental expenses, at $140,000, and the commissioners appointed assessed that sum upon the lands in the district. The amount proved to be insufficient to complete the works, and, upon the report of the trustees that the further sum of $192,000 was required for that purpose, the supervisors ordered that amount to be assessed, and the commissioners appointed by them levied the assessment upon the lands. This assessment became delinquent, and the present suits were brought to obtain a decree that the several amounts charged upon the lands of the appellant are liens upon them, and for their sale to satisfy the charges. One of the suits is to enforce the lien on the lands in Yolo county, and the other the liens on the lands in Colusa county. On his motion they were both removed to the circuit court of the United States. That court held in each case that the several sums assessed were valid liens upon the lands of the appellant on which they were levied, and ordered that the lands be sold for the payment of the amounts, with interest and costs. From these decrees the appeals are taken.

Of the several objections to the validity of the assessment urged in the court below, and pressed here, some arise under local statutes, not involving any questions of federal law, and some under the laws and constitution of the United States. The former relate to the manner in which the reclamation district was formed, it being established by the supervisors of one county, while part of the lands are situated in another county; to the fact that the appellant derived his title to his lands under a grant from the Mexican government; and to the requirement that the amounts assessed should be collected in gold and silver coin of the United States. There being no federal question touching these matters, we follow the decision of the state tribunals as to the construction and validity of the statutes. It is not open to doubt that it is in the power of the state to require local improvements to be made which are essential to the health and prosperity of any community within its borders. To this end it may provide for the construction of canals for draining marshy and malarious districts, and of levees to prevent inundations, as well as for the opening of streets in cities and of roads in the country. The system adopted in California to reclaim swamp and overflowed lands by forming districts, where the lands are susceptible of reclamation in one mode, is not essentially different from that of other states, where lands of that description are found. The fact that the lands may be situated in more than one county cannot affect the power of the state to delegate authority for the establishment of a reclamation district to the supervisors of the county containing the greater part of the lands. Such authority may be lodged in any board or tribunal which the legislature may designate.

In some states the reclamation is made by building levees on streams whose banks are subject to overflow; in other states by ditches to carry off the surplus water. Levees or embankments are necessary to protect lands on the lower Mississippi against annual inundations. The expense of such works may be charged against parties specially benefited, and be made a lien upon their property. All that is required in such cases is that the charges shall be apportioned in some just and reasonable mode, according to the benefit received. Absolute equality in imposing them may not be reached; only an approximation to it may be attainable. If no direct and invidious discrimination in favor of certain persons to the prejudice of others be made, it is not a valid objection to the mode pursued that, to some extent, inequalities may arise. It may possibly be that in some portions of the country there are o erflowed lands of so large an extent that the expense of their reclamation should properly be borne by the state. But this is a matter purely of legislative discretion. Whenever a local improvement is authorized, it is for the legislature to prescribe the way in which the means to meet its cost shall be raised, whether by general taxation, or by laying the burden upon the district specially benefited by the expenditure. County of Mobile v. Kimball, 102 U.S. 704. The rule of equality and uniformity, prescribed in cases of taxation for state and county purposes, does not require that all property, or all persons in a county or district, shall be taxed for local purposes. Such an application of the rule would often produce the very inequality it was designed to prevent. As we said in Lousiana v. Pillsbury, 105 U.S. 295, there would often be manifest injustice in subjecting the whole property of a city, and the same may be said of the whole property of any district, to taxation for an improvement of a local character. The rule, that he who reaps the benefit should bear the burden, must in such cases be applied.

The fact that the appellant's land was derived from a grant of the Mexican government in no respect affects the question. It is the character of the land and its susceptibility of being reclaimed under one system of works, and not the source of the owner's title, which authorize the action of the state. The lands granted by Mexico were not, by the treaty under which California was acquired, exempted from the control that the state exercises over all other lands. The objection made is founded upon the title of the act of 1868 and the language of some of its provisions, from which it is inferred that the system of reclamation prescribed was intended to apply only to lands acquired by the state under the Arkansas swamp act. But the supreme court of the state has passed directly upon this objection, in a controversy between the appellant and the supervisors of Yolo county with respect to this very land, and has held it untenable. 47 Cal. 222. Besides, the objection, if originally applicable, was obviated by subsequent legislation in 1872, prior to the asessment in question.

