text:
Wabash St. Railway Company v. Ham

This was an appeal from a decree in equity, declaring certain bonds issued by the Toledo & Wabash Railway Company to be a lien upon property formerly owned by that company, and since transferred by it to the Toledo, Wabash & Western Railway Company, a corporation created by its consolidation with three other railroad corporations. 11 Biss. 510; S.C.. 15 Fed. Rep. 763. The material facts appearing by the record were as follows:

The Toledo & Wabash Railway Company, a corporation organized under the laws of the states of Ohio and Indiana, owning a railroad extending from Toledo in Ohio to Wabash in Indiana,-its property in Ohio being subject to a first mortgage for $900,000, and a second mortgage for $1,000,000, and its property in Indiana subject to a first mortgage for $2,500,000, and a second mortgage for $1,500,000,-on November 2, 1862, executed and issued for value bonds to the amount of $600,000, styled 'Equipment Bonds,' payable in New York on May 1, 1883, with coupons attached for semi-annual interest, at the yearly rate of 7 per cent.; and convertible at the option of the holder, at any time within five years, into common stock of the company at par. The company paid interest on those bonds to May 1, 1865.

On May 29, 1865, no lien of any kind then existing in favor of the equipment bonds, the Toledo & Wabash Railway Company, and three railroad corporations incorporated by the states of Indiana and Illinois, whose roads formed a continuous line from Toledo to the Mississippi river, entered into an agreement to consolidate their railroads, property, and capital stock, and to become one corporation under the name of the Toledo, Wabash & Western Railway Company, with a capital stock of $15,000,000, 'upon the basis and conditions hereinafter to be specified,' the material parts of which were as follows:

'The Toledo & Wabash Railway Company enters into said consolidation on the following basis, viz.: Its capital is $10,000,000, composed as follows first mortgage bonds, $3,400,000; second mortgage bonds, $2,500,000; convertible

The basis on which each of the three other corporations 'enters into said consolidation' was then set forth in like manner, by which the capital of the three together appeared to be $8,486,000, composed of mortgage bonds, $5,800,000, and stock, $2,686,000; and one of those corporations assigned to the consolidated company certain mortgage bonds, and agreed to pay to it in cash the sum of $780,300, required to place its road in equal condition with the Toledo & Wabash Railway.

'It is further agreed that the bonds and other debts hereinabove specified, in the manner and to the extent specified, and not otherwise provided for in this agreement, shall, as to the principal and interest thereof, as the same shall respectively fall due, be protected by the said consolidated company, according to the true meaning and effect of the instruments or bonds by which such indebtedness of the several consolidating companies may be evidenced.' 'The directors shall have power to issue any other and further bonds of said corporation to such an amount that the indebtedness of the consolidated company at any time shall not exceed the amount of the capital stock authorized by this agreement, and they may secure the bonds so issued by mortgage or other lien on the property of the consolidated company, or any specified part thereof.'

The agreement of consolidation was ratified by the directors and stockholders of all the companies, and the stockholders of the old companies became stockholders in the new one; and this company came into possession of all the railroads and property of the four old companies, and received and distributed the earnings.

On February 1, 1867, the consolidated company executed to trustees a mortgage of all its railroads, property, and franchises, to secure bonds to be issued by it, to the amount of $15,000,000, payable in 40 years, with interest at the yearly rate of 7 per cent. and convertible at the option of the holders, at any time within 10 years, into common stock of the company at par. The mortgage recited the consolidation, and also contained the following recitals:

'Whereas, at the time of such consolidation, the property of said various companies was subject to certain bonded debts, and the mortgages created by said several companies, or by other railroad corporations which, at the time of the creation of said debts and mortgages, were the owners of the property so consolidated; and whereas, all the bonded debt of said company, party of the first part, including that secured by said mortgages, as well as that not secured by any mortgage, now amounts, in the aggregate, to the sum of $13,300,000, besides interest; and whereas, said bonded debt, as it now exists, is represented and made up as follows, viz.'

Then followed a statement of the various classes of mortgage bonds, above mentioned, amounting in all to $11,700,000; the equipment bonds, $600,000; and bonds issued by the consolidated company, due April 1, 1871, $1,000,000; and the last two classes described as not secured by any mortgage.

'And whereas, it has been deemed for the interest of the said party of the first part, as well as for the benefit of the holders of all said various classes of bonds, that the whole of the same should be consolidated into one and the same mortgage debt, upon equitable principles; and whereas, the increasing freight business of the road of the party of the first part requires additional equipments to do the same; and whereas, it has been deemed expedient for the preservation of the bridges on the line of said road that the same should be covered, and that additional depot accommodations should be obtained, and that the road through its entire length should be fenced; and whereas, the expenses to be incurred for the above should be provid d for by the creation of new capital; and whereas, for the purposes aforesaid, and for the objects hereir stated, the said company, party of the first part, has resolved to make and issue its bonds to the extent of $15,000,000, and to secure the payment of the same by a mortgage upon its entire property; and that of the amount of said bonds to be made and issued thereon should be retained $13,300,000 such terms as the directors of said company may from time to time prescribe, a like amount of the bonds of the various companies herein above enumerated, and described, and representing the aforesaid bonded debt, and that the balance of said bonds, to-wit, $1,700,000 thereof, should be used to provide the said additional equipment and other improvements hereinabove mentioned and for such additional purposes as the said directors may deem advisable.'

Bonds to the amount of $2,700,000 only were issued under that mortgage; $1,700,000 for money borrowed, and $1,000,000 to retire the bonds of the consolidated company that became due April 1, 1871. The consolidated company paid the interest on the equipment bonds until November 1, 1874, after which no payment was made of interest thereon.

