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Northern National Bank of Toledo Ohio v. Trustees of Porter Township/Opinion of the Court

On the fifteenth day of April, 1851, the commissioners of Delaware county, Ohio, passed an order submitting to the voters of that county, at a special election to be held on the seventeenth day of June thereafter, a proposition to subscribe the sum of $50,000 to the capital stock of the Springfield & Mansfield Railroad Company, a corporation created under the laws of that state, and whose name was subsequently changed to that of the Springfield, Mt. Vernon & Pittsburgh Railroad Company. This proposition was approved by the electors, and subsequently, August 4, 1851, the county commissioners made a subscription of the amount voted, payable in bonds of the county. On December 6, 1851, the commissioners signed the requisite number of bonds, payable to the railroad company, and deposited them with the auditor for delivery when the road was located and a contract made for its construction through the county. It having been claimed that these bonds were defectively executed, others were signed by the commissioners on the twenty-seventh day of December, 1852, to be retained by the auditor until those first signed were returned, which being done that officer was directed to deliver the new bonds to the company, or to some person authorized to receive them.

After the vote in favor of a county subscription of $50,000, and two days before the formal subscription in its behalf by the county commissioners, that is, on the second day of August, 1851, the trustees of Porter township, in Delaware county, passed an order submitting to the voters of that township, at a special election to be held on the thirtieth day of August thereafter, a proposition for a subscription of not exceeding $10,000 and not less than $8,000 to the capital stock of the same company, payable in township bonds, upon the condition that the road should be permanently located and established through that township. The proposition was approved by the voters, and subsequently, on May 6, 1853, township bonds for the amount voted, with interest coupons attached, were issued. They were made payable to the railroad company or its assignees, and were in the customary form of negotiable municipal bonds. Each one recited that it was 'issued in part payment of a subscription of one hundred and sixty shares of fifty dollars each to the capital stock of the said Springfield, Mt. Vernon & Pittsburgh Railroad Company, made by the said township of Porter in pursuance of the provisions of the several acts of the general assembly of the state of Ohio, and of a vote of the qualified electors of said township of Porter taken in pursuance thereof.'

This action involves the liability of the township upon these bonds. The judgment below necessarily proceeded upon the ground that they were void for want of legal authority in the township to issue them. In behalf of the plaintiff in error, the present holder of the bonds, it is claimed that there was statutory authority for their issue, and that, apart from any question of such authority, the township is estopped by their recitals, and by numerous payments of annual interest, from disputing its liability. Whether the township had legal authority to execute them, is the first question to be considered.

By the first section of an act of the general assembly of Ohio, passed February 28, 1846, it is provided that whenever county commissioners should thereafter be authorized to subscribe to the capital stock of any railroad company incorporated in that state, it shall be their duty 'to give at least twenty days' notice * *  * to the qualified voters of said county to vote at the next annual election to be held in the several townships *  *  * in said county, for or against the subscription as aforesaid; and if a majority of the electors aforesaid, voting at said election for or against a subscription as aforesaid, shall be in favor of the same, such authorized subscription may be made, but not otherwise.' 1 S. & C. note, 275.

By the charter of the Springfield & Mansfield Railroad Company, granted March 21, 1850, it is provided that 'the county commissioners of any county through which said railroad may be located, shall be, and they are hereby, authorized to subscribe to the capital stock of said company any sum not exceeding $50,000,' and for the payment thereof power was given to borrow money, lay and collect taxes, etc.; further, that 'if the county commissioners of any county through which said road shall pass, shall not be authorized by the vote of said county to subscribe stock to said road, the trustees of any township through which said road may be stock of said company any sum not exceeding to subscribe any sum of money not exceeding fifty thousand dollars to the capital stock of said company, and provide for the payment of said stock in the same manner that county commissioners aforesaid are authorized: provided, that the total amount which may be subscribed to the capital stock of said company by any county, and the townships therein, on the line of said road, shall not exceed one hundred thousand dollars;' still further, that 'no subscription shall be made by the county commissioners of any county, or the trustees of any township through which said road may be located, until a vote of the qualified voters of such county or township has been declared in favor of such subscription, in the manner pointed out in the mode of proceeding when county commissioners may be authorized by law to subscribe to the capital stock of railroads, turnpike roads, or other incorporated companies in this state, passed February 28, 1846.' 48 Ohio Laws, 294; Act March 21, 1850, §§ 4, 5, 6. But by an act passed March 25, 1851, county commissioners of the several counties through or into which the Springfield & Mansfield Railroad shall be located, were authorized to cause the question of subscription provided for in the act of March 21, 1850, 'to be submitted to the qualified voters of their respective counties, at a special election, to be by them called for that purpose, at any time thereafter, having first given twenty days' previous notice;' further, that 'if the commissioners of any of the counties aforesaid shall not be authorized by the vote as aforesaid to subscribe to the capital stock of said company on behalf of their respective counties, then, and in that case trustees provided for in the same act incorporating said railroad company shall be submitted to the people of the respective townships, at a special election, to be called as provided for in the first section of this act,'-such elections to be conducted in all respects in the same manner provided for in the charter of the company, except as modified by the said act of March 25, 1851.

The authority of Porter township to issue the bonds in question must be derived from the provisions of these acts of assembly. If not found in them, it must be adjudged that no such authority existed.

The fundamental proposition advanced in behalf of plaintiff is that, immediately upon the passage of the act of March 21, 1850, Porter township was vested with power to make a subscription to the stock of the company; that the non-authorization of the commissioners, by a vote of the electors, to make a county subscription was only a condition precedent to the exercise of that power; consequently, that the township is estopped by the recitals in the bonds and its acquiescence for a series of years, as evidenced by payments of interest, to rely upon the non-fulfillment of that condition. In this construction of the acts in question we are unable to concur. It is entirely clear, we think, that the township was without power to make a subscription until the time arrived when it could be properly said that the county, as such, had not been authorized by a vote of the electors to make a subscription. We do not mean to say that the right of townships on the line of the road to make subscriptions could be indefinitely postponed by the mere neglect or failure of the county commissioners to submit the question of subscription to a popular vote. That construction, the supreme court of Ohio correctly said in Shoemaker v. Goshen Tp. 14 Ohio St. 580, 'would defeat the manifest intention of the statute, which contemplates and authorizes the submission of the question to townships when subscription on behalf of the county is refused.' Such refusal would undoubtedly exist whenever the electors, upon a submission of the question, expressed their disapproval of a county subscription. But, within any just interpretation of the words of the statutes, the power of townships to act would come into existence not only by a direct refusal of the commissioners to submit the question of subscription to popular vote, but upon their failure within a reasonable time to call an election for that purpose. Shoemaker v. Goshen Tp., supra.