Nor is there anything in the objection that the law requires the assessment to be collected in gold and silver coin. The original act of 1868 did not prescribe the currency in which the charges were to be paid, but before the assessment was levied it was amended so as to require payment in gold and silver coin. The acts of congress making the notes of the United States a legal tender do not apply to involuntary contributions exacted by a state, but only to debts, in the strict sense of that term; that is, to obligations for the payment of money founded on contracts, express or implied. This point was decided in Lane Co. v. Oregon, 7 Wall. 71, with reference to the first legal-tender act of 1862. Subsequent acts imparting the legal-tender quality to notes did not change the general language of that act. They make such notes a legal tender 'in payment of all debts, public and private, within the United States.' In the case mentioned a statute of Oregon requiring the payment of taxes for state and school purposes to be collected in gold and silver coin was sustained on two grounds: First, that it was the right of each state to collect its taxes in such material as it might deem expedient, either in kind, that is to say, by a certain proportion of products, or in bullion, or in coin, the court observing that the extent to which the power of taxation of the state should be exercised, the subjects upon which it should be exercised, and the mode in which it should be exercised, were all equally within the discretion of its legislature, except as restrained by its own constitution and that of the United States, and by the condition that the power could not be so used as to burden or embarrass the operations of the federal government; and, second, that he legaltender act had no reference to taxes imposed by state authority, but only to debts, in the ordinary sense of the word, arising out of simple contracts, or contracts of specialty, which include judgments and recognizances. Assessments upon property for local improvements are involuntary exactions, and in that respect stand on the same footing with ordinary taxes. They are, therefore, covered by this decision; the state could determine in what manner they should be discharged.

The objections urged to the validity of the assessment on federal grounds are substantially these: that the law under which the assessment was made and levied conflicts with the clause of the fourteenth amendment of the constitution declaring that no state shall deprive any person of life, liberty, or property without due process of law; and impairs the obligation of the contract between California and the United States, that the proceeds of the swamp and overflowed lands ceded by the Arkansas act should be expended in reclaiming them. That clause of the fourteenth amendment is found in almost identical language in the several state constitutions, and is intended as additional security against the arbitrary deprivation of life and liberty and the arbitrary spoliation of property. Neither can be taken without due process of law. What constitutes that process it may be difficult to define with precision so as to cover all cases. It is no doubt wiser, as stated by Mr. Justice MILLER in Davidson v. New Orleans, to arrive at its meaning 'by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.' 96 U.S. 104. It is sufficient to observe here that by 'due process' is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights. Hurtado v. California, 110 U.S. 516, 536; S.C.. ante, 111.

The appellant contends that this fundamental principle was violated in the assessment of his property, inasmuch as it was made without notice to him, or without his being afforded any opportunity to be heard respecting it; the law authorizing it containing no provision for such notice or hearing. His contention is that notice and opportunity to be heard are essential to render any proceeding due process of law which may lead to the deprivation of life, liberty, or property. Undoubtedly where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice and an opportunity to be heard; so, also, where title or possession of property is involved. But where the taking of property is in the enforcement of a tax, the proceeding is necessarily less formal, and whether notice to him is at all necessary may depend upon the character of the tax, and the manner in which its amount is determinable. The necessity of revenue for the support of the government does not admit of the delay attendant upon proceedings in a court of justice, and they are not required for the enforcement of taxes or assessments. As stated by Mr. Justice BRADLEY, in his concurring opinion in Davidson v. New Orleans: 'In judging what is 'due process of law' respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for ocal improvements, or some of these; and, if found to be suitable or admissible in the special case, it will be adjudged to be 'due process of law,' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not 'due process of law." The power of taxation possessed by the state may be exercised upon any subject within its jurisdiction, and to any extent not prohibited by the constitution of the United States. As said by this court: 'It may touch property in every shape, in its natural condition, in its manufactured form, and in its various transmutations. And the amount of the taxation may be determined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufactures, and in transportation. Unless restrained by provisions of the federal constitution, the power of the state, as to the mode, form, and extent of taxation, is unlimited where the subjects to which it applies are within her jurisdiction.' State Tax on Foreign-held Bonds, 15 Wall. 319.