On April 1, 1873, the consolidated company executed to the trustees under the mortgage of February 1, 1867, and in order 'to give assurance to all persons whom it may in any wise concern that the said reserved bonds shall not, nor shall any or either of them, be used for any other purpose than the retiring of the said funded debt in some part thereof,' a supplemental agreement, by which it covenanted with the trustees, and with all such parties, that it would not 'make or issue, or attempt to make or issue, any of the remaining $12,300,000 aforesaid bonds secured by the said indenture of mortgage, except for the purpose of, and subsequent to or simultaneously with, the retiring of an equal amount of the balance remaining of the said funded debt.'

On February 1, 1873, two months before the execution of the agreement of further assurance, the consolidated company made another mortgage to secure other bonds to be issued by the company to the amount of $5,000,000, payable in gold. Default having been made in the payment of interest on bonds so issued, proceedings for the foreclosure of that mortgage were instituted, and a receiver appointed on February 22, 1875, and a decree was afterwards entered for the sale of the railroad, franchises, and other property of the company, subject to the liens of all earlier mortgages, and without prejudice to any claim that might be made by the holders of the equipment bonds. Under that decree the property was sold, and conveyed to the purchasers, who afterwards became the Wabash, St. Louis & Pacific Railway Company, the appellant in this case. None of the equipment bonds were ever exchanged for bonds under the mortgage of 1867, nor did any holders of equipment bonds demand an exchange until after May 1, 1875.

The statute of Ohio of April 10, 1856, in force at the time of the issue of the equipment bonds and of the consolidation in question, by section 1, made it lawful for any railroad company in Ohio to consolidate its capital stock with the capital stock of any railroad in an adjoining state, whenever their roads united so as to form a continuous line; by section 2, provided that the consolidation should be made by agreement of the directors of each company, 'prescribing the terms and conditions thereof,' and that such agreement, when ratified by the stockholders, should 'be deemed and taken to be the agreement and act of consolidation of said companies;' and also contained the following provisions:

'Sec. 3. Upon the making and perfecting the agreement and act, as provided in the preceding section, and filing the same, or a copy, with the secretary of state, the several corporations, parties thereto, shall be deemed and taken to be one corporation, possessing within this state all the rights, privileges, and franchises, and subj ct to all the restrictions, disabilities, and duties of such corporation of this state so consolidated.'

'Sec. 5. Upon the election of the first board of directors of the corporation created by said agreement of consolidation and by the provisions of this act,all and singular the rights, privileges, and franchises of each of said corporations, parties to the same, and all the property, real, personal, and mixed, and debts due on account of subscriptions of stock or other things in action, shall be deemed to be transferred and vested in such new corporation without fur ther act or deed; and all property, all rights of way, and all other interests, shall be as effectually the property of the new corporation as they were of the former corporations, parties to said agreement; and the title to real estate, either by deed, gift, grant, or by appropriations under the laws of this state, shall not be deemed to revert or be impaired by reason of this act: provided, that all rights of creditors, and all liens upon the property of either of said corporations, shall be preserved unimpaired, and the respective corporations may be deemed to be in existence to preserve the same; and all debts, liabilities, and duties of either of said companies shall henceforth attach to said new corporation and be enforced against it to the same extent as if said debts, liabilities, and duties had been contracted by it.'

'Sec. 7. Suits may be brought and maintained against such new company in the courts of this state for all causes of action in the same manner as against other railroad companies in this state.' 1 Swan & C. St. 327, 328.

The statute of Indiana, in force at the same time, upon the subject of consolidation, was as follows: 'Any railroad company heretofore organized, under the general or special laws of this state, shall have the power to intersect, join, and unite their railroad with any other railroad constructed or in progress of construction in this state, or in any adjoining state, at such point on the state line, or at any other point, as may be mutually agreed upon by said companies; and such railroad companies are authorized to merge and consolidate the stock of the respective companies, making one joint-stock company of the two railroads thus connected, upon such terms as may be by them mutually agreed upon, in accordance with the laws of the adjoining state, with whose road or roads connections are thus formed: provided, their charters authorize said railroads to go to the state line, or to such point of intersection.' St. Feb. 23, 1853, § 1; 1 Gavin & H. St. 526.

The only provision of the statutes of Illinois, cited in argument, was the provision that 'such consolidation may take place whenever the said companies shall respectively agree upon the terms and conditions of the same.' St. Feb. 28, 1854, c. 9, § 2; 1 Gross, St. 537.

Wager Swayne and H. S. Greene, for appellant.

C. W. Hassler, for appellees.

R. P. Ranney, E. C. Sprague, and ''Geo. F. Comstock'' filed brief (by leave of court) in behalf of parties interested on side of appellees.

GRAY, J.

title: Wabash St. Railway Company v. Ham


text: Talk:Wabash St. Railway Company v. Ham

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

title: Talk:Wabash St. Railway Company v. Ham


text:
Wabash St. Railway Company v. Ham/Opinion of the Court

The claim of the holders of the equipment bonds to a lien on the property of the Toledo, Wabash & Western Railway Company was asserted upon several grounds.

1. It was contended that the property of the Toledo & Wabash Railway Company was a trust fund for all its creditors, and that upon the consolidation the Toledo, Wabash & Western Railway Company took the property of the Toledo & Wabash Railway Company charged with the payment of all its debts. The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense that when the corporation is lawfully dissolved and all its business would up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation, as in that of a natural erson, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them. Story, Eq. Jur. § 1252; Curran v. Arkansas, 15 How. 304; Graham v. Railroad Co. 102 U.S. 148, 161; Railroad Co. v. Howard, 7 Wall. 392; Goodin v. Cincinnati & Whitewater Canal Co. 18 Ohio St. 169. But upon the consolidation, under express authority of statute, of two or more solvent corporations, the business of the old corporations is not wound up, nor their property sequestrated or distributed, but the very object of the consolidation, and of the statutes which permit it, is to continue the business of the old corporations. Whether the old corporations are dissolved into the new corporation, or are continued in existence under a new name and with new powers, and whether, in either case, the consolidated company takes the property of each of the old corporations charged with a lien for the payment of the debts of that corporation, depend upon the terms of the agreement of consolidation, and of the statutes under whose authority that consolidation is effected. In the present case, before the consolidation, no lien of any kind existed in favor of the equipment bonds; and the consolidation was made under and pursuant to statutes of Ohio, Indiana, and Illinois, passed before the issue of those bonds, and to which the contract of the bondholders was therefore subject.

