text:
Steamship Company v. United States/Opinion of the Court

These are cross-appeals from a judgment of the Court of Claims. The Pacific Mail Steamship Company asserted in that court a claim for $531,666.66, and recovered a judgment for $41,666.66. The United States desire to reverse this latter judgment. The company seeks to recover here the full sum claimed below.

The suit grows out of a contract for carrying the mail from San Francisco to certain Asiatic ports. The facts, as found by the Court of Claims, and so far as is necessary to our decision, will be stated as we proceed.

The steamship company entered, on the 16th of October, 1866, into a contract with the United States to carry a monthly mail from San Francisco to China and Japan, via the Sandwich Islands, for the sum of $500,000 per annum, for a period of ten years.

These mails were to be carried in first-class American seagoing side-wheel vessels of from 3,500 to 4,000 tons burden, to be inspected and accepted by the Postmaster-General. The company, in due time, entered upon the discharge of this duty. The steamships 'Colorado,' 'Great Republic,' 'China,' 'Japan,' 'America,' and 'Alaska' were duly inspected and were accepted by the government for that service. They had been in actual use in performing the contract for several years, when Congress by the act of June 1, 1872, c. 256, making appropriations for the service of the Post-Office Department for the next fiscal year, enacte as follows:--

'SECT. 3. . . . For steamship service between San Francisco,     Japan, and China, five hundred thousand dollars; and the      Postmaster-General is hereby authorized to contract with the      lowest bidder, within three months after the passage of this      act, after sixty days' public notice, for a term of ten      years, from and after the first day of October, eighteen      hundred and seventy-three, for the conveyance of an      additional monthly mail, on the said route, at a compensation      not to exceed the rate per voyage now paid, under the      existing contracts, and upon the same conditions and      limitations as prescribed by existing acts of Congress in      reference thereto, and the respective contracts made in      pursuance thereof; and the contractors, under the provisions      of this section, shall be required to carry the United States      mails during the existence of their contracts without      additional charge, on all the steamers they may run upon said      line, or any part of it, or any branch or extension thereof:      Provided, that all steamships hereafter accepted for said      service shall be of not less than four thousand tons register      each, and shall be built of iron, and, with their engines and      machinery, shall be wholly of American construction; and      shall be so constructed as to be readily adapted to the armed      naval service of the United States, in case of war, and,      before acceptance, the officers by whom they are inspected      shall report to the Secretary of the Navy and the      Postmaster-General whether this condition has been complied      with. . . . And the government of the United States shall     have the right, in the case of war, to take for the use of      the United States any of the steamers of said line, and, in      such case, pay a reasonable compensation therefor: Provided,      the price paid shall in no case exceed the original cost of      the vessel so taken; and the provision shall extend to and be      applicable to the steamers of the Brazilian line hereinafter      provided for.' 'SECT. 6. That if the contract for the increase of the mail     service between San Francisco and China and Japan to a      semi-monthly service shall be made with the Pacific Mail      Steamship Company, or shall be performed in said company's      ships, or the ships of its successors in interest, the moneys      payable under such contract shall be paid while the said      company, or its successors in interest, shall maintain and      run the line of steamships for the transportation of freight      and passengers, at present run between New York and San      Francisco, via the Isthmus of Panama, by the said Pacific      Mail Steamship Company, and no longer: Provided, that said      requirements shall, in all respects, apply to any party      contracting for the mail service between San Francisco and      China and Japan, as well as to the Pacific Mail Steamship      Company.'

After advertising for bids for this service, and receiving one from the Pacific Mail Company, the Postmaster-General and the company signed, Aug. 23, 1873, a contract, which is too long to be copied here in full. On the part of the company, after reciting the times of departure and places of delivery of the mails which they bound themselves to carry for the period of ten years, commencing on the first day of October, 1873, there occurs this sentence, on the construction of which the present controversy hinges: 'And the said contractors do further covenant and agree with the United States, and do bind themselves, that the steamships hereafter offered for the service shall be of not less than four thousand tons register each, and shall be built of iron, and, with their engines and machinery, shall be wholly of American construction, of the best materials and after approved models, and shall be so constructed as to be readily adapted to the armed naval service of the United States in case of war; and before acceptance, the officers by whom they are inspected shall report to the Secretary of the Navy and the Postmaster-General whether this condition has been complied with; and, further, that the said steamships, after acceptance by the Postmaster-General, and dr ing the period they may be employed in conveying the mails, shall be kept up by alterations, repairs, and additions, as the exigency may require, fully equal to the best state of steamship improvement attained; and if not so kept up and maintained, they may be rejected by the Postmaster-General of the United States, as not meeting the requirements of the act of Congress authorizing the additional monthly service, and other satisfactory steamships required in their place.' The question is whether the company was bound by this contract to carry this additional semimonthly mail in vessels of the class here described and in no others, or whether, while exercising due diligence, to have as many vessels of that kind as were necessary, in addition to those which had been accepted under the first contract, these last could be used in performing the contract. Counsel for the government maintain that, inasmuch as under this contract but one trip was made by a vessel of the class here described, the service rendered by other vessels which had been accepted by the Postmaster-General, before this contract was made, was not a service in compliance with the contract for which they are entitled to receive the $41,666.66 per trip, while the contention of the company is, that it was at liberty to use ships already accepted for this servic, being the same service which they were then performing under the former contract, except that it had now become a semi-monthly instead of a monthly mail, and that by the use of the word 'hereafter,' in the new contract, reference was had to such new vessels as it might become necessary to introduce into that service.

It will be observed that 'hereafter' occurs in the act of 1872, under which the contract was made, and in the same connection. It has no sense either in the statute or the contract, unless there is an implied reference to vessels already accepted. If we suppose that while Congress required the contract to be let, after public notice, to the lowest bidder, but at no higher rate than $500,000 per annum, it also had in mind the great probability that the company which was performing the contract for a monthly mail at that price would obtain the contract for the additional service, we can readily understand the use of the word 'hereafter' both in the statute and in the contract. It being understood that six vessels of that company had already been inspected and accepted by the Postmaster-General for that service, and were then engaged in it, the only reasonable use of the agreement that 'steamships hereafter offered' should be of the new class, is that those already accepted might be used under this contract for the same service, but that such other vessels as the service should require must be of the higher class described in the statute.

There are many reasons to believe that while Congress observed its uniform policy of letting such contracts to the lowest bidder, thus inviting competition, it felt reasonably sure that in the present case the Pacific Mail Company would get it, if let at all, as the maximum of $500,000 per annum left an alternative that no contract might be made.

One of these considerations is that the company had for some time been making semi-monthly trips on the same route in pursuit of their general business as carriers, and had carried the mail every trip, receiving for the trip, for which they had no contract, what is called the sea postages,-a phrase not explained in the record, but understood to mean the postage received by the United States for the mail matter actually carried. If the company was doing this already for such a small sum, generally less than $1,000 per round trip, it was to be supposed they could underbid any one else. Besides, it was well known that no one else was prepared to perform the service, or could afford to put in a competing line for it. That Congress contemplated the taking of the contract by this company as extremely probable is shown by the provisions of the sixth section of the act, that if the contrac was made with that company or performed in its ships the money should only be paid so long as that company should continue its line from New York to San Francisco by way of Panama. We have here not only the probability that this contract would be made by the company which already was running a line of steamers from New York to San Francisco and was doing the work form San Francisco to Asia, which was now to be doubled, but we have the one made to depend on the performance of the other, and the distinct intimation that the new service might be performed in the ships of that company. Now, though this does not necessarily mean ships then in existence, when taken in connection with the use of the word 'hereafter,' as we have suggested, it adds to the force of the implication that ships of that company which had already been accepted might still be used for a service not new, but increased in the frequency of voyages, if the contract was awarded to the company then performing the service.

The construction of this contract was referred by the Postmaster-General to the Attorney-General in the summer of 1874, the question being whether the contract had been forfeited or was liable to be declared so by reason of the fact that while the new service was to commence Oct. 1, 1873, no vessel of the higher class described in the contract had been offered.

The Solicitor-General in a very careful opinion held that while the literal terms of the contract might be held to mean that the additional service should be wholly performed in the higher class of vessels, the act of Congress under which the contract was made clearly did not require this.

He says: 'It seems to me plain that the act of 1872 did not require such additional mail service in steamships of the new class, unless such became necessary.' And while he is of opinion that the language of the contract does require this, he considers it to be an immaterial part of the agreement, and concludes that the failure to provide the new vessels when the work was as well done by those already accepted did not authorize a forfeiture of the contract.

The Attorney-General also gave an opinion, in which, while he declines to adopt all of the Solicitor-General's views, he says: 'I am of opinion that it was not an essential part of the contract that the new iron steamships should be furnished by the 1st of October, 1873, if at that time it satisfactorily appeared that they would be furnished within a reasonable time thereafter.' 14 Op. Att.-Gen. 674. It does not appear to us that there is such a discrepancy between the language of the statute and of the contract as is suggested by the Solicitor-General, and if there were, the following words found in the contract would make the statute govern the case: 'This contract shall in all its parts be subject to, and in all respects governed by, the requirements and provisions of the third and sixth sections of the act of Congress approved June 1, 1872.' These are the sections we have copied, and which the Solicitor-General construes as we do, not to require the steamships of the new class until other vessels became necessary besides those already accepted.