Of the different kinds of taxes which the state may impose, there is a vast number of which, from their nature, no notice can be given to the tax-payer, nor would notice be of any possible advantage to him, such as poll-taxes, license taxes, (not dependent upon the extent of his business,) and, generally, specific taxes on things or persons or occupations. In such cases the legislature in authorizing the tax fixes its amount, and that is the end of the matter. If the tax be not paid the property of the delinquent may be sold, and he be thus deprived of his property. Yet there can be no question that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the tax-payer. No right of his is therefore invaded. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard or bushel or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind, or at a particular place, such as keeping a hotel or a restaurant, or selling liquors or cigars or clothes, he has only to pay the amount required by the law and go into the business. There is no need in such cases for notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corporations for franchises, if the parties desire the privilege they have only to pay the amount required. In such cases there is no necessity for notice or hearing. The amount of the tax would not be changed by it. But where a tax is levied on property not specifically, but according to its value, to be ascertained by assessors appointed for that purpose, upon such evidence as they may obtain, a different principle comes in. The officers in estimating the value act judicially, and in most of the states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law, to hear complaints respecting the justice of the assessments. The law, in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law.

In some states, instead of a board of revision or equalization, the assessment may be revised by proceedings in the courts and be there corrected if erroneous, or set aside if invalid; or objections to the validity or amount of the assessment may be taken when the attempt is made to enforce it. In such cases all the opportunity is given to the tax-payer to be heard respecting the assessment which can be deemed essential to render the proceedings due process of law. In Davidson v. New Orleans, this court decided this precise point. In that case an assessment levied on certain real property in New Orleans for draining the swamps of that city was resisted on the ground that the proceeding deprived the owners of their property without due process of law, but the court refused to interfere, for the reason that the owners of the property had notice of the assessment and an opportunity to contest it in the courts. After stating that much misapprehension prevailed as to the meaning of the terms 'due process of law,' and that it would be difficult to give a definition that would be at once perspicuous and satisfactory, the court, speaking by Mr. Justice MILLER, said that it would lay down the following proposition as applicable to the case: 'That whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.' 96 U.S. 97.

This decision covers the cases at bar. The assessment under consideration could, by the law of California, be enforced only by legal proceedings, and in them any defense going either to its validity or amount could be pleaded. In ordinary taxation assessments, if not altered by a board of revision or of equalization, stand good, and the tax levied may be collected by a sale of the delinquent's property; but assessments in California, for the purpose of reclaiming overflowed and swamp lands, can be enforced only by suits, and, of course, to their validity it is essential that notice be given to the tax-payer, and opportunity be afforded him to be heard respecting the assessment. In them he may set forth, by way of defense, all his grievances. Reclamation Dist. No. 108 v. Evans, 61 Cal. 104. If property taken upon an assessment, which can only be enforced in this way, be not taken by due process of law, then, as said by Mr. Justice MILLER in the New Orleans Case, these words, as used in the constitution, can have no definite meaning. The numerous decisions cited by counsel, some of which are given in the note, as to the necessity of notice and of an opportunity of being heard, are all satisfied where a hearing in court is thus allowed.

The objection that the law of California, authorizing the assessment in question, impairs the obligation of a contract created between the United States and the state by the act of congress of September 28, 1850, commonly known as the Arkansas swamp act, is founded upon a misapprehension of its provisions. 9 St. p. 519, c. 84. It is true the act granted to the state all the swamp and overflowed lands within its limits, on condition that the proceeds of the lands, 'whether from sale or by direct appropriation in kind,' should be applied, as far as necessary, in reclaiming the lands by means of levees and drains. Hence the contention of counsel is that the state is bound to carry out this condition and apply the proceeds to the reclamation, or provide for their application to that end, and that its legislation imposing an assessment upon other lands to raise the necessary funds for that purpose is in violation of this contract, and therefore void. The answer to this position is twofold. In the first place, if a contract was created by the Arkansas act, when the state accepted its benefits, it is for the United States to complain of the breach if there be any. The plaintiff is not a party to the contract, and is in no position to invoke its protection. But, in the second place, the appropriation of the proceeds rests solely in the good faith of the state. Its discretion in disposing of them is not controlled by that condition, as neither a contract nor a trust following the lands was thereby created. This was distinctly held, after elaborate consideration, in the recent case of Mills Co. v. Railroad Co. 107 U.S. 557, 566; S.C.. 2 SUP. CT. REP. 654.

There are several other objections urged upon our consideration in the elaborate brief of the appellant's counsel, but we do not deem it necessary to consider them, for they raise only questions of local law and procedure which have been considered and determined in the courts of the state, from whose conclusions we should not depart.

Decrees affirmed.