The effect of the Ohio consolidation act was to merge the old corporations into the new one, which took their place, succeeded to their property, and assumed their liabilities. Shields v. Ohio, 95 U.S. 319; Railroad Co. v. Georgia, 98 U.S. 359. The liability imposed by that statute upon the new corporation for the debts of the old ones is the same as theirs, neither greater nor less. The provision of section 5, that 'all rights of creditors, and all liens upon the property of either of said corporations, shall be preserved unimpaired,' clearly distinguishes debts secured by lien from debts not so secured, and indicates no intention to create a new lien in favor of creditors who before had none, but simply preserves to each class of creditors the rights belonging to it before the consolidation. The further provisions of this section, that 'the respective corporations may be deemed to be in existence to preserve the same,' and that all debts of either of the old companies shall henceforth attach to the new corporation, and be enforced against it to the same extent as if it had contracted them, lead to the same conclusion.

The statute of Indiana is less specific in its provisions, but expressly authorizes railroad companies within the state to consolidate with railroad companies in an adjoining state, 'in accordance with the laws of the adjoining state;' and, as is well settled by decisions of the supreme court of Indiana, does not give to unsecured creditors of the old companies any lien or precedence as against a subsequent mortgage of the consolidated property. McMahan v. Morrison, 16 Ind. 172; Indianapolis, C. & L. R. Co. v. Jones, 29 Ind. 465; Paine v. Lake Erie & L. R. Co. 31 Ind. 283, 349; Jeffersonville, M. & I. R. Co. v. Hendricks, 41 Ind. 48.

It was not suggested in argument that there was any material difference in the statutes of Illinois upon the subject. This court therefore concurs in opinion with the circuit court, that the mere fact of consolidation, under these statutes, did not create any lien in favor of the equipment bonds.

2. It was next contended that the stipulation in the agreement of consolidation that the bonds and debts therein specified of the former companies shall 'be protected by the said consolidated company' created a lien in their favor. But it is only 'as to the principal and interest as they shall respectively fall due,' and according to the true meaning and effect' of the instruments or bonds which are the evidence of the de ts, that it is stipulated that the debts shall 'be protected by the said consolidated company;' and the stipulation covers debts secured by mortgage as well as unsecured debts. The agreement 'to protect' referring to the time of payment, and 'the true meaning and effect' of the equipment bonds having been to create only a personal and unsecured debt of one of the former companies, the words 'shall be protected' must have the same meaning which they ordinarily have in promises of men of business 'to protect' drafts or other debts, not made or contracted by themselves; that is to say, a personal obligation to see that they are paid at maturity.

3. It was further contended that, by the transfer of the property of the Toledo & Wabash Railway Company to the consolidated corporation, and the enumeration of the equipment bonds in the basis on which the former company entered into the consolidation, those bonds were part of the consideration of the transfer, and that the case comes within the principle of a vendor's lien for unpaid purchase money. But we are unable to perceive any analogy between the two cases. The doctrine of vendor's lien applies only to sales of real estate. The consolidation of the stock and property of several corporations into one was not a sale; and it did not affect real estate only, but included franchises and personal property.

4. The remaining question is whether the holders of the equipment bonds have acquired any lien, under the provisions of the mortgage executed in 1867 by the consolidated company of all its franchises and property, to secure the payment of new bonds to be issued by that company. It is true that the object of that mortgage, as appears by its recitals, was that the whole of the debts of the consolidated company, including the debts of either of the companies out of which it had been formed, whether secured by mortgage or, as in the case of the equipment bonds, not secured at all, 'should be consolidated into one and the same mortgage debt, upon equitable principles.' The mortgage accordingly provided that $13,300,000 of the new bonds should be retained, in order 'to retire, in such manner and upon such terms as the directors of said company may from time to time prescribe,' a like amount of the earlier bonds. But that mortgage secured only bonds issued under it, and those bonds were all to be payable in 40 years from its date. The directors were authorized to exchange such bonds for existing bonds, and it is possible that any holders of existing bonds might have compelled such an exchange by seasonably applying for it. But the company could not compel any bondholder to accept, as a substitute for the bonds which he held, new bonds payable at a later period. The equipment bonds were payable according to their terms in 1883, and the bonds issued under the new mortgage would not be payable until 1907. The holders of the equipment bonds might prefer to hold without security their bonds payable in 16 years, rather than to take instead bonds secured by mortgage, payable 24 years later. They took no steps to obtain such an exchange for more than 8 years after the execution of the mortgage of 1867, nor until after the institution of proceedings to foreclose the subsequent mortgage, executed by the company in 1873, to secure the payment of a new issue of bonds. The lien created by the latter mortgage took precedence of any claims which were not already secured by any prior mortgage. When the whole property of the consolidated company was sold under the decree of foreclosure of the mortgage of 1873, subject only to prior mortgages and liens, the purchasers took the property free from all debts not so secured.

The necessary conclusion is that the property sold under the decree of foreclosure is not subject to any lien in favor of the holders of the equipment bonds.