That such was the understanding of the parties to this contract receives strong confirmation from language found in the bid or offer of the company, which was accepted without qualification by the Postmaster-General. It is this: 'We are now building two iron propellers of about 4,500 tons register, capable of steaming twelve knots, and propose, as soon as practicable, with the limited facilities now available in America, to build two more steamers of like construction, but larger and of higher speed, all of which we shall offer for the service in question. Until they can be put into commission, and afterwards, whenever circumstances may require us to relieve them temporarily, we propose to perform the service with one of the steamships heretofore accepted for the China mail service, viz., 'America,' 'Japan,' 'China,' 'Great Republic,' 'Alaska,' and 'Colorado,' or in cae of need with the 'Constitution,' heretofore accepted as a spare steamer for said service.'

It does not appear that this was objected to, and the finding of the Court of Claims is that the proposal was accepted as made; and if there by any difficulty in construing the language of the contract, it is fair to presume that it was not intended to conflict directly with such an important part of the proposal, after it had been accepted without objection.

Two acts of the claimant are much relied on to sustain the construction of the contract now asserted by the government's counsel, and it must be confessed that they tend to show that, about the time the performance of the contract should have commenced, some of the officers of the steamship company entertained the view that all the additional service was to be performed in the new class of vessels.

The first of these is a letter written in behalf of the steamship company by S. K. Holman, vice-president, in answer to one from the Post-Office Department. This latter letter is dated Oct. 24, 1873, and is addressed to George H. Bradbury, president of the company, and requests him to put in writing, for the use of the department, the explanation which, in a recent personal interview with the Postmaster-General, he had given for failing to commence the additional service on the 1st of October, as required by law and contract.

To this Mr. Holman says:-- 'SIR,-In the matter of the contract between the     Postmaster-General and the Pacific Mail Steamship Company for      an additional semi-monthly mail service between San      Francisco, Japan, and China, said service to be performed      with American-built iron steamships of not less than 4,000      tons register, and to have been commenced on Oct. 1, 1873, we      beg to submit the following, which will explain the reason of      our failure to have placed the ships on the line as per      contract.'

He then proceeds at length to explain the difficulties encountered in the construction of the two ships 'City of Pekin' and 'City of Tokio,' which had prevented the company from placing in time any vessel of that class in the line. It must be conceded that this language and the whole tenor of the letter impliedly admit that it was the duty of the company under the contract to furnish the new class of vessels at once.

This is further confirmed by the fact that while the mails were carried twice a month from October 1 to December 31, on vessels already accepted under the old contract, the sea postage for this service, amounting to $1,510.81, was, on the 11th of February, 1874, paid to the company at its request.

But immediately thereafter the company refused to receive any more of the sea postage, though warrants therefor to the amount of $5,105.41 were tendered, and it continued to perform the additional service, and to demand the contract price for it, until Congress, by the act of March 3, 1875, c. 128, in the exercise of the power reserved in the act of June 1, 1872, repealed that act and annulled the contract.

But the question to be decided is, not how one or more of the officers of the steamship company construed the contract several months after it had been made, but what was the intention of the parties thereto, and what did Congress mean when it enacted this particular proviso. We have already said that by a just construction of its terms the contract conforms to the statute, and that the latter did not require the additional service to be performed exclusively in the new class of vessels. We have shown that, when bidding for the contract, the company guarded this point by expressly stating they should use the old vessels.

Is all this to be overcome by the language of a single officer of the company, and that not the highest, and whose authority in the company is not shown? There is no evidence that the president of the company, or its board of directors, held these views.

So the receipt of the sea postage for three months may have been by the mistaken action of some inferior officer of the company. Long before the newc ontract was to begin the company had been performing this additional service and receiving the sea postage as compensation for it, and it may have been that some officer, unaware of the new contract, had continued to ask for and receive these postages after it went into effect. We do not think these acts are sufficient to overcome the construction of the contract arising from the statute and the language of the instrument, and they certainly do not estop the company from asserting the rights which the true construction of it gives them.

The Court of Claims finds that the additional mail service was performed by twelve round trips, beginning Oct. 17, 1873, and terminating Jan. 16, 1875, and that of these voyages six were made by ships which had been accepted under the first contract, and six by vessels which had never been accepted by the Postmaster-General. We are of opinion that claimant can only recover on this contract for the service rendered by vessels which had been accepted, and that it cannot recover on the contract for mails carried in vessels which had not been accepted under the contract. As to these, the sea postages offered by the Postmaster-General must be, as it was before the making of the contract, the only compensation. There may be deductions for non-performance of duty, or other matters provided in the contract, in regard to which no finding is made by the Court of Claims, but which will be open to inquiry on the return of the case to that court.

As regards the sum allowed claimant for the voyage of the 'City of Pekin,' we think the Court of Claims was clearly right. That vessel had been examined and accepted by the Postmaster-General, as one of the new and higher class of vessels, and the mails had been delivered to her at San Francisco, on the 20th of February, 1875, and she had started on the round trip ten or twelve days before Congress passed the statute annulling the contract, and she carried the mails under that contract on the voyage out and the return voyage. We are of opinion that the repeal of the statute and the annulment of the contract were not designed to operate on that voyage, and that in that respect the judgment of the Court of Claims was right.

Its judgment in regard to the other trips will be reversed, and the case remanded to it with instructions to render a judgment in conformity to this opinion; and it is

So ordered.


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

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


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The Adriatic

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

Motion to strike from the transcript the depositions and oral testimony taken in the progress of the cause in the several courts below.

Mr. E. P. Wheeler in support of the motion.

Mr. William Allen Buther, contra.

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

title: The Adriatic


text: Talk:The Adriatic

title: Talk:The Adriatic


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The Adriatic/Opinion of the Court

Sect. 698 of the Revised Statutes provides that, upon the appeal of any cause of admiralty and maritime jurisdiction, a transcript of the record shall be transmitted to this court 'and copies of the proofs and of such entries and papers on file as may be necessary on the hearing of the appeal.' While sect. 1 of the act of Feb. 16, 1875, c. 77 (18 Stat., pt. 3, 315), limits the review by this court of the judgments and decrees on the instance side of courts of admiralty and maritime jurisdiction to the questions of law arising on the record, and to such rulings of the court below excepted to at the time, as may be presented by a bill of exceptions, and requires the court below to find the facts, no change has been made in the law prescribing what should be included in the transcript sent here on an appeal. For that reason we will not order the testimony which has been sent up in this case to be stricken out. As under our repeated decisions, the facts as found are conclusive on us, it is clear the testimony may not be 'necessary on the hearing of the appeal.' The Abbotsford, 98 U.S. 440; The Benefactor, 102 id. 214. For this reason it may with propriety by consent of counsel be omitted from the printed record. We will not, however, make any order in that behalf; but if it shall be unnecessarily printed against the wishes of either of the parties, we will, on the final determination of the case, give such directions in respect to costs as may seem proper.

The section of the Revised Statutes referred to, however, requires only copies of such of the proofs to be sent up 'as may be necessary on the hearing of the appeal.' This gives us power to prescribe by rule what shall be done in cases where the act of 1875 applies. For the guidance hereafter of parties appealing, and the officers of the courts below in such a case, we, therefore, now promulgate the following as an additional paragraph, numbered 6, to rule 8:--

'6. The record in causes of admiralty and maritime     jurisdiction, where under the requirements of law the facts      have been found in the court below, and our power to review      is limited to the determination of questions of law arising      on the record, shall be confined to the pleadings, the      findings of fact and conclusions of law thereon, the bills of      exceptions, the final judgment or decree, and such      inter-locutory orders and decrees as may be necessary to a      proper review of the case.'

title: The Adriatic/Opinion of the Court


text: Talk:The Adriatic/Opinion of the Court

title: Talk:The Adriatic/Opinion of the Court


text:
National Bank v. Kimball

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. D. K. Tenney and Mr. J. M. Flower for the appellant.

Mr. Consider H. Willett, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: National Bank v. Kimball


text: Talk:National Bank v. Kimball

title: Talk:National Bank v. Kimball


text:
National Bank v. Kimball/Opinion of the Court

This is a bill in chancery, filed by The German National Bank of Chicago, to enjoin Kimball, collector of the town of South Chicago, from enforcing payment of the taxes assessed against the holders of shares of its stock.

The general grounds on which this relief is sought are two-fold, namely: that the assessment violates the provision of the act of Congress concerning national banks, which forbids the States from taxing these shares at any higher rate than other moneyed capital within the State; and that it also violates the provision of the Constitution of Illinois concerning uniformity of taxation. From the decree dismissing the bill on demurrer, this appeal has been taken.