The first annual election in townships after the passage of the act of March 21, 1850,-which act, by reference to that of 1846, contemplated that the question of subscription would be determined at an annual election,-was on the first Monday in April of that year. No submission, however, of that question could have been ordered for that election, because it occurred within 20 days after the passage of the act of 1850. The short time intervening between those dates prevented the requisite notice being given; consequently, the first annual election in townships at which the county commissioners could under that act have taken the sense of the electors was that fixed by law for the second Tuesday of October, 1850. Did the mere failure to sumbit the question of a county subscription at the last-named election justify the township in claiming that the commissioners had not been authorized by a vote of the county to make a subscription? Were townships, from and after that date, and solely because of such failure, invested with power to move in the matter of subscriptions to the stock of this company? These questions we deem it unnecessary to determine; for, if answered in the affirmative, it still appears that no such power was in fact exercised by Porter township prior to the passage of the act of March 25, 1851; by which act, as correctly adjudged by the supreme court of Ohio in Shoemaker v. Goshen Tp., the former statutes were so far modified as not only to renew the power of county commissioners to subscribe to the stock of this company, if thereunto authorized by the voters at a special election, but, in language more direct and specific than employed in former statutes, to make the authority of townships to subscribe depend upon the county commissioners not having been authorized to make a county subscription. The general assembly of Ohio, it must be presumed, knew at the passage of the act of March 25, 1851, what particular counties and townships had then made subscriptions to the stock of this railroad company. That act was passed with reference to the situation as it actually was. When, therefore, upon the basis of non-authorization of the commissioners to make a county subscription, it was provided in the act of March 25, 1851, that 'then and in that case' townships might subscribe, it must have been intended that the authority of any township, which had not then acted, to subscribe should exist only where, after the passage of the latter act, a county subscription had been negatived either by a vote of the people or by the refusal or failure of the commissioners within a reasonable time to submit the question to a popular vote. If this be not so, then Porter township would have been authorized in its discretion to vote on a proposition to subscribe either at the annual election in April, 1851, or at any special election thereafter held, notwithstanding the county may have previously made a subscription. But such we cannot suppose to be a correct interpretation of the statute. Consequently, from and after March 25, 1851, it was apparent from the terms of the act of that date that Porter township had no legal authority to make a subscription of stock, except in the contingency-which the township could not control, but of which it and all others were bound to take notice-that the commissioners had not been authorized to subscribe for the county. So far from that contingency ever arising, the commissioners (before the township election was called) had been authorized by popular vote to subscribe, and they did in fact subscribe, the sum of $50,000. It cannot, therefore, be said that the commissioners were not authorized by a vote of the county to subscribe at the time Porter township voted; consequently, the latter was without legal authority to make a subscription. This conclusion is satisfactory to our minds, and is, besides, sustained by the decision of the supreme court of Ohio in Hopple v. Trustees of Brown Tp. 13 Ohio St. 311, reaffirmed in Hopple v. Hipple, 33 Ohio St. 116.

It is, however, contended that by the settled doctrines of this court the township is estopped by the recitals of the bonds in suit to make its present defense. The bonds upon their face purport to have been issued 'in pursuance of the provisions of the several acts of the general assembly of the state of Ohio, and of a vote of the qualified electors in said township of Porter, taken in pursuance thereof.' These recitals, counsel argue, import a compliance in all respects with the law, and therefore the township will not be allowed, against a bona fide holder for value, to say that the circumstances did not exist which authorized it to issue the bonds. It is not to be denied that there are general expressions in some former opinions which, apart from their special facts, would seem to afford support to this proposition is the general terms in which it is presented. But this court said in Cohens v. Virginia 6 Wheat, 399, and again in Carroll v. Lessee of Carroll, 16 How. 287, that it was 'a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.' An examination of the cases in which those general expressions are found, will show that the court has never intended to adjudge that mere recitals by the officers of a municipal corporation, in bonds issued in aid of a railroad corporation, precluded an inquiry even where the rights of a bona fide holder were involved, as to the existence of legislative authority to issue them.

A reference to a few of the adjudged cases will serve to illustrate the rule which has controlled the cases involving the validity of municipal bonds. In Com'rs Knox Co. v. Aspinwall, 21 How. 542, power was given to county commissioners to subscribe stock, to be paid for by county bonds, in aid of a railroad corporation; the power to be exercised if the electors, at an election duly called, should approve the subscription. It was adjudged that as the power existed, and since the statute committed to the board of commissioners authority to decide whether the election was properly held, and whether the subscription was approved by a majority of the electors, the recital in bonds, executed by those commissioners, that they were issued in pursuance of the statute giving the power, estopped the county from alleging or proving, to the prejudice of a bona fide holder, that requisite notices of the election had not been given. In Bissell v. City of Jeffersonville, 24 How. 299, the court found that there was power to issue the bonds, and that after they were issued and delivered to the railroad company it was too late, as against a bona fide holder, to call in question the determination of the facts which the law prescribed as the basis of the exercise of the power granted, and which the city authorities were authorized and required to determine before bonds were issued.

Probably the fullest statement of the settled doctrine of this court is found in Town of Coloma v. Eaves, 92 U.S. 484. In that case the authority to make the subscription was made, by the statute, to depend upon the result of the submission of the question to a popular vote, and its approval by a majority of the legal votes cast. But whether the statute, in these particulars, was complied with, was left to the decision of certain persons who held official relations with the municipality in whose behalf the proposed subscription was to be made. It was in reference to such a case that the court said: 'When legislative authority has been given to a municipality, or to its officers, to subscribe to the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been made in the bonds issued by them and held by a bona fide purchaser is conclusive of the fact and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal.' This doctrine was reaffirmed in Buchanan v. Litchfield, 102 U.S. 290, and in other cases, and we perceive no just ground to doubt its correct or to regard it as now open to question in this court.

But we are of opinion that the rule as thus stated does not support the position which counsel for plaintiff in error take in the present case. The adjudged cases, examined in the light of their special circumstances, show that the facts which a municipal corporation, issuing bonds in aid of the construction of a railroad, was not permitted, against a bona fide holder, to question, in face of a recital in the bonds of their existence, were those connected with or growing out of the discharge of the ordinary duties of such of its officers as were invested with authority to execute them, and which the statute conferring the power made it their duty to ascertain and determine before the bonds were issued; not merely for themselves, as the ground of their own action, in issuing the bonds, but, equally, as authentic and final evidence of their existence, for the information and action of all others dealing with them in reference to it. Such is not the case before us. Had the statutes of Ohio conferred upon a township in Delaware county authority to make a subscription to the stock of this company, upon the approval of the voters at an election previously held, then a recital by its proper officers, such as is found in the bonds in suit, would have estopped the township from proving that no election was in fact held, or that the election was not called and conducted in the mode prescribed by law; for in such case it would be clear that the law had referred to the officers of the township, not only the ascertainment, but the decision of the facts involved in the mode of exercising the power granted. But in this case, as we have seen, power in townships to subscribe did not come into existence; that is, did not exist, except where the county commissioners had not been authorized to make a subscription. Whether they had not been so authorized-that is, whether the question of subscription had or not been submitted to a county vote, or whether the county commissioners had failed for so long a time to take the sense of the people as to show that they had not, within the meaning of the law, been authorized to make a subscription-were matters with which the trustees of the township, in the discharge of their ordinary duties, had no official connection, and which the statute had not committed to their final determination. Granting that the recital in the bonds, that they were issued 'in pursuance of the provisions of the several acts of the general assembly of Ohio,' is equivalent of an express recital that the county commissioners had not been authorized by a vote of the county to subscribe to the stock of this company, and that, consequently, the power conferred upon the township was brought into existence, still it is the recital of a fact, arising out of the duties of county officers, and which the purchaser and all others must be presumed to know did not belong to the township to determine, so as to confer or create power which, under the law, did not exist.