Decree reversed.


text: Talk:Wabash St. Railway Company v. Ham/Opinion of the Court


text:
Brown v. Maryland (114 U.S. 598)

This was an appeal from a decree in equity of circuit court of the United States for the district of Maryland, restraining a judgment creditor of the Chesapeake & Ohio Canal Company from levying upon money deposited by that company in a bank in Baltimore. The case appeared by the record to be as follows:

The Chesapeake & Ohio Canal Company was incorporated, and constructed a canal from Georgetown, in the District of Columbia, to Cumberland, in the state of Maryland, under statutes of Virginia and Maryland of 1824, confirmed by the act of congress of March 3, 1825, c. 52, (4 St. 101, 793-802.)

Under the statute of Maryland of 1834, c. 241, the state of Maryland lent to the company the sum of $2,000,000, to be used in the construction of the canal; and the company, on April 23, 1825, to secure the repayment of that sum, and interest, made to the state a mortgage of 'all and singular the lands and tenements, capital stock, estates and securities, goods and chattels, property and rights, now, or at any time hereafter to be acquired, and the net tolls and revenues of the said company.' No part of that loan, or of the interest accrued thereon, was ever paid.

Under the statute of Maryland of 1835, c. 395, the state subscribed and paid for 30,000 shares, and under the statute of 1838, c. 396, 13,750 shares, together constituting a majority of the stock in the company; first receiving from the company, as required by each statute, an instrument in writing under seal, by which the company guarantied to the state the payment, out of the profits of the work, of 6 per cent. yearly on the money paid to it by the state under that statute, until the clear annual profits of the canal should be more than sufficient to discharge the sums which the company should be liable to pay annually to the state, and should be adequate to a dividend of 6 per cent. among its stockholders, and further agreed that thereafter the state should receive, upon the stock by it subscribed for, a proportional dividend upon the profits of the work as declared from time to time. The company never paid to the state any part of such dividends or interest. On May 15, 1839, the company, as required by the statute of 1838, and to secure the payment to the state of interest for three years at the yearly rate of 5 per cent. on stock issued by the state under that statute to the amount of $1,375,000, made another mortgage to the state of its lands and tenements, property and effects, as well as of its net tolls and revenue. No part of this interest was paid.

The statute of Maryland of 1844, c. 281, authorized the company to borrow money and issue its bonds to the amount of $1,700,000, to provide means for completing its canal to Cumberland, and contained the following provisions:

Sec. 2. 'The bonds so issued as aforesaid, shall appear on the face of the same to be preferred liens on the revenues of said company, according to the provisions of this act, and with the assent of the said company, as is hereinafter provided for; the said bonds, without any preference or priority over each other on account of date, shall be preferred liens on the revenues and tolls that may accrue to the said company from the entire and every part of the canal and its works between Georgetown and Cumberland, which are hereby pledged and appropriated to the payment of the same, and the interest to accrue thereon in the manner hereinafter mentioned: provided, however, that this state shall in no case be bound or held responsible for the payment of said bonds or the interest thereon: and provided, further, that the president and directors of the said company shall, from time to time, and at all times hereafter, have the privilege and authority to use and apply such portion of said revenues and tolls as in their opinion may be n cessary to put and keep the said canal in good condition and repair for transportation, provide the requisite supply of water, and pay the salaries of officers and agents, and the current expenses of the said company.'

Sec. 4. 'That the rights and liens of this state upon the revenues of the Chesapeake & Ohio Canal Company shall be held and considered as waived, deferred, and postponed in favor of the bonds that may be issued under the aforegoing sections, so as to make the said bonds, and the interest to accrue thereon, preferred and absolute liens on said revenues, according to the provisions of the second section of this act, until said bonds and interest shall be fully paid.'

Sec. 5. 'That semi-annually in each year, as the same shall be payable, said Chesapeake & Ohio Canal Company shall pay the interest on the bonds constituting preferred liens as aforesaid to the party or parties respectively entitled thereto, or to their agent or agents authorized to receive the same; and as soon as the net revenues of said company, arising from the canal and its works between Georgetown and Cumberland as aforesaid, shall be more than sufficient to pay the interest that may become due and in arrear upon said bonds, with the costs of remittance and exchange, if there be any, and such further sum, not exceeding $5,000 annually, as may be necessary to pay the interest on the bonds or certificates of debt heretofore issued by said company to the creditors of the Potomac Company, for claims adjusted under the twelfth section of the charter of the Chesapeake & Ohio Canal Company, the said company shall annually pay to the treasurer of the Western Shore of this state, who shall receive the same under the responsibilities of his office, the surplus net revenues as aforesaid, to such amount as may be necessary as an adequate sinking fund, not exceeding the sum of $25,000 a year, on an average of years, dating from the first day of January next, after the completion of the canal to Cumberland; which sum or sums shall from time to time be invested by said treasurer, and be accumulated by him as a sinking fund to pay the principal of said bonds, until a sufficient amount is so paid and accumulated for that purpose.'

Sec. 6. 'That the president and directors of the Chesapeake & Ohio Canal Company be, and they are hereby, authorized to execute any deed, mortgage or other instrument of writing, that may hereafter be deemed necessary or expedient to give the fullest effect to the aforegoing provisions.'

Sec. 7. 'That the Chesapeake & Ohio Canal Company shall execute to this state and deliver to the treasurer of the Western Shore of Maryland a further mortgage on the said canal, its lands, tolls and revenues, subject to the liens and pledges by the aforegoing provisions of this act made, created, or authorized, as an additional security for the payment of the loan made by this state to the said company, under the act of December session, eighteen hundred and thirty-four, chapter two hundred and forty-one, and the interest due and in arrear, and which hereafter may accrue thereon; which mortgage shall be submitted to the attorney general of this state, and be approved by him as sufficient in law.'