Legislation of the colonies prior to the revolution, and of the states since, giving to the tax-payer an opportunity to be heard respecting the justice of the assessment of his property before it becomes final.

In Massachusetts, an act passed in 1692, for defraying the public and necessary charges arising within each county of the province, provided that 'if any person or persons think themselves overrated in any such assessment, they shall be eased by the assessors making the same to appear, or, in default thereof, by the court of quarter sessions.' Laws Mass. Bay, 19.

In Connecticut, an act passed prior to 1750 made it the duty of the listers to hear complaints of parties complaining that they were overrated. 'But if such listers will not give just relief, then upon application made by the aggrieved party to an assistant, or justice of the peace, with two of the selectmen of the town, (notifying two or more,) of the listers to show reason, if any they have, why relief should not be granted them,) they shall consider the case, and give such relief as they shall judge just and reasonable.' Acts and Laws of His Majesty's English Colony of Connecticut, 136, 262.

In South Carolina, by an act passed in 1701, for raising money for the public use and defense of the province, provision is made that the commissioners appointed by the act shall, upon complaint or appeal from any one feeling aggrieved at the rating, examine the person complaining upon his oath, touching the value of his real and personal estate, 'and upon due examination abate or defaulk proportionably the said assessments, and the same so abated shall be certified by the ommissioners aforesaid, or any two of them, to the receiver, and such assessment so certified as aforesaid shall be deemed firme and valid, and to that end the commissioners are hereby required to meet together for the determining of such complaint and appeal accordingly.' 2 St. S.C.. 184. By other and subsequent statutes the tax-payer was allowed to 'swear off' so much as he should think himself overrated for his stocks or stores, and the assessors were required to give notice for that purpose, and were authorized to administer oaths and to allow the abatement. 3 St. S.C.. 241, 260, 476, 506.

In Maine and Massachusetts, the tax-payer may make his complaint first to the assessor, and, if he refuse to grant the relief demanded, to the county commissioners. Me. Rev. St. 1871, p. 144; Mass. Gen. St. 1860, p. 79.

In Rhode Island he may petition the supreme court or court of common pleas, and the court must hear and determine his complaint. Gen. St. 107.

In Vermont, complaints may be heard before listers, and an appeal lies from their decision to the selectmen of the town. Gen. St. 520.

In New Hampshire, the tax-payer may apply to the selectmen of the town, and, if dissatisfied with their decision, may apply, by petition, to the supreme court, in the county, at a trial term, which shall make such order thereon as justice requires. Gen. St. 123.

In Connecticut, a board of relief, to consist of five 'judicious electors,' is annually elected in each town, for hearing and determining appeals from decisions of the assessors. Gen. St. 24, 159.

In New York, complaints may be made to the board of assessors. Rev. St. (5th Ed.) 911, 912.

In New Jersey, to the commissioners of appeal, in tax cases. Rev. St. 1142, 1148.

In Pennsylvania and Delaware, to county commissioners. Pa. Purdon's Dig. p. 937, § 23; Del. Rev. St. 1852, p. 62, § 12.

The Delaware act of 1796 (2 Laws Del. p. 1255, § 14) provided that commissioners should give notice in each hundred, and, at the time and place specified, meet and 'hear and determine the complaints of any person or persons that may be aggrieved, and shall generally arrange the said valuations, so that no person or persons may be unequally or overrated, provided always that no person or persons shall be prevented from appealing to the levy court and court of appeals of his or their respective county as heretofore.'

In Virginia and Georgia, if the tax-payer and assessor cannot agree as to valuation, each can choose an arbitrator, and they an umpire, to whom the matter of disagreement is submitted for final determination. Ga. Code 1873, § 840; Va. Code 1860, p. 201.

In Maryland, North Carolina, Florida, and Alabama, the boards of county commissioners constitute tribunals for hearing and determining complaints in regard to assessments; except in Baltimore the board of control and review constitute such tribunal. Md. Code, Supp. 1861-67, p. 279, § 175; N. C. Laws 1874-75, p. 222, § 18; Thomp. Dig. Laws Fla. 97; Ala. Code 1876.

In North Carolina, under the act of 1819, three freeholders, appointed by the court of common pleas and quarter sessions, constitute a board of appeal for adjustment of assessments. 2 Laws N. C. p. 1480, § 2.

In Arkansas, Mississippi, and Kentucky the county boards of supervisors constitute boards for the equalization of assessments. Ark. Acts Assem. 1873, p. 58; Miss. Rev. Code 1871, p. 351, § 1685; Ky. Gen. St. 1873, p. 724.