In the view we have taken of this case, McClure v. Township of Oxford, 94 U.S. 429, is instructive. That was a case of municipal subscription to a railroad corporation. The act conferring the authority provided that it should take effect (and therefore should not be a law except) from and after its publication in a particular newspaper. Thirty days' notice of the election was required. But the election was held within 30 days from the publication in the paper named in the act. The bonds recited that they were issued in pursuance of the statute, describing it by the date of its passage, not the date of its publication in the newspaper designated. They showed upon their face that the election was held April 8, 1872. But the purchaser was held bound to know that the act was not in fact published in that newspaper until March 21, 1872; that, therefore, it did not become a law until from and after that date. He was, consequently, charged with knowledge that the election was held upon insufficient notice. The bonds were, for these reasons, declared to be not binding upon any township. The publication of the act, plainly, was not a matter with which the township trustees, as such, had any official connection. It was not made their duty to have it published. The time of publication would not necessarily appear upon the township recrods; but publication in a named newspaper was, as the face of the act showed, vital, not simply to the exercise but to the very existence of the power to subscribe. We may repeat here what was said in Anthony v. Jasper Co. 101 U.S. 697, that purchasers of municipal bonds 'are charged with notice of the laws of the state granting power to make the bonds they find on the market. This we have always held. If the power exists in the municipality the bona fide holder is protected against mere irregularities in the manner of its execution; but if there is a want of power no legal liability can be created.' So, here, Porter township is estopped by the recitals in the bonds from saying that no township election was held, or that it was not called and conducted in the particular mode required by law. But it is not estopped to show that it was without legislative authority to order the election of August 30, 1851, and to issue the bonds in suit. The question of legislative authority in a municipal corporation to issue bonds in aid of a railroad company cannot be concluded by mere recitals; but the power existing, the municipality may be estopped by recitals to prove irregularities in the exercise of that power; or, when the law prescribes conditions upon the exercise of the power granted, and commits to the officers of such municipality the determination of the question whether those conditions have been performed, the corporation will also be estopped by recitals which import such performance.

The judgment is affirmed.

Mr. Justice MATTHEWS, having been of counsel, did not sit in this case or participate in its decision.


text: Talk:Northern National Bank of Toledo Ohio v. Trustees of Porter Township/Opinion of the Court

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text:
McDonald v. Hovey

Skipwith Wilmer and J. Noble Hayes, for appellant.

''Chas. W. Hornor and Geo F. Edmunds'', for appellees.

BRADLEY, J.

title: McDonald v. Hovey


text: Talk:McDonald v. Hovey

title: Talk:McDonald v. Hovey


text:
McDonald v. Hovey/Opinion of the Court

The decree appealed from in this case was rendered on the seventeenth of April, 1878, and the appeal was not taken until the sixth of September, 1883. The 1008th section of the Revised Statutes declares that 'no judgment, decree, or order of a circuit or district court, in any civil action at law or in equity, shall be reviewed by the supreme court on writ of error or appeal, unless the writ of error is brought or the appeal is taken within two years after the entry of such judgment, decree, or order: provided, that where a party entitled to prosecute a writ of error or to take an appeal is an infant, insane person, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within two years after the judgment, decree, or order, exclusive of the term of such disability.' As more than five years elapsed after the entry of the decree in this case before the appeal was taken, of course the appeal was barred by lapse of time unless the appellant was within one of the exceptions contained in the proviso. He claims that he was within one of these exceptions. He states in his petition of appeal, and the fact is not disputed, that being sued in the city of New York upon the decree appealed from, and judgment being rendered against him, his body was taken in execution, and on the seventh of February, 1879, he was thrown into the county jail of New York, where he has ever since remained, and is now kept in close confinement. As only 10 months elapsed after the entry of the decree when the appellant was thrown into prison, and as he has been in prison ever since, he contends that two years, exclusive of the term of his imprisonment, had not expired when his appeal was taken.

This answer cannot avail the appellant if that construction be given to the statute which has almost uniformly been given to similar statutes in England and this country. The construction referred to is that some or one of the disabilities mentioned in the proviso must exist at the time the action accrues in order to prevent the statute from running; and that after it has once commenced to run, no subsequent disability will interrupt it. This was the rule adopted in the exposition of the statute of 21 Jacob, p. 1, c. 16, the English statute of limitations, in force at the time of the first settlement of most of the American colonies. It is provided by the seventh section of that statute 'that if any person entitled to bring any of the personal actions therein mentioned shall be, 'at the time of any such cause of action given or accrued,' within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, such person shall be at liberty to bring the same actions within the times limited by the statute, after his disability has terminated.' Ang. Lim c. 19. It is true that the express words of this statute refer to disabilities existing 'at the time' the cause of action accrues, and do not literally include disabilities arising afterwards. The courts, however, held that such was not only the literal, but the true and sensible, meaning of the act; and that to allow successive disabilities to protract the right to sue would, in many cases, defeat its salutary object, and keep actions alive perhaps for a hundred years or more; that the object of the statute was to put an end to litigation, and to secure peace and repose, which would be greatly interfered with, and ofter wholly subverted, if its operation were to be suspended by every subsequently-accruing disability. A very exhaustive discussion of the subject had arisen in the time of Queen Elizabeth, in the case of Stowel v. Zouch, Plow. 365, in the construction of the statute of fines, passed in 4 Hen. VII. c. 24, which gave five years to persons not parties to the fine to prosecute their right to the land; but if they were women covert, or persons within the age of 21 years, in prison, or out of the realm, or not of whole mind at the time of the fine levied, they were allowed five years to prosecute their claim after the disability should cease. In that case a person having a claim to land died three years after a fine was levied upon it without commmencing any suit, and leaving an infant heir, and it was held that the heir could not claim the benefit of his own infancy, but must commence his suit for the land within five years from the levying of the fine, because the limitation commenced to run against his ancestor, and having once commenced to run, the infancy of the heir did not stop it. The same construction was given, as already stated, to the general statute of limitations of 21 Jacob, 1, supra.

In Doe v. Jones, 4 Term R. 300, Lord KENYON said: 'I confess I never heard it doubted, till the discussion of this case, whether, when any of the statutes of limitations had begun to run, a subsequent disability would stop their running. If the disability would have such an operation on the construction of one of those statutes, it would also on the others. I am very clearly of opinion, on the words of the statute of fines, on the uniform construction of all the statutes of limitation down to the present moment (1791,) and on the generally received opinion of the profession on the subject, that this question ought not now to be disturbed. It would be mischievous to refine, and to make distinctions between the cases of voluntary and involuntary disabilities, [as was attempted in that case;] but in both cases, when the disability is once removed, the time begins to run.' To the same effect are Doe v. Jesson, 6 East, 80, and many cases in this country referred to in Ang. Lim., qua supra, and in Wood, Lim. § 251.