On January 8, 1846, the company, pursuant to section 7 of that statute, and as an additional security for the payment of the $2,000,000 before lent by the state of Maryland to the company, under the statute of 1834, and interest, executed a mortgage of all its lands and tenements, its canal and appurtenances, 'embracing the entire undertaking, and the tolls and revenues that may hereafter accrue,' and all its property and rights; 'subject, nevertheless, to all and singular the liens and pledges by the provisions of the beforementioned act of eighteen hundred and forty-four, chapter two hundred and eighty-one, made, created, or authorized, or that have been or may hereafter be made, created, given, or granted by the said Chesapeake & Ohio Canal Company, or the president nd directors thereof, under or in pursuance of the provisions of said act, which said liens and pledges are in nowise to be lessened, impaired, or interfered with by this deed, or by anything herein contained, and subject, also, to all the other provisions of said act.'

On June 5, 1848, the company executed a mortgage, reciting the last provision of the second section, as well as the provisions of the fourth and sixth sections, of the act of 1844, and conveying to William W. Corcoran and others, trustees, 'the revenues and tolls of the entire and every part of the canal and its works between Georgetown and Cumberland.' to secure, after the payment of debts existing or thereafter contracted for repairs on the canal and providing the requisite supply of water, and for salaries and current expenses-First, the payment of interest on the bonds issued by the company under the act of 1844; second, the payment of interest to creditors of the Potomac Company; third, the creation of a sinking fund for the redemption of those bonds; with the further provisions 'that so long as the said canal company shall comply with their agreement by paying all the interest upon said bonds as the same falls due, and by providing an adequate sinking fund in the manner specified according to the provisions of the said act for the final redemption of the said bonds, they shall retain the management of the canal and its works, and collect and receive the revenues and tolls; but it they fail to comply with these conditions from any cause except a deficiency of revenue arising from a failure of business without fault on the part of said company, said fault to be made to appear by the grantees aforesaid, then the grantees may demand and shall thereupon receive possession, and shall appropriate the said tolls and revenues in the manner hereinbefore provided.'

In 1854, Charles Macalester, a citizen of Pennsylvania, received in an action in the circuit court of the United States for the district of Maryland, upon a debt not secured by any of the aforesaid mortgages, a judgment for $5,471.37, and costs. In 1867, Macalester having died, the appellant took out letters of administration upon his estate in Maryland, and became, as such administrator, plaintiff in that action, and judgment was entered for him against the company, and he in 1880 issued an attachment upon that judgment, and caused it to be laid in the hands of a bank in Baltimore as garnishee upon moneys standing to the credit of the company on the books of the bank. Those moneys were in the possession of the bank on deposit, and were exclusively made up of the tolls and revenues received by the company in the course of its business, and were sufficient to pay the judgment debt, interest, and costs, but were required to meet the necessary expenses of putting and keeping the canal in proper havigable condition, after payment of the salaries of officers, and supplying the necessary quantity of water for purposes of navigation.

In 1882, Macalester's administrator having applied to the court for a judgment of condemnation of so much of the moneys in the hands of the garnishee as would satisfy his judgment debt, interest, and costs, bills in equity to restrain further proceedings by him were filed by the state of Maryland, and by the trustees under the mortgage of 1848, setting forth the facts above stated, and also alleging that Macalester and his administrator 'had each notice, before acquiring any of their respective rights of action in the premises, of all the liens, charges, and duties affecting the revenues, tolls, and property of the said Chesapeake & Ohio Canal Company, and were especially affected with knowledge that such portions of the revenues and tolls of said Chesapeake & Ohio Canal Company as were necessary to put and keep the canal of the said company in good condition and repair for transportation, provide the requisite supply of water, and pay the salaries of officers and agents of the said com any, were dedicated and set apart to such purposes by contract with the state of Maryland, and were under such contract exclusively applicable to said purposes.'

The administrator filed a demurrer to each bill, which was overruled, and a final decree entered against him, and, upon his motion at the same term, the court ordered nunc pro tunc that the two suits be consolidated, 'but so that the validity, force, and effect of neither of said decrees shall be by this order affected or impaired.' He then appealed to this court.

Stewart Brown and ''Arthur Geo. Brown'', for appellant.

G. J. M. Gwinn, for appellee.

GRAY, J.

title: Brown v. Maryland (114 U.S. 598)


text: Talk:Brown v. Maryland (114 U.S. 598)

title: Talk:Brown v. Maryland (114 U.S. 598)


text:
Brown v. Maryland (114 U.S. 598)/Opinion of the Court

An ordinary mortgagee of real estate, who has not taken possession under his mortgage, is not entitled to the rents and profits as against the mortgagor or his attaching creditors; and the same rule holds good in the case of a mortgage by a railroad, canal, or bridge corporation of its tolls and revenues, which provides a mode in which the mortgagee shall take possession, and, until that mode is availed of, leaves the tolls and revenues in the control of the mortgagor, to be disposed of as he sees fit. Galveston R. R. v. Cowdrey, 11 Wall. 459; Gilman v. Illinois & M. Tel. Co. 91 U.S. 603; American Bridge Co. v. Heidelbach, 94 U.S. 798. But by the statutes of the state of Maryland relating to the Chesapeake & Ohio Canal Company, and the mortgages executed pursuant to those statutes, the application of the tolls and revenues of the canal was not left to the disposal of the corporation. The state of Maryland, regarding the construction and maintenance of the canal as an object of great importance and benefit to the public, had lent to the canal company large sums of money, and subscribed for a majority of its stock, and, to secure its loans and investments, had taken from the company mortgages upon the canal and all its tolls and revenues.