The bill is made up of averments which are intended to show that the valuation of the property of other persons in the same town, made by the same assessor, is less in proportion to its actual cash value than that of the complainant's shares; that the same is true in other parts of the State; that some corporations are favored in this valuation, and that certain classes of property are favored in a general way. But there is no distinct averment that the shares of this bank are valued higher for the purpose of taxation than other moneyed capital generally, though this is alleged in regard to particular instances. The allegations are pretty full that the assessments are partial, unequal, and unjust, and do not result in the uniformity of taxation which the Constitution of Illinois requires.

But we think there are two fatal objections to the bill.

The first of these is that there is no offer to pay any sum as the tax which the shares of the bank ought to pay.

We have announced more than once that it is the established rule of this court that no one can be permitted to go into a court of equity to enjoin the collection of a tax until he has shown himself entitled to the aid of the court by paying so much of the tax assessed against him as it can be plainly seen he ought to pay; that he shall not be permitted, because his tax is in excess of what is just and lawful, to screen himself from paying any tax at all until the precise amount which he ought to pay is ascertained by a court of equity; and that the owner of property liable to taxation is bound to contribute his lawful share to the current expenses of government, and cannot throw that share on others while he engages in an expensive and protracted litigation to ascertain that the amount which he is assessed is or is not a few dollars more than it ought to be. But that before he asks this exact and scrupulous justice he must first do equity by paying so much as it is clear he ought to pay, and contest and delay only the remainder. State Railroad Tax Cases, 92 U.S. 575.

The bill sttempts to evade this rule by alleging that the tax is wholly void, and, therefore, none of it ought to be paid, and that by reason of the absence of the uniformity of values, it is impossible for any person to compute or ascertain what the stockholders of the complainant bank ought to pay on the shares of the bank. In the case just cited this court said, in answer to the first objection: 'It is clear that the road-bed within each county is liable to be taxed at the same rate that other property is taxed. Why have not complainants paid this tax? It is said they resist the rule by which the value of their road-bed in each county is ascertained. But surely they should pay tax by some rule. . . . Should they pay nothing, and escape wholly, because they have been assessed too high? These questions answer themselves. Before complainants seek the aid of the court to be relieved of the excessive tax, they should pay what is due. Before they ask equitable relief, they should do that justice which is necessary to enable the court to hear them.' Id. 616.

In the same case the court said: 'It has been repeatedly decided that neither the mere illegality of the tax complained of, nor its injustice, nor irregularity, or themselves give the right to an injunction in a court of equity.' The authorities there cited support the proposition. The whole extent of the injustice complained of in this bill is the inequality of the actual assessment, and for this it is argued the whole tax of the township is void; and as the bill seeks to bring into view the inequality as regards other counties in the State, it follows that, if it be sustained, the entire tax of the State for that year must be declared void, in order that the complainant may be relieved of a few thousand dollars and entirely escape taxation for that year.

In the same case this court said: 'Perfect equality and perfect uniformity of taxation, as regards individuals and corporations, or the different classes of property subject to taxation, is a dream unrealized. It may be admitted that the system which most nearly attains this is the best. But the most complete system which can be devised must, when we consider the immense variety of subjects which it necessarily embraces, be imperfect. And when we come to its application to the property of all the citizens, and of those who are not citizens in all the localities of a large State like Illinois, the application being made by men whose judgments and opinions must vary as they are affected by all the circumstances brought to bear upon each individual, the result must inevitably partake largely of the imperfection of human nature, and of the evidence on which human judgment is founded.' p. 612.

These principles are sufficient to decide the case, and were declared by this court in a case arising in the same State and under the same Constitution and revenue laws with the one now before us.

An apparent exception to the universality of the rule is admitted in People v. Weaver, 100 U.S. 539, Pelton v. National Bank, 101 id. 143, and Cummings v. National Bank, id. 153. It is held in these cases that when the inequality of valuation is the result of a statute of the State designed to discriminate injuriously against any class of persons or any species of property, a court of equity will give appropriate relief; and also where, though the law itself is unobjectionable, the officers who are appointed to make assessments combine together and establish a rule or principle of valuation, the necessary result of which is to tax one species of property higher than others, and higher than the average rate, the court will also gie relief. But the bill before us alleges no such agreement or common action of assessors, and no general rule or discriminating rate adopted by a single assessor, but relies on the numerous instances of partial and unequal valuations which establish no rule on the subject.

So far as anything of the kind is to be inferred, it is that shares of national bank stock, including the complainant's, were assessed at only thirty-four per cent of their value, which, by the board of equalization, was raised to fifty-three per cent; and other property more, and still other less.

The case, then, made by the complainant is this: that the shares of the bank are taxed at the same per cent on their assessed value as all other property; that the valuation of these shares, on which this rate is apportioned, is only about half their actual value; that some other property is valued at less than half of its cash value, and for this reason no tax should be paid on the shares of stock of the complainant.

And if any should be paid at all, the sum which may in the end be found justly due, and which, during the four or five years of this litigation, must be paid for the support of the government by some one else, shall remain in the complainant's vaults until it is ascertained precisely to the last dollar what each share should pay.

We think the Circuit Court did not err in dismissing such a bill.

Decree affirmed.


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


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Humphrey v. Baker

MOTION to dismiss an appeal from the Circuit Court of the United States for the Eastern District of Michigan.

The facts are stated in the opinion of the court.

Mr. Theodore Romeyn in support of the motion.

Mr. John Atkinson, contra.

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

title: Humphrey v. Baker


text: Talk:Humphrey v. Baker

title: Talk:Humphrey v. Baker


text:
Humphrey v. Baker/Opinion of the Court

At the last term, on a former appeal in this case (Baker v. Humphrey, 101 U.S. 494), we decided 'that the complainant, Baker, deposit in the clerk's office for the use of the defendant, George P. Humphrey, the sum of $25, and that Humphrey thereupon convey to Baker the premises described in the bill, and that the deed contain a covenant against the grantor's own acts, and the demands of all other persons claiming under him.' A mandate was thereupon issued to the Circuit Court to enter a decree in accordance with this decision, and carry it into effect. Pursuant to this mandate a decree was entered, of which no complaint is made. The money was deposited with the clerk at or before the time of the decree, and immediately thereafter a deed in all respects appropriate in form was prepared and presented to Humphrey for execution. This he neglected to do, and he was ordered to show cause why he should not be attached for contempt on that account. In obedience to this order he appeared and for cause showed—

'1st, That before said decree was entered the Circuit Court gave him leave to file, and he did file, a bill of supplement and review to obtain reimbursement for taxes and improvements paid and made upon the premises in question.

'2d, That said bill was duly filed before said decree was entered, and the complainant, who is the defendant therein, has appeared and demurred thereto, and the same is now pending and undetermined.

'3d, That this defendant has been advised and verily believes that no process would issue against him to compel him to sign the deed in question, until the questions presented by his said bill were disposed of.'

Upon the hearing Humphrey was adjudged to be in contempt, and it was decreed that he stand committed to the Detroit House of Correction until he executed the deed, unless sooner discharged by the court.

From this order of commitment the present appeal has been taken, which the appellee now moves to dismiss.

In Stewart v. Salamon (97 U.S. 361), we decided that we would not entertain an appeal from a decree entered in exact accordance with our mandate on a former appeal, and that when such an appeal was tae n we would on application examine the decree, and if it conformed to the mandate, dismiss the case with costs. If it did not, we would remand the case with appropriate directions for the correction of the errors. The decree entered below, in the present case, followed the mandate in every particular, and was in legal effect ours. It commanded Humphrey to convey, and the proceedings in which the order now appealed from was entered were for the purpose of compelling him to do what we said must be done. Instead of carrying our decree into execution ourselves, we sent it below for that purpose. No discretion was given the Circuit Court as to requiring a conveyance. That was ordered here. The order appealed from was in furtherance of our express directions, and may with propriety be considered part of our decree. It was the appropriate way of getting the conveyance which we said must be made. If in the end it shall appear that Humphrey is entitled to the relief he asks, in what he denominates his 'bill of supplement and review,' the appropriate decree to that end will be made in that proceeding. The decree we directed is the final decree in the original suit, and the court below had nothing to do but to carry it into execution. Under the rule established in Stewart v. Salamon, therefore, the appeal is

Dismissed with costs.

title: Humphrey v. Baker/Opinion of the Court


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


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Folsom v. Dewey

APPEAL from the Supreme Court of the Territory of Utah.

The facts are stated in the opinion of the court.

Submitted by Mr. Z. Snow, Mr. E. D. Hoge, Mr. Arthur Brown, and Mr. W. N. Dusenberry for the appellant, and by Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson for the appellees.