In South Carolina such a board is constituted of the county commissioner, auditor, and treasurer; in Louisiana, of the county clerk, recorder, and sheriff; in Tennessee, of the assessor and two freeholders; and in Missouri, of the presiding judge of the county court, and the county surveyor and assessor. Rev. St. S.C.. 69; Voorhies, Rev. St. La. 840; 1 St. Tenn. § 581; 2 Mo. Rev. St. §§ 6719, 6720, 6726.

In West Virginia the aggrieved party may apply for relief to the county court with an appeal to the circuit court. Rev. St. 1063. In Texas he may ap ly to the county court, and its determinations are final. Paschal's Dig. p. 869. art. 5176.

Boards of equalization or review are provided for, consisting:

In Illinois, of the assessor, clerk, and supervisor. Ill. Rev. St. 1874, p. 871.

In Indiana, of the county auditor, commissioners, and appraisers. 1 Gavin & Hords, St. Ind. p. 82, §§ 54, 320.

In Michigan, Iowa, and Nevada, of the boards of supervisors. 1 Comp. Laws Mich. 366; Code Iowa, 1873, p. 140, Gen. Laws Nev. 3139.

In California, of the boards of supervisors, except where the property assessed consists of the franchise, roadway, road-bed, rails, and rolling stock of railroads operated in more than one county, in which case the state board of equalization acts as assessor, and over its decisions there is no revisory tribunal. Pol. Code Cal. §§ 3673, 3692.

In Kansas and Nebraska, of county commissioners. Kans. Comp. Laws 1879, p. 953; Neb. Gen. St. 907.

In Ohio, of the county commissioners and county auditor, except in certain cities, where the board consists of the county auditor and persons appointed by the city authorities. Rev. St. 1880, p. 731.

In Oregon, of the county judge, assessor, and clerk. Deady & Lane's Gen. Laws Or. 1874, p. 756.

In Wisconsin, the chairman of the board of supervisors, clerk, and assessors of each town, and the mayor, clerk, and assessors of each city, and the president, clerk, and assessors of each incorporated village, constitute a board of review for such town, city, or village. 1 Tay. St. 1871, p. 406, § 53.

The function of these boards of review, by whatever name called, is essentially the same.


text: Talk:Hagar v. Reclamation District No. 108/Opinion of the Court


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State of Louisiana Nelson v. Police Jury of the Parish of St. Martin

'In the above-entitled case, the law and evidence being in favor of plaintiff and against the defendant, it is ordered, adjudged, and decreed that said plaintiff, Thos. W. Nelson, have judgment against and recover from the defendant, parish of St. Martin, the sum of forty-five hundred dollars, with eight per cent. interest per annum, from October 5, 1868, and that the board of assessors or officers, whose duty it is to assess taxes, forthwith proceed to assess a parish tax, at a sufficient rate per cent. upon the assessment roll of the current year, to pay said judgment, and that the tax collector proceed forthwith to collect said tax in the same manner that parish taxes are now collected, and the amount collected to be a specific fund to pay said judgment.

'Done, read, and signed in open court, this twenty-ninth November, 1873.'