By the statute of 1844, c. 281, the state authorized the company, in order to obtain additional means, to issue bonds secured by mortgage to trustees of its net tolls and revenues; the state waived its own lien upon the gross revenues so far only as to subordinate it to the lien of that mortgage; subject to that lien, the state took a new mortgage as additional security for the repayment of its original loan to the company; and the statute, under and pursuant to which these two mortgages were executed, and to which each was made subject, expressly provided that the company should have authority to use and apply so much of the gross tolls and revenues as might be necessary to keep the canal in repair, to provide the requisite supply of water, and to pay salaries and current expenses. The necessary effect of this arrangement was for the promotion of the public object as well as for the ultimate benefit of the mortgagees, to appropriate the tolls and revenues in the first instance to the payment of necessary repairs and expenses.

The debt of the judgment creditor in this case was a general debt of the company, and not a bond secured by the trust mortgage, nor a debt contracted for repairs of salaries, or other current expenses. It is alleged in the bills, and admitted by the demurrers, that the creditor, at the time of contracting his debt, had notice of all the charges, liens, and duties affecting the tolls and revenues, and especially of the provision by which they were appropriated, in the first instance, to the payment of necessary expenses. And the money of the corporation, which he seeks to apply to the payment of his debt, is needed for those expenses. It follows that the judgment creditor has no equity, and that the state of Maryland, and the trustees for bondholders, whose security will be affected by the diversion of this money from its lawful object, are entitled to injunctions. This conclusion accords with the adjudication of the court of appeals of Maryland in Brady v. State, 26 Md. 290, and with the opinions expressed by that ourt in earlier and later cases. Boyd v. Chesapeake & Ohio Canal Co. 17 Md. 195; Virginia v. Same, 32 Md. 501. Decree affirmed.


text: Talk:Brown v. Maryland (114 U.S. 598)/Opinion of the Court


text:
Wurts v. Hoagland

This was a writ of error by the devisees of Mary V. Wurts to reverse a judgment confirming an assessment of commissioners for the drainage of lands under the statute of New Jersey of March 8, 1871, the material provisions of which are as follows:

By section 1 'the board of managers of the geological survey, on the application of at least five owners of separate lots of land included in any tract of land in this state which is subject to overflow from freshets, or which is usually in a low, marshy, boggy, or wet condition,' are authorized to examine the tract, and, if they deem it for the interest of the public and of the landowners to be affected thereby, then to make surveys, and decide upon and adopt a system of drainage, and report it to the supreme court of the state; and thereupon the court, upon reasonable notice published in a newspaper circulating in the county where the tract is, shall appoint three commissioners to superintend and carry out the system of drainage so adopted and reported: 'provided, that if, at the time fixed for such appointment of commissioners, it shall appear to the court by the written remonstrance of the owners of a majority of the said low and wet lands, duly authenticated by affidavit, that they are opposed to the drainage thereof at the common expense, then the said court shall not appoint such commissioners.'

By section 2, the commissioners shall cause the tract to be drained in accordance with the general plan of the board of managers, and, after the completion of the work, report to the supreme court the expense thereof, together with a general description of the lands which, in their judgment, ought to contribute to the expense. Notice of the report shall be published for four weeks, in order that any persons interested may examine the report, and file objections to it. If any such objections are filed within the four weeks, the supreme court shall determine upon the same in a summary manner, and, without further notice, make an order directing the commissioners 'to distribute and assess the amount of said expense, and interest, upon the lands contained within the territory reported by them originally, or as corrected by the supreme court, in proportion, as near as they can judge, to the benefit derived from said drainage, by the several parcels of land to be assessed.' The assessment, when completed, shall be deposited in some convenient place for inspection by the parties interested, and notice of the completion of the assessment, and of the place where it is deposited, published for six weeks, designating a time and place when and where the commissioners will meet to hear objections to the assessment; and the commissioners, having heard and decided upon such objections as shall be made to them, shall proceed to complete their assessment and file it in the clerk's office of the supreme court, and notice of the filing shall be published for four weeks, after which, if no objections have been made to the assessment, it shall be confirmed by the court; any objections filed within the four weeks the supreme court shall hear and determine in a summary manner, but 'shall not reverse said assessment, or any part thereof, except for some error in law, or in the principles of assessment, made or committed by said commissioners.' If for any such cause the assessment, or any part thereof, shall be reversed, it shall be referred to the commissioners, to be corrected accordingly, and, when it shall have been corrected and filed, like proceedings shall be had, until the court shall finally confirm the assessment; and thereupon the commissioners shall publish notice for four weeks, requiring the several owners, or ther parties interested in the lands assessed, to pay their assessments.

By section 3 further provisions are made for collecting the assessment by demand on the owner of the lands assessed, and if he cannot be found, or neglects or refuses to pay, then by sale of his land for the least number of years that any person will take the same.

By section 5 the commissioners may from time to time borrow the necessary moneys to carry on the work of draining the lands, and give their bonds as such commissioners therefor, and pledge for the repayment thereof the assessment to be made as aforesaid.

By proceedings had in accordance with this statute, the board of managers of the geographical survey, upon the application of more than five owners of separate lots of land situated in the tract of land known as the 'Great Meadows,' on the Pequest river, examined and surveyed the entire tract, and reported a plan for draining it to the supreme court, and on November 15, 1872, three commissioners were appointed to carry the plan into execution. Pending the proceedings, on March 19, 1874, a supplemental statute was passed, by section 2 of which, 'if the said commissioners, after having commenced the drainage of such tract, and proceeded therewith, shall, before the drainage of the same shall be completed, be compelled to suspend the completion thereof, from any inability at that time to raise the money required therefor, they shall proceed to ascertain the tracts of land benefited or intended to be benefited by said drainage, and the relative proportions in which the said respective tracts have been or will be benefited thereby, and also the expenses already incurred in said drainage and, as near as may be, the additional expenses required for the completion thereof,' and make and report to the court an assessment of such expenses. In accordance with that provision of the statute of 1874, the commissioners, before completing the work, made and reported to the court an assessment based upon an estimate of contemplated benefits, which was, for that reason, upon objections filed by Mrs. Wurts, set aside by an order of the supreme court, affirmed by the court of errors. 39 N. J. Law, 433; 41 N. J. Law, 175.