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

title: Folsom v. Dewey


text: Talk:Folsom v. Dewey

title: Talk:Folsom v. Dewey


text:
Folsom v. Dewey/Opinion of the Court

This case cannot be distinguished in principle from Stringfellow v. Cain, 99 U.S. 610. The finding is, that the property now claimed by Folsom was sold at public sale on the 11th of March, 1860, to raise money to pay a debt owing by the deceased father of the appellees, who was the original occupant of the premises. The price was five hundred and ten dollars, which was more than the debt. The overplus was paid the mother of the appellees, who were at the time all minors living with her in a house built by the father on an adjoining part of the lot for a residence. The purchaser took possession immediately after the sale, and when the town site was patented under the town-site law, in November, 1871, Folsom, his grantee, had himself been in the actual occupancy of the property for more than ten years, and during that time had made valuable improvements. This, as we think, under the rule in Stringfellow v. Cain, makes out a case of abandonment on the part of Mrs. Lamareux and her children, and gives Folsom a right to claim title. It is true, the original sale was without the consent of Mrs. Lamareux, but it was with her knowledge. She afterwards took a part of the purchase-money, and suffered Folsom to occupy and improve the property as his own for more than ten years without objection, so far as the findings show. Under these circumstances neither she nor her children can claim that Folsom was in as a trespasser when the title to the town site was secured from the United States for the 'use and benefit of the occupants thereof, according to their respective interests.' Folsom was not an intruder on their occupancy, but was himself a lawful occupant.

The evidence satisfies us that the value of the property in dispute is more than $1,000; we, therefore, have jurisdiction.

The judgment against Folsom, who is the only appellant, will be reversed, and the cause remanded with instructions to enter or cause to be entered a judgment in his favor for the premises claimed by him; and it is

So ordered.

title: Folsom v. Dewey/Opinion of the Court


text: Talk:Folsom v. Dewey/Opinion of the Court


text:
Grinnell v. Railroad Company

ERROR to the SupremeCo urt of the State of Iowa.

The facts are stated in the opinion of the court.

Mr. Saul S. Henkle and Mr. Johe S. Hauke for the plaintiffs in error.

Mr. Thomas S. Withrow for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Grinnell v. Railroad Company


text: Talk:Grinnell v. Railroad Company

title: Talk:Grinnell v. Railroad Company


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

Actions in the nature of ejectment were brought by the Chieago, Rock Island, and Pacific Railroad Company against numerous persons in different courts of the State of Iowa, and heard and decided together by stipulation on appeals to the Supreme Court, where the judgments of the lower courts in favor of the plaintiff were affirmed. The defendants sued out this writ of error.

The plaintiff asserted title under the act of Congress of May 15, 1856, c. 28 (11 Stat. 9), granting lands to the State of Iowa for railroad purposes; and the counsel of the plaintiffs in error correctly states in his brief that the only question presented by the record is, whether the railroad company has under that grant acquired title to any lands within the old fifteen-mile limit of the Mississippi and Missouri Railroad Company, certified to the State under the grant by the Department of the Interior for the benefit of that company, but which were left outside of the new twenty-mile limit by a change of location of the old line, made by the present company under the act of Congress of June 2, 1864, c. 103 (13 id. 95), amendatory of that act.

The material facts on which the decision of this question depends may be thus succinctly stated: By the first act, Congress made a grant to the State of Iowa for the purpose of aiding in the construction of four railroads across the State from points on the Mississippi River to points on the Missouri River. One of these was a road from Davenport to Council Bluffs. The grant was of every alternate section of land designated by odd numbers, for six sections in width, on each side of said roads; and in case it should appear that the United States had, when the lines or routes of said roads were definitely fixed, sold any sections or parts of sections granted as aforesaid, or the right of pre-emption had attached to the same, then the State by its agent or agents might select other odd sections in lieu of those thus deficient, within a limit of fifteen miles on each side of said roads.

The State of Iowa, by an act of its legislature approved July 14, 1856, granted to the Mississippi and Missouri Railroad Company the lands which were by the act of Congress appropriated to the construction of the road from Davenport to Council Bluffs. That company accepted the grant, and on the eleventh day of September, 1856, filed in the General Land-Office at Washington a map showing the route which it had adopted for its road, some unimportant corrections of which were made by another map filed April 1, 1857.

On the 4th of September, 1858, the agent of the company and the State reported to the General Land-Office the selection of lands in lieu of those which had been sold or to which the right of pre-emption had attached, and on the 27th of December, 1858, the lands thus selected, and those which were in place, were certified to the State by the Commissioner of the General Land-Office. These lands in place and those selected and certified to the State under the act of 1856 include all the lands in controversy in this suit.

By the act of June 2, 1864, Congress authorized a change of location of the uncompleted part of this road, so as to secure a better and more expeditious line for connection with the Iowa branch of the Union Pacific Railroad; and the plaintiff below, which had succeeded to all the rights of the Mississippi and Missouri Railroad Company, availed itself of the privilege thus conferred, and so changed the route as to place it at some points south of the fifteen-mile limits of the grant, as ascertained by the first location, and the road was completed on this route to Council Bluffs in 1869. After all this, the plaintiffs in error settled upon the lands in controversy, which were within the limits of the locatio made in 1856, and without the twenty-mile limits of the amendatory act of 1864, which will be presently noticed, and proceeded by the appropriate steps to assert rights under the homestead and pre-emption laws of the United States. The Land Department refused to recognize their right to the lands, but being in possession, and sued therefor by the railroad company, they say that the company has no title, because it lost whatever right it had to the lands by the change of the location, and because locating the road as now completed does not bring these lands within the limit of either the original or the amendatory act.

Two inquiries are thus suggested, namely: Had the railroad company acquired a title or a vested right to the lands in controversy prior to the act of 1864, and to the change of location? and, if it had, what was the effect of that change on its right to the lands left by the change outside of the limits prescribed by both acts?

The grant under the act of 1856 was, as has been often said, a grant in preesenti, and though exactly what this means has been the bubject of much controversy, we think its ascertainment is not difficult. The only doubtful element of the problem is the location of the road, which, by the terms of these grants, is necessary to identify the sections granted on each side of it. Whenever that is done so that a surveyor or the officers of the Land Department can protract the line of the route on the maps of the public lands within the limit of the grants, the identity of the lands granted is mathematically ascertained, and the title relates back to the date of the grant.

So far as lands are found in place when this is done, not coming within the exceptions as sold or held under pre-emption, the title, or at least the right to this land in place, is at once vested in the State or in the company to which the State has granted it, and the means of ascertaining precisely what lands have passed by the grant is to be found in the map of the line of the road, which is filed in the General Land-Office under provisions of the statute. As regards the lands to be selected in lieu of those lost by sale or otherwise, it may be that no valid right accrues to any particular section or part of a section until the selection is made and reported to the land-office, and possibly not then until the selection is approved by the proper officer.

None of these difficulties arise in the present case. The location was made and the map filed in the land-office, the selection of lieu lands was made and approved, and the entire list regularly certified to the State of Iowa, as early as December, 1858, and with this certificate the last act of the United States which could in any event be held necessary to passing the title was performed, and either the State of Iowa or the railroad company-it is immaterial which for the purposes of this suit -had become invested with the full legal title to the lands so certified.

In this condition of affairs the Mississippi and Missouri Railroad Company executed, to obtain money to build its road, a mortgage of its road and franchises, which also included the lands granted by Congress to the State and by the State to that company. The road commenced at Davenport, on the Missouri, and was constructed westwardly one hundred and thirty miles when the act of 1864 was passed. In 1866 the mortgage was foreclosed, and the Chicago, Rock Island, and Pacific Railroad Company, under sale at the foreclosure proceeding, and by subsequent consolidation, became the owner of the road, the franchises, and the lands of the former company.

The entire legal title, therefore, to their land had passed, for valuable consideration, to this company.

Did their construction of the road on the new line annul or defeat, without further action on the part of the United States, the title thus vested? It would have been competent for Congress to have made it a condition of the change of location, that the lands within the six-mile or the fifteen-mile limit of the old line, and not within the twenty-mile limit of the new line, should revert to the United States, so far as the title of the company was concerned. But it did not make any such condition. If no law had been passed authorizing the change of route, it is possible the government might have reclaimed these lands as forfeited by reason of the change, to which it had not consented. But Congress did consent to the change without any declaration affecting the title already vested in the company.

The second section of the act of 1864 provided for a grant of land on each side of the new location, and for lieu lands when those could not be found to an amount equal to that granted by the original act of 1856, and it extended the limit for selecting lieu lands to twenty instead of fifteen miles.

It is argued that the lands thus granted were intended as a substitute for those accruing to the company under the first location and that the latter necessarily reverted to the grantor; that it was the policy of the government that the lands granted should be alongside of the road, and that those retained by the government should thereby be enhanced in value. We are not prepared to deny that if the railroad company had accepted or received lands under the act of 1864, and the case was unembarrassed by the rights of subsequent purchasers or mortgagees, the United States could, by a judicial proceeding, enforce the principle that an exchange of lands was intended.

But this would arise from no express language of the act of Congress, or agreement with the company, but as a just and proper inference from the whole transaction.

There is, however, no evidence that the company ever received any land under the act of 1864, or asserted a claim thereto. It appears affirmatively that it never filed in the General Land-Office a map of its new route until 1870, a year after the road was completed; and it is fair to presume that if it intended to assert a claim to land under the changed location, it would have filed its map when the change was made or determined on. We do not think the act can be construed to forfeit the lands to which they had title when they claimed none under the act of 1864.