From the entry of this judgment and decree to the presentation of the application for a mandamus to be issued to the officers designated, the relator in vain endeavored to have the decree executed. He made repeated applications to them to assess and collect the tax ordered, but they refused to do so; and at the extra session of the legislature of 1877, by the act known as No. 56, passed on the tenth of April of that year, the provisions of law to which we have referred were repealed. Subsequently the officers, in excuse of their conduct, alleged a want of authority by reason of the repeal. He therefore applied to the court for a mandamus to compel them to proceed in such assessment and collection pursuant to the decree of the court, setting forth in his petition the judgment recovered, with the accompanying decree, the refusal of those officers to carry out the directions of the decree on account of the repealing act of 1877, and averring that that act, if constitutional, left him absolutely without any remedy, as the parish was without property liable to seizure in an amount sufficient to pay it; and that the act was null and void as to him, and his rights under the decree, because in conflict with the constitution of Louisiana and that of the United States prohibiting legislation impairing the obligation of contracts; and that unless aided by the writ of mandamus he would lose the rights established by his judgment. The writ was duly served, and, upon its return, the president of the police jury of the parish appeared, representing the assessing officers. The parish of St. Martin also appeared, and set up that the remedies invoked for the enforcement of the judgment were repealed; that the parish was largely involved in debt; that its tax was then 10 mills on the dollar; and that the levying of an additional tax to pay the judgment in one installment would not only exceed the rate of taxation fixed by article 209 of the new constitution of the state, but would absorb, or nearly so, its entire revenues. Upon these pleadings the district court ordered a peremptory mandamus directing the levy and collection of the tax. An appeal was then taken to the supreme court of the state, where the judgment was reversed, the court holding that the right to the mandate depended upon the question whether the judgment against the parish was founded upon a contract protected against impairment by state legislation under the federal constitution; observing that the repealing act of 1877 should be no bar to the exercise of the remedy accorded by law to the relator in force at the time that he obtained his judgment, which 'not only theoretically but practically formed part of that judgment, provided that judgment be founded on a contract;' and also that unless it was thus founded the court would be powerless to enforce its payment in the manner proposed, under the inhibition of the constitution of 1879 limiting taxation to 10 ills on the dollar of the valuation of property. As the judgment did not specify the cause of action upon which it was rendered, the court thought that it would be in furtherance of justice to give the relator an opportunity of establishing that it was upon a contract, if such were the case, and to allow the defendants to adduce such further evidence, and make such other defenses as the nature of the suit might require. 32 La. Ann. 884. The court subsequently stated that it was not its intention, by its decision, to open the judgment which had been rendered in 1873 in order that the issues involved and determined might be tried de novo, but only to allow proof of a material fact in support of the proceeding by mandamus, viz., a protected contract; that is, whether the judgment was upon a contract of that character, which was protected both by the state and federal constitutions. 33 La. Ann. 1124. When the case went back to the district court it was shown that the judgment was entered upon warrants drawn by the parish of St. Martin for the sum of $4,500 for the building of a bridge over Bayou Teche, within the corporation, such warrants being drawn in favor of the municipal authorities of the town of New Iberia, and payable to the extent of $1,000 by a special appropriation out of the tax of 1856, and to the extent of $3,500 out of any surplus funds in the hands of the treasurer, from the taxes of 1865, 1866, 1867, and 1868. The district court held the proof to be sufficient that the judgment was founded upon a contract, and again ordered a peremptorymandamus to be issued to levy and collect the tax. From this decree an appeal was also taken to the supreme court, where it was reversed on the ground that the warrants, upon which the judgment was rendered, were payable out of certain funds by specific appropriation, and on the further ground that the original judgment required an immediate assessment and collection of a tax in 1873 according to the assessment roll of that year, which could not be done in 1881. The court held that, as regards the levy of the tax, the judgment had ceased to be executory, and had passed out of existence. It therefore reversed the decree, and directed judgment rejecting the demand of the relator. The relator thereupon brought this writ of error.

''Gus. A. Breaux'', for plaintiff in error.

No appearance for defendant in error.

FIELD, J.


text: Talk:State of Louisiana Nelson v. Police Jury of the Parish of St. Martin


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State of Louisiana Nelson v. Police Jury of the Parish of St. Martin/Opinion of the Court

In the case of Louisiana against the mayor of New Orleans, we held that the right to reimbursement for damages caused by a mob or riotous assemblage of people in that city was not founded upon any contract between the corporation and the parties injured; that its liability for the damages was created by law, and could be withdrawn or limited at the pleasure of the legislature; that its creation was merely a measure of policy, and its character was not changed by the fact that the amount of damage sustained in any particular case was ascertained and established by a judgment in favor of the sufferer. So, when the question arose as to the validity of legislation changing the rate of taxation by which funds could be obtained to meet a judgment in such case, the court looked beyond the judgment to the causes upon which it was founded. As the contract clause of the constitution was intended to secure the observance of good faith in the stipulation of parties against state action, it could not be invoked when no such stipulation existed, and therefore not against legislation which interfered merely with the enforcement of claims for damages from the violence of mobs or of judgments upon such claims. 109 U.S. 285; S.C.. 3 SUP. CT. REP. 211. It was, therefore, entirely within the competency of the supreme court of Louisiana to authorize an inquiry into the cause of action on which the judgment of Nelson was rendered, when he prayed for its enforcement by proceedings which were authorized by legislation existing at its date, but subsequently repealed. Whether such repeal was eff ctual to deprive him of the process prayed, depended upon the question whether the judgment was founded upon a contract, the obligation of which the state was prohibited from impairing. By the obligation of a contract is meant the means which, at the time of its creation, the law affords for its enforcement. The usual mode by which municipal bodies obtain the funds to meet their pecuniary engagements is taxation. Accordingly, when a contract is made upon the faith that taxes will be levied, legislation repealing or modifying the taxing power of the corporation, so as to deprive the holder of the contract of all adequate and efficacious remedy, is within the constitutional inhibition.