On May 17, 1879, after the completion of the work, the commissioners made a report to the court, pursuant to the statute of 1871, showing the expense to have been $107,916.07. No objections to that report having been filed, after four weeks' notice, the court, on June 23d, ordered the commissioners to distribute that sum 'upon the lands mentioned in their said report, in proportion, as nearly as they can judge, to the benefit derived from said drainage by the several parcels of land to be assessed.' The commissioners made an assessment accordingly, the proportion of which on the lands of Mrs. Wurts was $13,347.84, and after notice to and hearing of all parties who desired to object to the assessment, reported it to the supreme court, which directed it to be modified as to certain lands of other parties lying outside the original survey, and in other respects confirmed the assessment, notwithstanding objections made to it by the devisees of Mrs. Wurts; and its judgment was affirmed in the court of errors. 42 N. J. Law, 553; 43 N. J. Law, 456. The judgment of the court of errors was the final judgment in the case, and this writ of error was addressed to the supreme court, because at the time of suing out the writ of error the record had been transmitted to that court, and was in its possession. 105 U.S. 701.

The error assigned was that 'the act of March 8, 1871, upon which the said judgment and proceedings are founded, violates the constitution of the United States in this, that it deprives the plaintiffs in error of their property without due process of law, and denies to them the equal protection of the laws, and violates the first section of the fourteenth amendment to the constitution of the United States.'

S. U. Shipman and ''Saml. Dickson'', for plaintiffs in error.

Theodore Little, for defendants in error.

GRAY, J.

title: Wurts v. Hoagland


text: Talk:Wurts v. Hoagland

title: Talk:Wurts v. Hoagland


text:
Wurts v. Hoagland/Opinion of the Court

General laws authorizing the drainage of tracts of swamp and low lands, by commissioners appointed upon proceedings instituted by some of the owners of the lands, and the assessment of the whole exp nse of the work upon all the lands within the tract in question, have long existed in the state of New Jersey, and have been sustained and acted on by her courts, under the constitution of 1776, as well as under that of 1844. St. Dec. 23, 1783, Wilson's Laws, 382; Nov. 29, 1788, and Nov 24, 1792, Patterson's Laws, 84, 119; Jones v. Lore, 3 N. J. Law, 598; Doremus v. Smith, 4 N. J. Law, 160; Westcott v. Garrison, 6 N. J. Law, 132; State v. Frank & Guisbert Creek Co. 14 N. J. Law, 301; State v. Newark, 27 N. J. Law, 185, 194; Berdan v. Riser Drainage Co. cited 18 N. J. Eq. 69; Coster v. Tide-water Co. Id. 54, 68, 518, 531; State v. Blake, 35 N. J. Law, 208, and 36 N. J. Law, 442; Hoagland v. Wurts, 41 N. J. Law, 175, 179.

In State v. Newark, 27 N. J. Law, 185, 194, the supreme court said: 'Laws for the drainage and embanking of low grounds, and to provide for the expense, for the mere benefit of the proprietors, without reference to the public good, are to be classed, not under the taxing but the police power of the government.'

In Coster v. Tide-water Co. 18 N. J. Eq. 54, 518, the same view was strongly asserted in the court of chancery and in the court of errors. The point there decided was that a statute providing for the drainage of a large tract of land overflowed by tide-water, by a corporation chartered for the purpose, none of the members of which owned any lands within the tract, if it could be maintained as an exercise of the right of eminent domain for public use, yet could not authorize an assessment on the owners of such lands for anything beyond the benefits conferred upon them. But the case was clearly and sharply distinguished from the case of the drainage of lands for the exclusive benefit of the owners upon proceedings instituted by some of them.

Chancellor ZABRISKIE said: 'But there is another branch of the legislative power that may be appealed to, as authorizing the taking of the lands required for the works to drain these meadows. It is the power of the government to prescribe public regulations for the better and more economical management of property of persons whose property adjoins, or which, from some other reason, can be better managed and improved by some joint operation, such as the power of regulating the building of party walls; making and maintaining partition fences and ditches; constructing ditches and sewers for the draining of uplands or marshes, which can more advantageously be drained by a common sewer or ditch. This a well-known legislative power, recognized and treated of by all jurisconsults and writers upon law through the civilized world; a branch of legislative power exercised by this state before and since the revolution, and before and since the adoption of the present constitution, and repeatedly recognized by our courts. The legislature has power to regulate these subjects, either by general law, or by particular laws for certain localities or particular and defined tracts of land. When the constitution vested the legislative power in the senate and general assembly, it conferred the power to make these public regulations as a well-understood part of that legislative power.' 'The principle of them all is, to make an improvement common to all concerned, at the common expense of all. And to effect this object, the acts provide that the works to effect the drainage may be located on any part of the lands drained, paying the owner of the land thus occupied compensation for the damage by such use. So far, private property is taken by them; further it is not. In none of them is the owner divested of his fee, and in most there is no corporation in which it could be vested, and for all other purposes the title of the land remained in the owner. To effect such common drainage, power was in some cases given to continue these drains through adjacent lands not drained, upon compensation. All this was an ancient and well-k own exercise of legislative power, and may well be considered as included in the grant of legislative power in the constitution.' 18 N. J. Eq. 68-71.