Another point equally fatal to the plaintiffs in error is, that the assertion of a right by the United States to the lands in controversy was wholly a matter between the government and the railroad company, or its grantors. The legal title remains where it was placed before the act of 1864. If the government desires to be reinvested with it, it must be done by some judicial proceeding, or by some act of the government asserting its right. It does not lie in the mouth of every one who chooses to settle on these lands to set up a title which the government itself can only assert by some direct proceeding.

These plaintiffs had no right to stir up a litigation which the parties interested did not desire to be started. It might be otherwise if the legal title was in the government. Then the land would be subject to homestead or pre-emption rights. But the legal title is not in the government; and as we have already shown, the equity is more than doubtful. Schulenberg v. Harriman, 21 Wall. 44; Tucker v. Ferguson, 22 id. 527.

Judgment affirmed.

MR. JUSTICE BRADLEY dissented.


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


text:
County of Jasper v. Ballou

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

The facts are stated in the opinion of the court.

Mr. John M. Palmer for the plaintiff in error.

Mr. D. T. Littler, contra.

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

title: County of Jasper v. Ballou


text: Talk:County of Jasper v. Ballou

title: Talk:County of Jasper v. Ballou


text:
County of Jasper v. Ballou/Opinion of the Court

The Constitution of Illinois, which went into effect April 1, 1848, contained the following:-- 'ART. VII., SECT. 6. The General Assembly shall provide by a     general law, for township organization, under which any      county may organize whenever a majority of the voters of such      county, at any general election, shall so determine, and      whenever anyco unty shall adopt a township organization, so      much of this constitution as provides for the management of      the fiscal concerns of the said county by the county court      may be dispensed with, and the affairs of the said county may      be transacted in such manner as the General Assembly may      provide.'

Accordingly, in February, 1849, a law was passed authorizing the township organization of counties, and directing that, when such an organization was adopted, the affairs of the county should be conducted by a board of supervisors. Counties not under township organization were managed by county courts.

The Grayville and Mattoon Railroad Company was incorporated Feb. 6, 1857, and on the 1st of March, 1867, its charter was amended so as to allow counties to subscribe to the stock and issue bonds in payment, if a majority of the voters of the county, at an election called by the county court, should vote in favor of such a subscription. The county of Jasper, through which the road of the company ran, was under township organization, and its board of supervisors called upon the voters of the county to vote at an election to be held on the 7th of April, 1868, whether a subscription of $100,000 should be made to the stock of the company by the county, payable in bonds of the county, to be issued as the work progressed, one-sixth of which were to fall due annually from the time they were put out. The election was held, and resulted in a majority in favor of the subscription. At a meeting of the board of supervisors, Jan. 23, 1863, the chairman was authorized to subscribe the stock as soon as it might legally be done. An act of the General Assembly of the State, approved March 27, 1869 (Acts of 1869, vol. iii. p. 360), relating to this company, and to votes which had been taken for subscriptions to its stock, contained the following as sect. 3:--

'That all elections held for the purpose of voting said     stock, and the manner in which said stock was voted, are      hereby legalized in all respects, and the stock to be      subscribed in the manner the same was voted.' On the authority of these several acts and this election the board of supervisors issued one hundred bonds of $1,000 each, in the following form:--

'Know all men by these presents, that the county of Jasper,     State of Illinois, acknowledges itself to be indebted in the      sum of one thousand dollars lawful money of the United States      of America, which said sum of money the said county promises      to pay the Grayville and Mattoon Railroad Company or bearer,      at the office of the county treasurer of said county, on the      first day of ___ in the year of our Lord one thousand eight      hundred and ___ with interest at the rate of ten per centum      per annum, which interest shall be payable on the first day      of each year, at the office of the treasurer of said county,      on the presentation and delivery of the coupons severally      hereto annexed.

'This bond is issued under and by virtue of a law of the     State of Illinois, entitled an act to incorporate the      Grayville and Mattoon Railroad Company, passed February 6,      1857, and amendatory acts thereto in force March 1st, 1867,      and March 27, 1869, in compliance with a vote of the electors      of said county at an election held April 7, 1868, in      accordance with said acts.

'This bond is one of a series limited to one hundred thousand     dollars, one-sixth of the amount made payable annually, at      ten per centum per annum, issued for stock in the Grayville      and Mattoon Railroad Company by the county of Jasper, and      placed in trust for delivery only by the trustee herein      named, to wit, ___ of the county of Jasper, which shall not      become obligatory unless the certificate indorsed hereon be      signed by said trustee.

'The faith of the county of Jasper is hereby pledged for the     payment of the principal sum and interest aforesaid.

'In testimony whereof, the county of Jasper by its chairman     of the board of supervisors of said county and the clerk of      the county court as ex-officio clerk of said board of      supervisors have subscribed this bon t his ___ day of _____      A.D. 187 _.

'County Clerk.

'Chairman of the Board of Supervisors.

'I hereby certify that this bond is one of a series of bonds     held by me as trustee of the county of Jasper to be delivered      to the Grayville and Matton Railroad Company as per order of      the board as stated therein.

'Trustee.' The bonds fell due, some in 1877 and others in each year thereafter, until and including the year 1883. It nowhere appears when the bonds were put in the hands of the trustee, but none of them bore date prior to Oct. 19, 1876.

At all the times when these several things were done there was in the county of Jasper a county court as well as a board of supervisors.

On the 14th of April, 1875, the General Assembly passed an act, the material part of which is as follows:--

'SECT. 1. That in all cases where any county, city, town,     township, school district, or other municipal corporation      have issued bonds or other evidences of indebtedness for      money on account of any subscription to the capital stock of      any railroad company, or on account of or in aid of any      public buildings or other public improvement, or for any      other purposes which are now binding or subsisting legal      obligations against any county, city, town, township, school      district, or other municipal corporations, and remain      outstanding and which are properly authorized by law, the      proper authorities of any such county, city, town, township,      school district, or other municipal corporation may upon the      surrender of any such bonds or other evidences of      indebtedness, or any number thereof, issue in place or in      lieu thereof to the holders or owners of the same new bonds,      &c. . . . And such new bonds or other evidences of     indebtedness so issued shall show on their face that they are      issued under this act: Provided, that the issue of such new      bonds in lieu of such indebtedness shall first be authorized      by a vote of a majority of the legal voters of such county,      city, town, township, school district, or other municipal      corporation, voting either at some annual or special election      of such municipal corporation: And provided further, that      such bonds or other evidences of indebtedness shall not be      issued so as to increase the aggregate indebtedness of such      municipal corporation beyond five per centum on the value of      the taxable property therein, to be ascertained by the last      assessment for State and county taxes prior to the issuing of      such bonds or other evidences of indebtedness.' Acts of 1875,      p. 68.

Under the authority of this act the board of supervisors called an election of the voters of the county, to be held on the third day of April, 1877, for the purpose of voting for or against funding the 'bonds issued to the Grayville and Mattoon Railroad Company for the sum of $100,000, drawing ten per cent interest; said hundred bonds to be due in twenty years, and payable at the option of the county in ten years; said bonds to draw interest not to exceed seven per cent per annum, said interest to be payable semi-annually at the treasurer's office in Jasper County.' At this election a majority of the voters were found to be in favor of the measure. Afterwards funding bonds were issued in exchange for old bonds in the following form:--

'For value received, the county of Jasper, in the State of     Illinois, promises to pay the bearer one thousand dollars on      the first day of May, A. D. 1897, with interest from date,      payable on the first days of May and November in each year      (on surrender of the annexed coupons), at the rate of seven      per cent per annum, until the principal sum shall be paid.

'Principal and interest payable at the county treasurer's     office, in the town of Newton, in said county. The county of     Jasper reserves the right to pay this bond on or at any time      after May 1st, 1887, upon giving at said place of payment,      and also by an advertisement in some New York City daily      newspaper at least six (6) months' notice of such intention,      and interest shall cease from the day on which this bondis      by such notice made payable.

'This bond is one of a series of bonds numbered from 1 to     100, inclusive, amounting in all to one hundred thousand      dollars, issued by said county of Jasper, for the purpose of      funding legally incurred indebtedness of the county and under      and in accordance with an act of the General Assembly of the      State of Illinois, approved April 14th, 1875, entitled 'An      Act to amend an act entitled 'An Act to enable counties,      cities, townships, school districts, and other municipal      corporations to take up and cancel outstanding bonds and      other evidences of indebtedness, and fund the same," approved      and in force March 26, 1872, all provisions of which act have      been duly complied with.

'In testimony whereof, we, the undersigned, officers of     Jasper County, being duly authorized to execute this      obligation on its behalf, have hereunto set out signatures      and affixed the county seal this ___ day of May, A.D. 1877.

'County Clerk.

'Chairman.'

[SEAL.]

After these bonds were put out the indebtedness of the county exceeded somewhat five per cent of the value of the taxable property as ascertained by the last preceding assessment. The plaintiff below, and defendant in error here, being the owner of coupons cut from some of the funding bonds falling due in May and November, 1878 and 1879, which were unpaid, brought this suit to recover them. He was the holder and in possession of a part or the whole of the original bonds when the funding took place, and took the funding bonds in exchange for such of the original bonds as he then held.