In a case that came to this court from Kentucky, in 1816, Chief Justice MARSHALL said: 'The counsel for the defendants in error have endeavored to maintain this opinion by a construction of the statute of limitations of Kentucky. They contend that after the statute has begun to run it stops, if the title passes to a person under any legal disability, and recommences after such disability shall be removed. This construction, in the opinion of this court, is not justified by the words of the statute. Its language does not vary essentially from the language of the statute of James, the construction of which has been well settled; and it is to be construed as that statute; and all other acts of limitation founded on it have been construed.' Walden v. Gratz's Heirs, 1 Wheat. 296. And in the subsequent case of Mercer's Lessee v. Selden, 1 How. 51, the court took the same view in a case arising in the state of Virginia, in which the right of action accrued to one Jane Page, and infant within the exception of the statute, and it was insisted that her marriage before she was 21 added to her first disability (of infancy) that of coverture. But the court held otherwise, and decided that only the period of infancy, and not that of coverture, could be added to the time allowed her for bringing the action. The same doctrine was held in Eager v. Com. 4 Mass. 182; Fitzhugh v. Anderson, 2 Hen. & M. (Va.) 306; Parsons v. McCracken, 9 Leigh, 495; Demarest v. Wynkoop, 3 Johns. Ch. 129; Bunce v. Wolcott, 2 Conn. 32.

In most of the state statutes of limitation the clauses of exception or provisos in favor of persons laboring under disabilities employ terms equivalent to those used in the English statute, expressly limiting the exception to cases of disability existing when the cause of action accrues. But this is not always the case. The statutes of New York in force prior to the Revised Statutes limited the time for bringing real actions to 25 years after seizin or possession had, and the proviso in favor of persons laboring under disabilities was in these words: 'Provided always, that no part of the time during which the plaintiff, or person making avowry or cognizance, shall have been within the age of twenty-one years, insane, feme covert, or imprisoned, shall be taken as part of the said limitation of twenty-five years.' 1 Rev. Laws, 1813, p. 185, § 2; 2 Greenl. Laws, p. 95, § 6. It will be observed that this proviso is stronger in favor of cumulative and subsequently accruing disabilities than that of the act of congress which we are now considering, yet the supreme court of New York, and subsequently this court, gave it the same construction in reference to such disabilities as had always been given to the English statute of fines and statute of limitations. In the case of Bradstreet v. Clarke, 12 Wend. 602, which was a writ of right, and was argued by the most eminent counsel of the state, it was strenuously contended that the proviso referred to, being different from that of the English statutes in not referring to disabilities existing when the cause of action accrued, a different construction ought to be given to it, and the disabilities named, though commencing subsequently, and even after the statute began to run, ought to be held to interrupt it. The court, however, did not concur in this view, but held that the coverture of the demandant occurring after the statute began to run could not be set up against its operation. Mr. Justice SUTHERLAND said: 'It is believed that the same construction has uniformly been given to this proviso in this respect as to that in relation to possessory actions, [contained in a different section of the act,] that, where the statute has once begun to run, a subsequently accruing disability will not impede or suspent it.' Although the case did not finally turn on this point, the attention given to it by counsel and the apparent unanimity of the court, then consisting of SAVAGE, C, J. and SUTHERLAND and NELSON, JJ., give to that opinion a good deal of weight.

The same question afterwards arose in this court in the case of Thorp v. Raymond, 16 How. 247. That was an action of ejectment, used in place of a writ of right, to try the title of lands in New York. The plaintiff's grandmother acquired a right of entry to the lands in 1801, but was then insane, and remained so till her death in 1822. Her only daughter and heir was a married woman, and remained such till the death of her husband in 1832. The action was not commenced until 1850. The plaintiff contended that, under the proviso referred to, the daughter's disability of coverture ought to be added to the mother's disability of insanity, and that this would save the action from the bar of the statute, whether under the limitation of 25 years or that of 20 years. But the court held that the disabilities could not be connected in this way. Mr. Justice NELSON, delivering the opinion, and having shown that the proposed cumulation was inadmissible under the third section of the act, considering the action as one of ejectment, disposed of the other view as follows: 'But it is supposed that the saving clause in the second section of this act, which prescribes a limitation of twenty-five years as a bar to a writ of right, is different, and allows cumulative disabilities; and as ejectment is a substituted remedy in the court below for the writ of right, it is claimed the defendant is bound to make out an adverse possession of twenty-five years, deducting successive or cumulative disabilities. This, however, is a mistake. The saving clause in the second section, though somewhat different in phraseology, has received the same construction in the courts of New York as that given to the third section,' citing the case of Bradstreet v. Clarke, in the decision of which the learned justice had participated.

The statute of limitations of Texas is another instance in which language is used quite different from that of the English statute. After prescribing various limitations, the eleventh section provides for disabilities as follows: 'No law of limitations, except in the cases provided for in the eighth section of this act, shall run against infants, married women, persons imprisoned, or persons of unsound mind, during the existence of their respective disabilities; and when the law of limitations did not commence to run prior to the existence of these disabilities, such persons shall have the same time allowed them after their removal that is allowed to others by this and other laws of limitations now in force.' Oldham & W. art. 1352. According to the literal sense of this section, if one disability should prevent the statute from running until another supervened, the latter would be equally effectual to interrupt it. But the supreme court of Texas, in White v. Latimer, 12 Tex. 61, held otherwise, and decided that one disability cannot be tacked onto another, but that the long-established rule in construing statutes of limitations must be applied. The court say: 'The eleventh section of the statute is not in its terms materially different from the exception contained in the statute of James, and cannot claim a different construction from that; and a departure from the rule so long and well established that it applies to the particular disability existing at the time the right of action accrued, would introduce the evil so strongly deprecated by the most eminent English and American judges, of postponing actions for the trial of rights of property to an indefinite period of time, by the shifting of disabilities from infancy to coverture, and again from coverture to infancy-an evil destructive of the best interests of society, and forbidden by the most sound and imperious policy of the age.'

The authority of these cases goes far to decide the one before us. The proviso in the New York statute certainly was more general, in its terms, in describing the disabilities which would stay the operation of the statutes,-described them more independently of the time when the cause of action accrued,-than the act of congress under consideration; and the courts, in giving it the construction they did, seemed to be largely influenced by the established interpretation given to similar statutes in pari materia, without having, in the statute, construed any express words to require such a construction. But in the case before us, the fair meaning of the words leads to the same result. The language is as follows: 'No judgment, decree, or order * *  * shall be reviewed in the supreme court, *  *  * unless the writ of error is brought or the appeal is taken within two years after the entry of such judgment, decree, or order: provided, that where a party entitled to prosecute a writ of error or to take an appeal is an infant, insane person, or imprisoned, such writ of error may be prosecuted or such an appeal may be taken within two years after the judgment, decree, or order, exclusive of the term of such disability.' 'Is an infant,' when? 'Is an insane person, or imprisoned,' when? Evidently, when the judgment, decree, or order is entered. That is the point of time to which the attention is directed. The evident meaning is that if the party is an infant, insane, or in prison, when the judgment or decree is entered, and therefore when he or she becomes entitled to the writ of error or appeal, the time to take it is extended. In all the old statutes this was expressed in some form or other; this was their settled meaning. It will also be deemed to be the meaning of this statute unless its language clearly calls for a different meaning. But, as seen, it does not.