The inquiry, however, which may be thus instituted into the nature of the original cause of action, does not, where the judgment was rendered upon a contract, authorize a re-examination of the validity of the contract, or of the propriety of the judgment. That would involve a retrial of the case. Here the inquiry disclosed the fact that the judgment of Nelson was founded upon treasury warrants issued by the parish of St. Martin in favor of the municipal authorities of New Iberia for $4,500 for the building of a bridge over a bayou within the limits of the corporation, made payable out of certain funds, the proceeds of taxes for particular years. It may be that the funds mentioned were merely such as the authorities intended to apply to the payment of the warrants, and were not designed to be any limitation upon the right of the holder to payment for the construction of the bridge if such funds did not exist. So the district court would seem to have thought, as its judgment was general that the plaintiff recover the amount obsolutely from the parish, and this judgment had become final before the application for the writ of mandamus. The absolute liability of the parish upon such warrants was therefore no longer an open question, and the inquiry whether the judgment was founded upon a contract was answered. Further testimony on the subject was irrelevant and incompetent. The supreme court, however, held that the designation of the funds out which the warrants were to be paid rendered the parish liable only if the funds were sufficient, notwithstanding the terms of the judgment. Its conclusion in this respect was wholly unauthorized, because founded upon evidence which it could not legitimately consider. The judgment being absolute, and the plaintiff therein being by law entitled at the time to a decree that the assessing and collecting officers of the parish should assess and collect a tax sufficient to pay it, and such decree having been entered, and those officers having failed in their duty, the relator was entitled to the writ prayed. The Code of Procedure of Louisiana declares that the writ may be directed to public officers to compel them to fulfill any of the duties attached to their office, or which may be legally required of them. Article 834. There can be no doubt, therefore, that under this law the writ should have been granted.

The position of the court, that the relator was not entitled to the writ because the decree accompanying the judgment contemplated a levy of the tax in 1873 according to the assessment roll of that year, is without force. He was entitled, and the party succeeding to his interest is entitled, to a writ commanding the levy and collection of a sufficient tax to pay the judgment, according to the assessment roll of the year in which the levy is made, at any time until the judgment is satisfied; the right to demand the tax not depending upon the valuation of the taxable property for any year for general purposes. Such right was not only assured by the law in force when the contract was made, but was expressly declared in the decree accompanying the judgment and forming part of it. It is difficult to conceive a plainer case for the relief prayed.

The decree must be reversed, with directions to the supreme court to affirm the judgmen of the Third district court awarding the mandamus prayed; and it is so ordered.


text: Talk:State of Louisiana Nelson v. Police Jury of the Parish of St. Martin/Opinion of the Court


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Hitz v. National Metropolitan Bank

[Syllabus from pages 722-723 intentionally omitted]

[Statement of Case from page 273 intentionally omitted]

Enoch Totten and R. D. Mussey, for appellant.

R. K. Elliott and Leigh Robinson, for appellee.

MILLER, J.

title: Hitz v. National Metropolitan Bank


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USAMGIK Ordinance 37

 * HEADQUARTERS

 * UNITED STATES ARMY FORCES IN KOREA

 * Office of the Military Governor

 * Seoul, Korea

 The Finance Control Corporation of Choesn, a member control association of the National Financial Control Association, is hereby dissolved

 The chosen Savings Bank is appointed liquidator of the Finance Control Corporation of Chosen. It will distribute the funds of the corporation to its members in the same ratio as the amounts assessed against them and will take all other steps necessary to settle the affairs of the corporation. upon the final settlement of the affairs of the corporation the Chosen Savings Bank will file a report with the Director of the Financial Bureau of the Government of Korea.

 this ordinance is effective upon its publication in the official Gazette.

 * BY DIRECTION OF THE COMMANDING GENERAL

 * UNITED STATES ARMY FORCES IN KOREA

군정법령 제37호

title: USAMGIK Ordinance 37


text: Talk:Hitz v. National Metropolitan Bank

title: Talk:Hitz v. National Metropolitan Bank