Upon this state of facts the court below gave judgment against the county. The case is now here by writ of error, and the single question is presented, whether the county made out a valid defence to the coupons sued on.

In our opinion the county is estopped from setting up the alleged invalidity of the original bonds as a defence in this action. It is true the funding law only authorized the funding of 'binding and subsisting legal obligations,' 'properly authorized by law,' but no new bonds could be issued in lieu of old ones except on a vote of the people. All outstanding bonds were not to be taken up in this way, but only such as were recognized by the people, acting together in their political capacity at an election for that purpose, as binding and subsisting legal obligations. After such a recognition the corporate authorities could make the exchanges, but not before.

The law under which the original bonds were put out was sufficient. No complaint is made of any illegality in its provisions. The only objection is that there was a mistake in carrying it into execution. The election was called by the wrong corporate agency. The county court should have brought the people together and not the board of supervisors. This, if there had been nothing more, would, under the rulings of the highest court of the State, made long before the vote was taken, render the bonds invalid. Supervisors of Schuyler Co. v. People, 25 Ill. 181. It was for this reason, undoubtedly, that the board of supervisors, at their meeting after the election, authorized the subscription to be made and the bonds delivered in payment as soon as it might lawfully be done, and that the act to legalize the election was passed in 1869. We have not had our attention called to any case in which the courts of the State had decided, before this funding took place, that, under the Constitution of 1848, an act which simply legalized an invalid or irregular election for a subscription, and left the corporate authorities free to make the subscription at their option, would not cure any defect there may have been in the election, and empower the proper authorities to bind the county by anything that might be done under it and within its scope. It had been decided more than once that the legislature could not compel a municipal corporation to incur a debt without the consent of the corporate authorities. Harward v. St. Clair Drainage Co., 51 Il. 130; Hessler v. Drainage Commissioners, 53 id. 105; Marshall v. Silliman, 61 id. 218. But under the Constitution of 1848 a vote of the people was not essential to the validity of a municipal subscription to the stock of a railroad company. The legislature could authorize the corporate authorities, whoever they might be, to act in such a matter without the express direction of the people. What it could not do was to make it nandatory on on them to subscribe without a vote. This we understand to have been the extent of the decisions, and in this way it was that, if with the legalization of the vote there was coupled a command on the corporate authorities to subscribe, or a confirmation of a subscription already made, the curative statutes were held to be inoperative. It had never been held that language, such as was employed in this curative act, was compulsory, or that it did more than legalize the election, leaving it for the board of supervisors to determine whether they would subscribe or not. That was an open question in the State courts until the case of Gaddis v. Richland County (92 id. 119), not decided until June, 1879, two years and more after the bonds now in question were out.

When, therefore, the people were called on to vote whether the old bonds should be funded, the facts they had to consider were these: A valid law authorizing the subscription and an issue of the bonds had been passed. The people, at an election which had been irregularly called, had voted to make the subscription and issue bonds bearing ten per cent interest, and all payable within six years. An act had been passed to legalize the election, and under it the subscription which had been voted was made, and bonds such as were contemplated had been issued and were then outstanding in the hands of various parties. Whether these bonds were valid was, so far as any direct decisions were concerned, an open question, and certainly not free from doubt. Under these circumstances the question was directly put to the people of the county, in a manner authorized by law, whether they would recognize these bonds as 'binding and subsisting legal obligations,' and issue in lieu of them other bonds having twenty years to run and bearing seven per cent interest instead of ten; and they by their vote said they would. There is no complaint of any illegality in this election, or of fraud or imposition. So far as the record shows, the proposition to fund went from the county authorities to the bondholders, and not from the bondholders to the county. The facts were as well known to one party as the other. If the people intended to rely on their defences to the old bonds, then was the time for them to speak and by their vote say they would not recognize them as binding obligations. By voting the other way they, in effect, accepted them as legal and subsisting for the purposes of the proposed extension of time at reduced interest, and said to the holders if their proposition was accepted, no question of illegality would be raised. Their offer having been accepted, they are now estopped from insisting upon an irregularity which they have by their votes voluntarily waived, with a full knowledge of the facts. The case is clearly, as we think, within the principle acted on by the Supreme Court of the State in President and Trustees of the Town of Keithsburg v. Frick, 34 Ill. 405. As was very properly said below by the learned circuit judge, 'there must be an end of these contests and defences some time or other.' There must be a time when the people in their political capacity are concluded by their contracts as much as individuals, and we think that where the people of a county, at an election held according to law, authorize their corporate or political representatives to treat certain outstanding county obligations as 'properly authorized by law' for the purpose of negotiating a settlement with the holders, and the settlement which was contemplated has been made, all contests as to the validity of the obligations mst be considered as ended.

This disposes of all questions as to the excessive issue of bonds. For all the purposes of this case the original bonds must be taken as binding. The issue of the funding bonds did not increase the aggregate of the indebtedness of the corporation, but only changed its form.

Judgment affirmed.


text: Talk:County of Jasper v. Ballou/Opinion of the Court


text:
Williams v. Claflin

APPEAL from the Circuit Court of the United States for the District of South Carolina.

Motion to vacate the supersedeas, or for a new bond.

Mr. George F. Edmunds and Mr. James Lowndes in support of the motion.

Mr. Philip Phillips and Mr. Samuel Lord, Jr., in opposition thereto.

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

title: Williams v. Claflin


text: Talk:Williams v. Claflin

title: Talk:Williams v. Claflin


text:
Williams v. Claflin/Opinion of the Court

In Jerome v. McCarter (21 Wall. 17), we said that if, after security on an appeal which operated as a supersedeas had been accepted, the circumstances of the case, or of the parties, or of the sureties on the bond, had changed, so that the security, which at the time it was taken was sufficient, did not continue to be so, we might, on proper application, so adjudge and order as justice should require. The present appellants are interested only in preserving their security for a debt of the railroad company amounting, when the decree was rendered, to about $152,000. When they took their appeal, execution of the whole decree had been stayed by another appeal of the present appellees, who were the complainants below. Consequently the amount of security to be given then by these appellants was a matter of but little importance comparatively. The other appeal has been dismissed, and in this way the circumstances of the case are materially changed. It is easy to see that what was sufficient security on this appeal when taken is probably not so now. The bonds secured by the mortgage according to the decree amount to several millions of dollars, and the value of the security is necessarily subject to the fluctuations of trade. The appellants are to a considerable extent interested in the same bonds, but if their debt is paid in full they cannot complain at the execution of the decree.

The supersedeas herein will be so far modified as to allow a sale of the mortgaged property to be made under the decree, but the court below will retain in its registry, subject to the order of this court until the final determination of the present appeal, so much of the proceeds as shall be sufficient to satisfy and discharge any balance that may remain of the debt due these appellants, after the proportionate share they receive under the decree upon the bonds and coupons held by them as collateral shall have been applied thereon; and it is

So ordered.


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


text:
The Connemara

MOTION to dismiss an appeal from the Circuit Court of the United States for the District of Louisiana, united with a motion to affirm the decree.

Mr. Richard De Gray and Mr J. R. Beckwith in support of the motion.

Mr. Philip Phillips, contra.

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

title: The Connemara


text: Talk:The Connemara

title: Talk:The Connemara


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Page:Dictionary of National Biography volume 06.djvu/97

 Bowyer ' appeared in 1772, 8vo; 3rd ed. 1782, 4to; 4th ed., much enlarged, 1812, 4to. In 1765 Bowyer had some intention of purchasing a lease of exclusive privilege of the university press, but the scheme fell through. Early in the next year he took into partnership the apprentice-manager of his business, and thenceforward the ever-increasing success of the business was insured. The typographical anecdotes of the Bowyer Press from 1722, when Bowyer became a partner with his father, to 1766, when he took John Nichols into partnership, extend in Nichols's 'Literary Anecdotes of the Eighteenth Century' to 703 closely printed 8vo pages, and from the latter date to his death in 1777 the joint productions of Bowyer and Nichols occupy in description and anecdotes 293 further pages of the same work. In 1766 Bowyer brought out with an excellent Latin preface—'Joannis Harduini Jesuitse ad censuram Scriptorum Veterum Prolegomena.' In 1767 he was appointed to print the rules of parliament and the journal of the House of Lords through the influence of the Earl of Marchmont; and at this time, for want of room, the printing-office was removed from Whitefriars to Red Lion Passage, where he placed the sign of Cicero's head, and styled himself 'Architectus Verborum.' The anxiety consequent upon this removal from the place of his birth brought on a touch of paralysis, that affected him throughout his after life. In 1771 his second wife died, aged 70. She had assisted in correcting the press until young Nichols took her place. In the preface to the second edition of 'Conjectural Emendations,' 1772, Bowyer craves indulgence from his readers in consequence of suffering from palsy and affection of the stone and bilious colic, but still continued his literary labours. In 1773 he translated and published 'Select Discourses from Michaelis, on the Hebrew Months, Sabbatical Years,' &c. 12mo; in 1774 he published anonymously his well-known work, 'The Origin of Printing, in Two Essays, 8vo,' in which he was assisted by Dr. Owen and Mr. Missy. A second and enlarged edition appeared in 1776, 8vo, with a supplement in 1781, 8vo, by Mr. Nichols. In 1776 he was laid up for weeks with paralysis; still he managed to push forward his last editorial work, Dr. Bentley's 'Dissertation on the Epistles of Phalaris,' which was not published until 1782 (8vo), five years after his death.