Section 1008 of the Revised Statutes was taken directly from the 'act to further the administration of justice,' approved June 1, 1872, and is a mere transcript from the second section of that act. 17 St. 196. But this was a revision of the twenty-second section of the judiciary act of 1789, and if we turn back to that section we shall find that, with regard to the point under consideration, its language was, in effect, substantially the same as that of the present law. It was as follows: 'Writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of; or, in case the person entitled to such writ of error be an infant, feme covert, non compose mentis, or imprisoned, then within five years, as aforesaid, exclusive of the time of such disability.' 'Be an infant,' ''when? 'Be a feme covert, non compos, or imprisoned,' when? The same answer must be given as before, namely, when he or she becomes entitled; i. e.'', when the judgment or decree is entered.

The phraseology of the act of 1872 and of the 1008th section of the Revised Statutes is so nearly identical with that of the twenty-second section of the act of 1789, in reference to the point under consideration, that we must presume they were intended to have the same construction, and the act of 1789 contains no language which requires that it should have a different construction from that which had long been established in reference to all the statutes of limitation then known, whether in the mother country or in this. On the contrary, as we have seen, the terms of the act of 1789 fairly call for the same construction which had for centuries prevailed in reference to those statutes.

It is a received canon of construction, acquiesced in by this court, 'that where English statutes, such, for instance, as the statute of frauds and the statutes of limitations, have been adopted into our own legislation, the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts, or has been received with all the weight of authority.' Pennock v. Dialogue, 2 Pet. 18; Smith, St. & Const. Law, § 634; Sedg. St. & Const. Law, 363. And even where inadvertent changes have been made by incorporation different statutes together, it has been held not to change their original construction. Thus, in New Jersy, where several English statutes had been consolidated, a proviso in one of them, broad enough in its terms to affect the whole consolidated law, was held to affect only those sections with which it had been originally connected. Chief Justice GREEN said: 'Where two or more statutes, whose construction has been long settled, are consolidated into one, without any change of phraseology, the same construction ought to be put upon the consolidated act as was given to the original statutes. A different construction ought not to be adopted if thereby the policy of the act is subverted or its material provisions defeated.' In re Murphy, 3 Zab. 192.

So upon a revision of statutes a different interpretation is not to be given to them without some substantial change of phraseology-some change other than what may have been necessary to abbreviate the form of the law. Sedg. Const. St. 365. As said by the New York court for the correction of errors, in Taylor v. Delancy, 2 Caines, Cas. 150: 'Where the law antecedently to the revision was settled, either by clear expressions in the statutes or adjudications on them, the mere change of phraselogy shall not be deemed or construed a change of the law unless such phraseology evidently purports an intention in the legislature to work a change.' And see Yates' Case, 4 Johns. 359; Theriat v. Hart, 2 Hill, 380; Parmelee v. Thompson, 7 Hill, 77; Goodell v. Jackson, 20 Johns. 722; Croswell v. Crane, 7 Barb. 191. 'The construction will not be changed by such alterations as are merely designed to render the provisions more precise.' Mooers v. Bunker, 9 Fost. (N. H.) 421. So the supreme court of Alabama has held that the legislature of that state, in adopting the Code, must be presumed to have known the judicial construction which had been placed on the former statutes; and therefore the re-enactment in the Code of provisions substantially the same as those contained in a former statute is a legislative adoption of their known judicial construction. Duramus v. Harrison, 26 Ala. 326. 'A change of phraseology in a revision will not be regarded as altering the law where it had been well settled by plain language in the statutes, or by judicial construction thereof, unless it is clear that such was the intent.' Sedg. Const. (2d Ed.) 229, note. Of course a change of phraseology which necessitates a change of construction will be deemed as intended to make a change in the law. Young v. Dake, 5 N. Y. 463.

In view of these authorities and of the principles involved in them, and from a careful consideration of the language of the law itself, we are satisfied that it was not the intention of congress either in the twenty-second section of the act of 1789, or in the second section of the act of 1872, or in the 1008th section of the Revised Statutes, to change the rule which had always, from the time of Henry VII., been applied to statutes of limitation, namely, the rule that no disability will postpone the operation of the statute unless it exists when the cause of action accrues; and that when the statute begins to run no subsequent disability will interrupt it.

This conclusion disposes of the case. As the appellant was free from any disability for several months after the entry of the decree appealed from, the statute commenced to run at that time, and therefore the time for taking the appeal expired several years before it was actually taken.

The appeal is therefore dismissed.

title: McDonald v. Hovey/Opinion of the Court


text: Talk:McDonald v. Hovey/Opinion of the Court


text:
Waples v. United States

C. W. Horner and L. Madison Day, for appellant.

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

FIELD, J.

title: Waples v. United States


text: Talk:Waples v. United States

title: Talk:Waples v. United States


text:
Waples v. United States/Opinion of the Court

In March, 1865, the plaintiff purchased for the sum of $7,400 certain real property in New Orleans at a sale upon a decree rendered by the district court of the United States, in proceedings for its confiscation, under the act of July 17, 1862, and subsequently obtained a deed of the property from the marshal. The proceedings were instituted in the usual form by a libel of information filed on the seventh of August, 1862, by the district attorney of the Eastern district of Louisiana, on behalf of the United States, against 10 lots of ground alleged to be the property of Charles M. Conrad. The libel sets forth that the marshal of the district, under authority from the district attorney, given pursuant to instructions of the attorney general, had seized the lots of ground, which are fully described, as forfeited to the United States; that they were owned by Conrad then, and on the seventeenth of July, 1862, and previously; that after that date he had acted as an officer of the army or navy of the rebels in arms against the government of the United States, or as a member of congress, or as a judge of a court, or as a cabinet officer, or as a foreign minister, or as a commissioner, or as a consul of the so-called confederate states. Indeed, many other official positions he is charged in the alternative with holding, the district attorney evidently regarding him as a person of so much consequence that he must have been called to some official position by the confederate government, in which he gave aid and comfort to the enemies of the United States, and therefore his right, title, and estate in the property was forfeited, and ought to be condemned. Publication of monition followed, and no one appearing to answer, judgment by default was entered, declaring that the lots of land, the property of Conrad, were condemned as forfeited to the United States, and a decree for their sale was entered.

In the writ issued to the marshal, and in his deed of sale, the lots are described as the property of Conrad. Under the act of congress no other interest than that of Conrad was forfeited, and no other interest was sold. It was for his alleged offenses that the libel was filed, and the forfeiture sought. It was undoubtedly in the power of Congress to provide for the confiscation of the entire property as being within the enemy's country, without restricting it to the estate of the defendant, but congress did not see fit to so enact; and as we said in speaking of the proceedings in this case: 'The court cannot enlarge the operations of the stringent provisions of the statute. The plaintiff had notice of the character and legal effect of the decree of condemnation when he purchased, and is therefore presumed to have known that if the alleged offender possessed no estate in the premises at the time of their seizure, nothing passed to the United States by the decree, or to him by his purchase.' Burbank v. Conrad, 96 U.S. 291. This would be true with reference to any layman who might have been the purchaser, but with special force may it be applied to the plaintiff, who, as the district attorney, directed the seizure, and conducted the proceedings to the decree. It turned out in other litigation that at the time of the seizure Conrad possessed no estate in the premises. He had transferred the property by a public act of sale before a notary on the thirty-first of May, 1862, before the confiscation statute was passed, which applied only to the property of persons thereafter guilty of acts of disloyalty and treason. In express terms it withheld from its application the property of persons who before its passage may have offended in those respects. Conrad's power of disposition when he made his sale to his sons was not impaired by anything he may previously have done. This was expressly adjudged by this court in the case of Conrad, the son, against the plaintiff. 96 U.S. 279.

But because of the general language used in the description of the property in the libel of information and in the deed of the marshal, it is contended that something more than the estate of the offender, Conrad, was warranted by the United States to the purchaser, and the warranty having failed, that he is entitled to a return of the purchase-money; but this position is without even plausible foundation. As already stated, the plaintiff was presumed to know the law on the subject, and that by his purchase under the decree he could only acquire such an estate as the alleged offender possessed to hold during the offender's life, and that if the offender had no estate none was forfeited to the United States, or sold under the decree of the court. So no false assurance could have been made to the purchaser which could be suggested as a possible ground for the return of the money; nor could there have been any mistake of fact which would be recognized as a ground for relief even in equity, for the fact suggested as having been misunderstood was declared by the law. Besides, the title to property sold under judicial process is not warranted by the party obtaining the judgment of the court. Whatever title the law gives, the purchaser takes, no more and no less; and he must govern himself accordingly. Any different rule prevailing on this subject in Louisiana or any other state by statute cannot change the position of the United States with respect to judicial sales in proceedings instituted by them. Nor is this position at all affected by the doctrine that upon the reversal of a judgment, under which a sale has been had, the purchaser is entitled to a return of his money. There has been no reversal of the judgment in the confiscation proceedings against Conrad. On the contrary it has been affirmed.

Judgment affirmed.


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


text:
Mitchell v. Clark

This is a writ of error to the supreme court of Missouri. The plaintiff below sued the plaintiffs in error for rent due on a lease of two storehouses in St. Louis for the months of August, September, and October, 1862, at the rate of $583.33 per month. The defendants answered with four pleas, as follows:

'And now come said defendants, by leave of court, and for amended answer to plaintiff's petition, admit the execution of said lease and the occupancy of said premises under and by virtue of the same as alleged in said petition; and defendants say that after the making of said lease, to-wit, on or about the first day of May, A. D. 1861, certain evil-disposed and wicked persons in the state of Missouri, and in other of the United States, did raise an insurrection and rebellion against the lawful government of the United States, and did seek by force and arms to overthrow said government, and for this purpose did raise a alrge force of armed men, and did incite and carry on a civil war with said government of the United States; that during all the year 1862, and for a long time prior and subsequent thereto, civil war prevailed throughout the state of Missouri, where said premises were located, and where defendants and plaintiff resided; that in order to suppress said insurrection and rebellion, and maintain a large force of armed men, and did of the United States, said government was compelled to raise, and did raise, equip, and put into the field in said state of Missouri, where said war was raging, a large army, and did place said state of Missouri and the city of St. Louis, where said premises were located and defendants resided, under military law; and the said city and county of St. Louis were under military law, and under the military control of J. M. Schofield, a major-general of the army of the United States, as the military commander of the district of Missouri, which embraced the entire state of Missouri aforesaid; that by reason of said civil war the courts of said state of Missouri were suspended, and unable to perform their ordinary functions and administer the law of the land, except as they were protected and allowed to do so by the said military authorities thus in control of said state; that in order to prosecute said civil war on behalf of the government of the United States, and put down and suppress said insurrection and rebellion, and overpower the insurgents and rebels, and protect the loyal citizens of the said state of Missouri, it became and was necessary for the military authorities in control of said state of Missouri, as aforesaid, to take, seize, and appropriate to the public use the private property of the citizens of Missouri; and the said military authorities who were in lawful command and control in said state, by order of said Schofield, then the lawful commanding general in said state, did seize and appropriate to the public use in suppressing said rebellion the private property of divers citizens of said state, and among other things did levy upon, seize, and appropriate to such public use the property, credits, and effects of said plaintiff, especially the rents due and owing from defendants under and by virtue of said lease of defendants in their hands for said months of August, September, and October, 1862; and the said defendants were compelled by the overpowering military force then in lawful control of said state to pay, and did pay long before the commencement of this suit, to-wit, on or about the twenty-fourth day of November, 1862, the said rents for said months of August, September, and October, 1862, and every part thereof, to said military authorities, for and on account and as the property and effects of said plaintiff so seized and appropriated to the public use as aforesaid; that said seizure and appropriation were necessary means for carrying on said war for the suppression of said insurrection and rebellion, and for the defense and protection of the loyal citizens of Missouri. Wherefore defendants say that plaintiff ought not to have or maintain his aforesaid action against them, and they pray judgment, etc.

'And for a further defense defendants say that the said rents reserved in said lease, and due and owing for said months of August, September, and October, 1862, were seized in the hands of defendants, and appropriated as the property of plaintiff for public use in the city of St. Louis, while said city was under military law, under the authority, or color of authority, exercised by said Gen. Schofield, who was then and there duly vested with the military command of said city by the president of the United States and under his authority, and said payment was made by defendants for and on account of plaintiff, as aforesaid, under said authority; and defendants plead and set up as a defense to this action the act of congress entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases,' approved March 3, 1863, and say that by reason thereof, and of the payment aforesaid, plaintiff ought not to have and to maintain this action, and they pray judgment, etc.

'And for a further defense, defendants say that they paid the said rent for and on account of said plaintiff, in the manner and for the purposes in their first plea hereinbefore stated, after the first day of January, 1861, by and in pursuance of orders received by them from the said Gen. J. M. Schofield, who was vested with military authority by the said government of the United States to make said order, and to seize and to apply to the public use the said property and effects and credits of said plaintiff; and defendants plead in bar of said action the fourth section of article eleven of the constitution of the state of Missouri, and pray judgment, etc.

'And for a further defense to said action, defendants say that the cause of action in plaintiff's petition alleged, if any such does or ever did exist, arose out of certain acts done,-that is to say, out of or from an alleged failure or omission to pay the rent reserved in said lease for the months of August, September, and October, A. D. 1862, to the said plaintiff, and from a payment thereof made for and on account of plaintiff by defendants to the provostmarshal of said district of Missouri, for the public use, under and by virtue of the order and command of Gen. J. M. Schofield, who was then in military command of the military district of Missouri, which embraced the state of Missouri; that said payment was omitted to be made to the plaintiff, and was in fact made for and on account of the plaintiff, for the public use as aforesaid, as a necessary means of carrying on the military operations of the government of the United States against the insurgents, who were then seeking to overthrow said government in said state of Missouri, by virtue or under color of authority derived from and exercised under the president of the United States; and said cause of action, if any such there be or ever was, arose more than two years before the commencement of this action, and said action was commenced more than two years after the passage of an act by the congress of the United States entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases,' approved March 3, 1863.

'And defendants set up and plead the limitations contained in said statute in bar of said actions, and pray judgment.'

To these defenses the plaintiff demurred, and the demurrer was sustained in the court of original jurisdiction, and in the St. Louis court of appeals, as to the first three pleas, and overruled as to the fourth. On appeal to the supreme court, however, the demurrer was sustained as to all the pleas, and judgment being rendered on that ruling for plaintiff in the court below and affirmed in the supreme court, it is to this judgment the present writ of error is directed.