In the last year of his life he published 'Rolls of Parliament' in six folio volumes, and thirty-one volumes of the 'Journal of the House of Lords,' and he had a multitude of works in the press—for instance, the two handsome folios of 'Domesday Book,' which were not completed until 1783. He died on 18 Nov. 1777, aged 77. Most of his learned pamphlets, essays, prefaces, corrections, and notes have been reprinted as 'Miscellaneous Tracts by the late William Bowyer … collected and illustrated with notes by John Nichols, F.S.L. Edin.,' London, 1785, 4to, pp. 712.

Bowyer was a man of very small stature, and in the jeux d' esprit of his day we find him called 'the little man,' 'a little man of great sufficiency.' In character he was very amiable, and his cheerful disposition and learned conversation cemented many a lifelong friendship. Every species of distress was relieved by him, and so privately that the knowledge of his kindness came only from letters found after his death. His will, made 30 July 1777, often reprinted, is full of an affectionate and grateful spirit to the institutions and families of persons who had helped his father in the trouble of the great fire. To his own profession this will shows him a great benefactor, and his bequests are now administered by the Stationers' Company. For religion he had a great regard, and his moral character was unimpeachable. In the church of Low Leyton, Essex, there is a white marble monument to the memory of his father and himself, with a Latin inscription by him. A bust of him is placed in Stationers' Hall, with his father's portrait, and the brass plate underneath has an inscription in English in reference to the fire of 1712. His portrait by Basire is the frontispiece to vol. ii. of Nichols's 'Literary Anecdotes,' 1812, 8vo. The 1812 edition of his 'Conjectural Emendations' has a fine quarto-sized portrait of him as 'Gulielmus Bowyer, Architectus Verborum, æt. lxxviii.,' with various emblems beneath, including the phoenix, symbolical of the rise of the new firm from the memorable fire. There are also inferior portraits in Hansard's 'Typographia' and Wyman's 'Bibliography of Printing.' Each representation reveals to us a severe face as of one of the old puritans, in remarkable contrast to the genial faces of his father and his successor. His son Thomas survived him. He was intended to be his father's successor in business, but seems to have been a very wayward youth, though it is clear from his father's gossiping letters on domestic matters that it was the stepmother's refusal to take proper care of 'Tom,' and her extraordinary affection for her young nephew, Emonson, that disgusted the lad and turned the current of his life. Ordained by Bishop Hoadly for the church, and for a time curate at Hillsdon, Middlesex, he then became a


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The Connemara/Opinion of the Court

The suit below was by a set of salvors to recover for a single salvage service, and there was but one claim filed for the property saved. The total amount of the recovery was $14,198, but in the division among the several parties entitled to share in the recovery some got less than $5,000. Separate and distinct interests were not united in the suit. The service rendered was the joint service of all the salvors, and the recovery was on that account. It was a matter of no consequence to the owners of the property saved how the money recovered was apportioned among those who had earned it. The owners were decreed to pay the salvors for what they, acting together in a common service, had done. In such a suit we think the owners cannot be deprived of their appeal because the court below, in the further progress of the cause, saw fit to pp ortion the recovery among the salvors according to their respective merits. The decree is, in legal effect, one decree in favor of all the salvors, they having, as between themselves, unequal interests.

In all the cases where we have held that several sums decreed in favor of or against different persons could not be united to give us jurisdiction on appeal, it will be found that the matters in dispute were entirely separate and distinct, and were joined in one suit for convenience and to save expense. Thus, in Seaver v. Bigelows (5 Wall. 208), separate judgment creditors joined to set aside a fraudulent conveyance of their debtor, and the appeal was from a decree dismissing their bill; in Rich v. Lambert (12 How. 347), several owners of a cargo, who had distinct interests, united in a libel against the ship to recover for damages done to the goods, and the appeal was from a decree in favor of each owner for his separate loss; in Oliver v. Alexander (6 Pet. 143), the libel was by seamen to recover their wages, and the decree was in favor of each man separately for the amount due him individually; and in Stratton v. Jarvis (8 id. 4), the decree was against each claimant of the goods saved by salvage service for his separate and distinct share of the salvage. The cases were heard, so far as the merits were concerned, precisely the same as if separate libels had been filed for each cause of action, and the decrees as entered were as in case of separate suits. Rich v. Lambert, supra. Here, however, the matter in controversy was the amount due the salvors collectively, and not the particular sum to which each was entitled when the amount due was distributed among them. As in Shields v. Thomas (17 How. 3), 'they all claimed under one and the same title. They had a common and undivided interest in the claim, and it was perfectly immaterial to the appellants how it was to be shared among them. If there was any difficulty as to the proportions,. . . the dispute was among themselves.'

The case, upon the merits, is one which we are not inclined to consider on a motion to affirm.

Motions denied.

title: The Connemara/Opinion of the Court


text: Talk:The Connemara/Opinion of the Court

title: Talk:The Connemara/Opinion of the Court


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Railway Company v. Sprague

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

The facts are stated in the opinion of the court.

Mr. Joseph E. McDonald and Mr. James Emott for the appellant.

Mr. Clarkson N. Potter for the appellee.

MR. JUSTICE WOODS delivered the opinion of the court.

title: Railway Company v. Sprague


text: Talk:Railway Company v. Sprague

title: Talk:Railway Company v. Sprague


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Railway Company v. Sprague/Opinion of the Court

This was a suit in equity in which the Union Trust Company of New York was complainant, and the Indiana and Illinois Central Railway Company and others were defendants. It was brought for the foreclosure of a mortgage upon the property of the railway company, and it resulted in a decree of foreclosure and sale. An interlocutory decree directed a master of the court to ascertain and report the names of all the holders of bonds and coupons, which had been duly issued under the mortgage, and were entitled to share in the proceeds of the sale.

Under this order of reference Mrs. Henrietta P. Sprague, the appellee, presented a claim to be the owner and holder of seventy-five bonds, numbered from 629 to 703 inclusive, of $1,000 each, with coupons attached. The railway company objected to the allowance of her claim. The master heard the proofs of the parties and the arguments of their counsel, and reported that she had made sufficient proof of her ownership of the bonds in question, and that they were entitled to be paid out of the purchase-money of the road. To this report the railroad company filed exceptions. The court, at the May Term, 1878, overruled the exceptions, and entered a decree directing, among other things, that the seventy-five bonds of the appellee, with the coupons thereto annexed, should be allowed as valid, and as secured equally with the other outstanding bonds by the mortgage foreclosed, and that they should be paid their pro rata shares out of the proceeds of the foreclosure. From this order, and this part of the foreclosure decree in the cause, the railway company brings this appeal.

Mrs. Sprague was the widow and administratrix of John H. Sprague, deceased. J. Elliott Condict had long been a friend of her husband, doing business in New York in railway securities, under the style of 'Condict & Co., bankers and brokers.'

In February, 1870, she loaned Condict $25,000, for which she took his note. Before its maturity he advised her to buy, and offered to sell her, $75,000 of the first-mortgage bonds of the Madison and Portage Railroad Company. She made the purchase for the price of $60,000, and paid that sum partly by giving up to him his note to her for $25,000 money loaned, and the residue in securities at the market price. This purchase was made in November, 1870.

The Madison and Portage Railroad Company failing to pay interest on its bonds, she, on June 24, 1871, of Condict's instance, returned them to him, and received from him in exchange seventy-five bonds for $1,000 each of the Indiana and Illinois Central Railway Company.

These bonds were dated April 1, 1870, and secured by a mortgage or deed of trust of the same date. At the time of the exchange there were attached to each of the bonds which Mrs. Sprague received all the coupons, beginning from the date of the bonds, sixty in number. Of these coupons two, one payable Oct. 1, 1870, and one payable April 1, 1871, for thirty-five dollars each, were past due and unpaid. The bonds contained this provision: 'In case of the non-payment of any half-yearly instalment of interest, which shall have become due and been demanded, and such default shall have continued six months after demand, the principal of this bond shall become due in the manner and with the effect provided for in the trust deed securing its payment.' The bond also recited that it, together with the residue of two thousand seven hundred and fifty bonds, was secured by a deed of trust or mortgage, dated the first day of April, 1870. The mortgage contained the following clause: 'In case default be made for six months in the payment of any interest upon either of said bonds when the same shall become due and payable, the whole principal sum in all and each of said bonds shall forthwith become due and payable, and the lien or incumbrance hereby created for the security and payment of such bonds may be at once enforced, anything herein to the contrary notwithstanding.'