''Geo. P. Strong'', for plaintiff in error.

''Geo. P. Edmunds'', for defendant in error.

MILLER, J.

title: Mitchell v. Clark


text: Talk:Mitchell v. Clark

title: Talk:Mitchell v. Clark


text:
Mitchell v. Clark/Opinion of the Court

The first of these defenses is intended to assert the validity of the military order by which defendants under compulsion of that order paid the rent which as tenants of Clark they then owed to him, into the military chest of Gen. Schofield, and that said order being lawful and valid is a full protection to them and a bar to this action. We shall not undertake to decide in this case whether Gen. Schofield had such authority as would make that payment a discharge of the debt or not.

The third plea, conceding that the order of Gen. Schofield may not of itself be a sufficient defense to the action, invokes the aid of the fourth section of article 11 of the constitution of the state of Missouri as making the facts set out in the first plea a good defense. The language of this section is as follows: 'No person shall be prosecuted in any civil action or criminal proceeding for or on account of any act by him done, performed, or executed after the first day of January, 1861, by virtue of military authority vested in him by the government of the United States or that of this state to do such act, or in pursuance of orders received by him from any person vested with such authority; and if any action or proceeding shall heretofore have been or shall hereafter be instituted against any person for the doing of any such act, the defendant may plead this section in bar thereof.' This constitutional provision was adopted in 1865, and was clearly intended to protect the military officers or those acting under them from liability, civil or criminal, for acts done under their orders. Whether it covers the present case or not is not a question within our province to decide. The plea is made in a state court and sets up a defense under the state law, and however much the party may be aggrieved by that court's decision he in that plea sets up an immunity under a state law and not under the law of the United States. Of such matter this court has no jurisdiction, and we consider it no further.

The second and fourth pleas both set up the act of March 3, 1863, (12 St. 755,) as a defense; the second plea relying upon the fourth section of the act as a full defense to any suit at all in such case as the present, and the fourth plea setting up the specific defense of the statute of limitation found in the seventh section of that act. The fourth section is as follows: 'That any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any such seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress, and such defense may be made by the special plea or under the general issue.' And the seventh section declares 'that no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to de done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the president of the United States, or by or under any act of congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to have been done: provided, that in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act.' The act of May 11, 1866, to amend this act, (14 St. 46,) by its first section declares that the benefit of this defense shall extend to any acts done or omitted to be done during said rebellion by any officer or person, under and by virtue of any order, Written or verbal, general or special, issued by the president or secretary of war, or by any military officer of the United States holding command of the department, district, or place within which such acts * *  * were done or omitted to be done, either by the person or officer to whom the order was addressed, or for whom it was intended.' The act of 1863 also makes elaborate provision for the removal of this class of cases, including any act done under color of authority derived from the president, from a state court into a federal court, which provision is also made more effectual by the act of 1866.

It is not at all difficult to discover the purpose of all this legislation. Throughout a large part of the theater of the civil war the officers of the army, as well as many civil officers, were engaged in the discharge of very delicate duties among a class of people who, while asserting themselves to be citizens of the United States, were intensely hostile to the government, and were ready and anxious at all times, though professing to be non-combatants, to render every aid in their power to those engaged in active efforts to overthrow the government and destroy the Union. For this state of things congress had provided no adequate legislation, no law by which the powers of these officers were so enlarged as to enable them to deal with this class of persons dwelling in the midst of those who were loyal to the government. Some statutes were passed after delay of a general character, but it was seen that many acts had probably been done by these officers, in defense of the life of the nation, for which no authority of law could be found, though the purpose was good and the act a necessity. For most of these acts there was constitutional power in congress to have authorized them, if it had acted in the matter in advance. It is possible that in a few cases, for acts performed in haste and in the presence of an overpowering emergency, there was no constitutional power anywhere to make them good. But who was to determine this question; and for service so rendered to the government by its own officers, and by men acting under the compulsory power of these officers, could congress grant no relief? That an act passed after the event, which, in effect, ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as congress could have conferred such authority before, admits of no reasonable doubt. These are ordinary acts of indemnity passed by all governments when the occasion requires it.

In the legislation to which we have referred in the act of 1863 and the amendatory act of 1866, congress seems to have well considered this subject. By the fourth section of the act of 1863 it undoubtedly intended to afford an absolute defense, as far as it had power to do so, in this class of cases. By sections 5 and 6 it was enacted that the person sued for any of this class if acts, performed or omitted under orders of officers of the government, even when there was only color of authority, could, instead of having his case tried in a state court, where both court and jury might be prejudiced against him, remove his case into a court of the United States for trial. That this act is constitutional, so far as it authorizes this removal, was settled in the case of The Mayor v.Cooper, 6 Wall. 247.

The defendant, however, for some reason did not attempt to remove this case into the circuit court of the United States, probably because the supreme court of the state had decided in the case of State v. Gatzweiler, 49 Mo. 17, that the limitation clause of the act of congress was valid, and was binding on the state court. The third measure of relief which those statute provided for said case was this statute of limitations, found in the seventh section relief which those statutes provided of the right of action, like the right of removal, did not depend, by the terms of the statute, on the validity of the authority set up by the party. In one case it is obvious that that question must be inquired into after the removal. In the other, if the action had not been brought within two years, it was immaterial; for the plaintiff could not recover, however void the authority under which defendant acted. Had congress power to pass such a law? The suit being one which, under the act of congress, could be removed into the courts of the United States, congress could certainly prescribe for it the law of limitations for those courts. If for such actions in those courts, why not in all courts? Otherwise there would be two rules of limitation of actions in different courts holding pleas of the same cause.

But there are other considerations which lead to the conclusion that congress must have the right to prescribe the rule of limitations for all courts in this class of cases. The act complained of is done for the benefit of the government by one of its officers, or by his imperative orders, which could not be resisted. If done under a necessity or a mistake, the government should not see him suffer. In such a case as the present, where the money collected went into the military chest, and was either turned over to the treasury or used to pay the military expenses of the United States, the government is bound in equity, if not legally, to repay the defendant, if judgment goes against him, what it received, with interest and costs. It has a right to say in such cases that the suit, which is to establish this liability, must be brought within reasonable time in whatever court it is brought, and to determine what is that reasonable time. The government which thus exposes its officers and others, acting under its compulsory exercise of power, to be sued, while not denying redress for the illegal exercise of such power, must have the authority to require that suits brought for such redress shall be commenced within reasonable time. The question in all such cases is one that arises under the constitution and laws of the United States, because the act questioned is one done or omitted under color of authority claimed to be derived from the government, and therefore involves the consideration whether such authority did in fact, or could in law, exist. It is one, consequently, that falls within the constitutional jurisdiction of the judicial power of the United States. Hence it follows that congress might vest that jurisdiction exclusively in the courts of the United States, and might regulate all the incidents of suits brought in any jurisdiction authorized to entertain them. It is upon this principle that the case of Arnson v. Murphy, 109 U.S. 238, [S.C.. 3 SUP. CT. REP. 184,] was decided. The question there was whether the statute of limitations of the state or of congress should govern, the suit having been brought to recover for duties illegally assessed. And though the action was one properly brought originally in the state court, and which might have been tried there, it was held that as the money collected by the collector had been paid into the treasury, and the United States was responsible for the judgment which might be recovered against him, and congress having also modified the right of action which plaintiff had at common law, the provisions of the act in regard to time of commencing the action governed the case, and that they were necessarily exclusive.