Before making the exchange of bonds, Mrs. Sprague had placed the management of the affair in the hands of Mr. John M. Whiting, as her counsel, who, in her behalf, investigated not only the question of the value of the Indiana and Illinois Central Railway bonds, but also of the right of Condict to sell them. At the time of this investigation the Indiana and Illinois Central Railway was not a completed but only a projected road. Condict was vice-president and acting president of the company. There was an executive committee consisting of three members besides the president. These were Condict, Seaman, and Lazare.

Five hundred bonds of $1,000 each, secured by the mortgage of April 1, 1870, had been executed. Before they could be issued they had to be countersigned by the Union Trust Company. They were so countersigned and delivered to the railroad company, and were in all respects regularly executed.

In June, 1871, three hundred of the bonds were delivered by the treasurer of the company to Condict and Lazare, members of the executive committee. They delivered two hundred of them to parties to whom they belonged. The residue remained in the possession of Condict. He did not appear to have any express authority from the company to sell or dispose of them, but claimed to have a lien on them for advances made to the company. There was evidence tending to show, however, that the company had never received consideration for the bonds transferred to Mrs. Sprague, but none to show that she, so far as it regarded any direct notice to her personaly, was not a bona fide purchaser.

Whiting, in his testimony touching what he learned of Condict's right to transfer the bonds, said: 'He came to me with statements, and upon them I acted. He asserted his entire capacity to make the exchange; that he owned the bonds; that he had made advances to the company; that they were his by the highest possible title, and made all the asseverations under my very sharp and close cross-examination. He claimed to own the bonds.' Whiting also testified as follows: 'Seaman,' the colleague of Condict on the executive committee, 'assured me of Condict's right to assign them,' the bonds. 'My memory is very active on this point. He sustained him,' Condict, 'in every regard.'

The error complained of in the part of the decree appealed from is this: It being established by the evidence and reported by the master that the company had never received any value for its bonds either from Mrs. Sprague or any other person, the court erred in holding that she was a purchaser for value and without notice, and that the bonds were instruments of such a character and in such a condition as to enable her to enforce them against the company, notwithstanding the fact that it had received no value for them.

It is not disputed that they, when first executed and made ready for circulation, had all the qualities of commercial paper. The contention of the appellant is that Mrs. Sprague was not a purchaser in good faith and for value.

It seems to be conceded, and the evidence establishes, that no facts were known to her in relation to them other than those which came to the knowledge of her agent, Whiting. Of course she was bound by what he knew. Does the knowledge of the facts learned by him, and which it is presumed he communicated to her, make her a purchaser in bad faith?

Two facts must be taken as established: First, Condict's custody of the bonds was lawful. The appellant admits that it placed them in his possession for safe keeping. Second, There can be no question that Mrs. Sprague paid full value for them.

Possession of negotiable bonds carries with it the title to the holder. Murray v. Lardner, 2 Wall. 110. Mrs. Sprague, therefore, bought the bonds of a person presumptively the owner, and paid for them a full and valuable consideration.

Condict was an officer of the company, and as such had possession of the bonds. If he had told Mrs. Sprague or her agent that he was selling the bonds for the company and as its agent, and had then applied them to the payment of his individual indebtedness to her, her purchase would have been made in bad faith. But this is not the case. Having possession of them, and being prima facie their owner, he asserted to her agent in the most positive manner that they were his property. The fact that he was an officer of the company did not of itself preclude him from dealing in them, or throw the slightest suspicion on his title.

The question, therefore, and the only question in the case is, Was there anything upon the face of the bonds and of the mortgage which secured them to put the purchaser on notice? The appellant asserts that there was; that attached to each of the bonds sold to Mrs. Sprague were two unpaid coupons, due respectively October, 1870, and April, 1871, and that this fact, by the terms of the bonds and of the mortgage which secured them, rendered the principal due and payable, and that as a consequence, when she purchased them, they were dishonored paper.

There appears to be a difference between the terms of the bonds and of the mortgage. The mortgage provided, that upon non-payment of interest for six months the principal of the bonds should become due, whether demanded or not. On the other hand, the bonds declared that in case of the non-payment of any half-yearly instalment of interest which had become due and had been demanded, if such default should continue six months after demand, the principal of the bond should become due. A copy of the bonds was set out in full in the mortgage.

The bons being the principal thing containing the obligation of the company, and the mortgage a mere security to insure the performance of that obligation, the terms of the bonds should control.

Therefore a demand for the payment of her coupons and a failure to pay for six months were necessary to make the principal of the bonds payable. There having been no demand of the overdue coupons, it follows that by the terms of the bonds the principal sum was not due when Mrs. Sprague purchased.

The controversy, therefore, is reduced to this: Did the mere presence upon the bonds purchased by Mrs. Sprague of two past-due unpaid interest coupons make the bonds dishonored paper?

Coupons are separable obligations for the interest payable upon demand. It constantly occurs that they are not demanded for weeks and months, and sometimes years, after they are due. As they bear interest after maturity, it will frequently happen that the owner of a bond who holds it as an investment will keep the coupon for the same purpose.

Bonds executed by a railroad company may not be put upon the market until one or more coupons have matured. The company may cut them off when it sells the bonds, or leave them on to be accounted for in the purchase.

Negotiable bonds have been used as a means of raising money, not only by railroad companies, but by the national government, states, counties, and cities. To hold that the moment an unpaid coupon is left on a bond its character and negotiability are changed would greatly embarrass the traffic in such securities and lead to endless uncertainty and confusion.

The mere presence, therefore, of two unpaid coupons upon the bonds purchased by Mrs. Sprague was not of itself sufficient evidence of the dishonor of the bonds to which they were attached.

This point has been expressly ruled by this court in Cromwell v. County of Sac, 96 U.S. 51. In that case, the court, speaking by Mr. Justice Field, said: 'The non-payment of an instalment of interest when due could not affect the negotiability of the bonds or of the subsequent coupons. Until their maturity a purchaser for value, without notice of their invalidity as between antecedent parties, would take them discharged from all infirmities.' To the same effect see National Bank of North America v. Kirby, 108 Mass. 497, and Boss v. Hewitt, 15 Wis. 260.

In Parsons v. Jackson (99 U.S. 434), the bonds of the railroad company which were the subject of controversy had never been issued, but had been stolen from its office. They were made payable either in New Orleans, New York, or London, as the president of the company might by his indorsement on the bonds determine. They did not contain his indorsement designating the place of payment; they were offered in the New York market and sold for a very small consideration. Coupons for several years, due and unpaid, were attached to them. The court held that all these circumstances affected the purchaser with notice of the invalidity of the bonds.

It is true the court said that the presence of the past-due and unpaid coupons was of itself an evidence of dishonor sufficient to put the purchaser on inquiry. But the case did not turn on this circumstance alone. There were other significant indications of the invalidity of the bonds, and the opinion must be restricted to the case before the court.

But conceding for the sake of argument that the possession of two unpaid coupons on the bonds purchased by Mrs. Sprague had been sufficient to put her on inquiry, she can only be charged with knowledge of the facts which she might have learned by inquiry.

Investigation would have disclosed to her, as the record shows, that the construction of the road of the company by which the bonds were issued was just begun; that of the twenty-seven hundred and fifty bonds, for one thousand dollars each, which the mortgage was executed to secure, only five hundred had been signed and prepared for circulation; that these bonds had not been put upon the market for sale, ut that a part of them had been used as collateral security for debts due from the company, and that those sold to her had not been put in general circulation, but, after their execution, had been turned over to Condict, the vice-president of the company, who, on account of his advances to it, claimed to be their owner, and that none of the coupons on any of the five hundred bonds had been paid. If, therefore, Mrs. Sprague had investigated the reason why the two past-due coupons, on the bonds which she purchased, had not been paid, these facts would have afforded a most satisfactory explanation.

'The party who takes negotiable coupon bonds, before due, for a valuable consideration, without knowledge of any defect of title and in good faith, holds them by a title valid against all the world. Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transaction, will not defeat his title. That result can be produced only by bad faith on his part.' Murray v. Lardner, 2 Wall. 110.

'Bonds for the payment of money, with interest warrants attached, are everywhere encouraged as a safe and convenient medium for the settlement of balances among mercantile men; any course of judicial decision calculated to restrain or impede their free and unembarrassed circulation would be contrary to the soundest principles of public policy.

'Such instruments are protected in the possession of an indorsee, not merely because they are negotiable, but also because of their general convenience in mercantile affairs.' Smith v. Sac County, 11 Wall. 139.

The inference to be drawn from these authorities, when applied to the facts in this case, is that Mrs. Sprague was a bona fide purchaser for value of the bonds transferred to her by Condict.

Our conclusion, therefore, is that Circuit Court was right in directing a pro rate payment to be made on her bonds out of the proceeds of the property in which they were secured.

Decree affirmed.


text: Talk:Railway Company v. Sprague/Opinion of the Court


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Hinckley v. Morton

MOTION to dismiss an appeal from the Circuit Court of the United States for the Southern District of Illinois, with which is united a motion to affirm.

Mr. R. Biddle Roberts in support of the motions.

Mr. Leonard Swett and Mr. Philip Phillips, contra.

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

title: Hinckley v. Morton


text: Talk:Hinckley v. Morton

title: Talk:Hinckley v. Morton