The supreme court of Missouri, in the case of State v. Gatzweiler, 49 Mo. 17, held that the seventh section of the act of 1863 is not only valid, but is binding on the state courts. Quoting from the case of Clark v. Dick, 1 Dill. 15, it concurs with the circuit court that if congress has the right to determine in what courts such questions must be tried, it must necessarily have the power to regulate the remedy, including the right to prescribe the time within which the suit must be brought. That court further cites from the same opinion with approval, as follows: 'Nor is the objection sound that in such cases the action, if tried in the state courts, will be subject to the laws of limitations prescribed by the states, while in the federal courts a different rule would prevail. For the act of congress by its terms applies to all cases of the character described in the statute, and we see no reason to limit its application to the federal courts. If congress has a right to legislate on this subject, it has the right to make that legislation the law of all courts into which such a case may come, and we think they have done this in the statute under consideration.' That a similar statute in regard to suits by or against an assignee in bankruptcy governs the state courts, see Jenkins v. The Bank, 106 U.S. 571, [S.C.. 2 SUP. CT. REP. 1,] and Jenkins v. Loewenthal, 3 SUP. CT. REP. 638. It is no answer to this to say that it interferes with the validity of contracts, for no provision of the constitution prohibits congress from doing this, as it does the states; and where the question of the power of congress arises, as in the legal-tender cases, and in bankruptcy cases, it does not depend upon the incidental effect of its exercise on contracts, but on the existence of the power itself. In regard to the states, which are expressly forbidden to impair by legislation the obligation of contracts, it has been repeatedly held that a statute of limitation which reduces materially the time within which suit may be commenced, though passed after the contract was made, is not void if a reasonable time is left for the enforcement of the contract by suit before the statute bars that right. Such is the case before us, for the statute leaves two years after its passage, and two years after cause of action accrued, within which suit could be brought.

It is said that the plea does not bring the case within the provisions of the act of congress, because this is an action to recover of the defendant the rents which are due from him to the plaintiff on a contract in writing, and that the trespass committed on the defendant by order of Gen. Schofield is no answer to plaintiff's right under the contract. But we are of opinion that both the language and the spirit of the statute embrace the present case. The plea makes it plain that it was the purpose of the Schofield order to seize the debt due from defendant to plaintiff, to confiscate it for military purposes. The sum enforced from Mitchell was the precise sum due to Clark for those rents. It was to answer Clark's obligation or default the order was made and enforced against Mitchell. He could not help himself. It could as well be said that the garnishee in attachment is not protected when paying under the order of the court, because there was error in the proceeding against his creditor. In all the confiscation of debts in the cases arises out of the late rebellion the same thing was done by the courts that was done here by the military power, namely, a debt due by a debtor, who was present, was seized and paid over to the United States. Can it be held that this was no proceeding against the creditor? It cannot be denied that such a procedure, if well conducted, is a good defense. It was the purpose of this statute to make it a defense here, though done without authority, if the creditor's right was not asserted by suit within two years. The language of the statute is that no suit shall be maintained unless brought within two years, for any wrongs done or committed, or act omitted to be done, by virtue or under color of authority derived from or exercised by or under the president. The act done here was the payment, under summary confiscation, of the debt due Clark to the military officer. The act omitted was the omission by Mitchell, during all these years, under that order, to pay to Clark. The two-years statute was intended to cover the act done by Mitchell in paying according to the order of Schofield, and the omission in refusing to pay to Clark.

The case of Harrison v. Myer, 92 U.S. 111, was a case where the rent due under a lease from an absconding malcontent was seized by a military order. This court held that the lessor could not afterwards insist on the contract. His property was seized, says the court, and the tenant was no longer responsible to him, who could no longer secure him possession, and as the lessee was obliged to render obedience to paramount authority, it was entirely competent for him to enter into a new contract to protect his interest.

It is said, however, that the supreme court of Missouri held the plea to be bad because it did not set out a copy of the order of Gen. Schofield on which the defense is founded, either in hoec verba or in substance, and that this, not being a question of federal law, is sufficient to sustain the judgment of that court. But there are several sufficient answers to this: (1) The opinion of the supreme court, while mentioning this objection en passant, does not decide that it is of itself sufficient to invalidate the plea. (2) It does proceed in a lengthy discussion of the plea on its merits, and rests its judgment on the ground that congress had no power to pass the statute of limitations in question. (3) The question, whether a plea sets up a sufficient defense when the defense relied on arises under an act of congress, does present, and that necessarily, a question of federal law; for the question is, and must be, does the plea state facts which, under the act of congress, constitute a good defense? (4) In this particular matter congress made even the manner of pleading the defense a question of federal law by the provisions of the statutes on this subject.

By section 4 of the act of 1863, (12 St. 756,) it is enacted that the defense which it affords may be made by special plea, or under the general issue; and by section 1 of the act of 1866, (14 St. 46,) that the order which shall be a sufficient defense may be written or verbal, general or special. These provisions furnish the rules by which the manner of setting up the defense is to be governed, and they leave no doubt in our mind that the liberality which they intended to prescribe in the matter requires that the present plea of the statute of limitations, being good in substance, is sufficient in form of statement. If the order was verbal, if it was general, if it could be given in evidence under the general issue, it is sufficiently set out in this plea as an order of Gen. Schofield, in command of that military department, under which defendant was compelled to pay to that officer's subordinate the rent he owed to plaintiff.

In the case of Bean v. Beckwith, 18 Wall. 510, the defendants did not rely upon the statute of limitations of 1863, but pleaded as a special defense that one of them was a provost-marshal, and the other acted under his orders; and that they both acted under the authority and by the order of Abraham Lincoln, president of the United States. But whether there was in that case a special order of the president to the provost-marshal, or whether he assumed to arrest and imprison the plaintiff under some proclamation or general order, did not appear by the plea, and as it was a case of arrest and imprisonment, this court held that the authority of the defendants to make it should be specifically set forth. That is not the present case, for the defendant here did as he was compelled to by others, and probably never saw the order under which he was forced to pay the money, and has not now within his control the order under which the officer acted. He has, basides, given with sufficient clearness the substance of Gen. Schofield's order to enable plaintiff to deny its existence, if he can, or to make any other reply appropriate to the merits of the case, and if the order was verbal no better statement of it can be exacted.

We concur in the opinion of the lower courts in Missouri that the plea of the statute of limitations is a good plea, and is sufficiently set out; and for the error in sustaining the demurrer to this plea, the judgment of the supreme court of Missouri is reversed, and the case remanded to that court for further proceedings, not inconsistent with this opinion.

title: Mitchell v. Clark/Opinion of the Court


text: Talk:Mitchell v. Clark/Opinion of the Court


text:
The Ku-Klux Cases

[Syllabus from pages 651-652 intentionally omitted]

Henry B. Tompkins, for petitioners.

''Sol. Gen. Phillips'', for respondent.

MILLER, J.

title: The Ku-Klux Cases


text: Talk:The Ku-Klux Cases

title: Talk:The Ku-Klux Cases