Chief Justice BEASLEY, in delivering the judgment of the court of errors, enforced the same distinction, saying: 'This case, with regard to the grounds on which it rests, is to be distinguished from that class of proceedings by which meadows and other lands are drained on the application of the landowners themselves. In the present instance, the state is the sole actor, and public necessity or convenience is the only justification of her intervention. But the regulations established by the legislative power, whereby the owners of meadow lands are compelled to submit to an equal burden of the expense incurred in their improvement, are rules of police of the same character as provisions concerning party walls and partition fences. To these cases, therefore, the principle upon which the decision of the present case rests is not to be extended.' 18 N. J. Eq. 531.

These full and explicit statements have been since treated by the courts of New Jersey as finally establishing the constitutionality of such statutes.

In State v. Blake, 35 N. J. Law, 208, and 36 N. J. Law, 442, a statute authorizing a tract of a swamps and marsh lands to be drained by commissioners elected by the owners of the lands, and the entire expense assessed upon all the owners, was held to be constitutional, although no appeal was given from the assessment. In the supreme court it was said: 'This branch of legislative power which regulates the construction of ditches and secures the drainage of meadows and marshy lands has been exercised so long, and is so fully recognized, that it is now too late to call it in question. It is clearly affirmed in the Tide-water Co. v. Coster, and cannot be opened to discussion.' 35 N. J. Law, 211. And the court of errors, in a unanimous judgment, approved this statement of the supreme court, as well as that of Chief Justice BEASLEY, in Coster v. Tide-water Co., above quoted. 36 N. J. Law, 447, 448.

The constitutionality of the statute of 1871, under which the proceedings in the case at bar were had, was upheld by the supreme court and the court of errors upon the ground of the previous decisions. In re Lower Chatham Drainage, 35 N. J. Law, 497, 501; In re Pequest River Drainage, 39 N. J. Law, 433, 434; 41 N. J. Law, 175, 179; 42 N. J. Law, 553, 554; and 43 N. J. Law, 456. The further suggestion made by the supreme court in 35 N. J. Law, 501, 506, and 39 N. J. Law, 434, that this statute could be maintained as a taking of private property for a public use, was disapproved by the court of errors in 41 N. J. Law, 178.

In Kean v. Driggs Drainage Co. 45 N. J. Law, 91, cited for the plaintiffs in error, the statute that was held unconstitutional created a private corporation with power to drain lands without the consent or application of any of the owners; and the supreme court observed that in the opinions of the court of errors in the present case and in Coster v. Tide-water Co. the distinction was clearly drawn between meadow drainage for the exclusive benefit of the owners, to be done at their sole expense, and drainage undertaken by the public primarily as a matter of public concern, in which case the assessment upon land-owners must be limited to benefits imparted. 45 N. J. Law, 94.

This review of the cases clearly shows that general laws for the drainage of large tracts of swamps and low lands, upon proceedings instituted by some of the proprietors of the lands to compel all to contribute to the expense of their drainage, have been maintained by the courts of New Jersey (without reference to the power of taking private property for the public use under the right of eminent domain, or to the power of suppressing a nuisance dangerous to the public health) as a just and constitutional exercise of the power of the legislature to establish regula ions by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which, by reason of the peculiar natural condition of the whole tract, cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful to all at their joint expense. The case comes within the principle upon which this court upheld the validity of general mill acts in Head v. Amoskeag Manuf'g Co. 113 U.S. 9; S.C.., ante, 441.

It is also well settled by the decisions of the courts of New Jersey that such proceedings are not within the provision of the constitution of that state securing the right of trial by Jury. Const. N. J. 1776, art. 22; Const. 1844, art. 1, § 7; Scudder v. Trenton Delaware Falls Co. 1 N. J. Eq. 694, 721-725; In re Lower Chatham Drainge, 35 N. J. Law, 487; Howe v. Plainfield, 37 N. J. Law, 145.

The statute of 1871 is applicable to any tract of land within the state which is subject to overflow from freshets, or which is usually in low, marshy, boggy, or wet condition. It is only upon the application of at least five owners of separate lots of land included in the tract that a plan of drainage can be adopted. All persons interested have opportunity by public notice to object to the appointment of commissioners to execute that plan, and no commissioners can be appointed against the remonstrance of the owners of the greater part of the lands. All persons interested have also opportunity by public notice to be heard before the court on the commissioner's report of the expense of the work, and of the lands which, in their judgment, ought to contribute, as well as before the commissioners; and on any error in law or in the principles of assessment, before the court, upon the amount of the assessment. As the statute is applicable to all lands of the same kind, and as no person can be assessed under it for the expense of drainage without notice and opportunity to be heard, the plaintiffs in error have neither been denied the equal protection of the laws, nor been deprived of their property without due process of law, within the meaning of the fourteenth amendment of the constitution of the United States. Barbier v. Connolly, 113 U.S. 27, 31; S.C.. ante, 357; Walker v. Sauvinet, 92 U.S. 90; Davidson v. New Orleans, 96 U.S. 97; Hagar v. Reclamation District, 111 U.S. 701; S.C.. 4 SUP. CT. REP. 663.

Judgment affirmed.

title: Wurts v. Hoagland/Opinion of the Court


text: Talk:Wurts v. Hoagland/Opinion of the Court


text:
Page:Book of the Riviera.djvu/19

Rh rosary of winter resorts to Hyères on one side to Alassio on the other; as white grains threaded on the line from Marseilles to Genoa. As this chain of villas, hotels, casinos, and shops has sprung up so recently, the whole looks extremely modern, and devoid of historic interest. That it is not so, I hope to show. This modern fringe is but a fringe on an ancient garment; but a superficial sprinkling over beds of remote antiquity rich in story. Sometimes it is but a glimpse we get—as at Antibes, where a monument was dug up dedicated to the manes of a little "boy from the North, aged twelve years, who danced and pleased" in the theatre. The name of the poor lad is not given; but what a picture does it present! Possibly, of a British child-slave sent to caper, with sore heart, before the Roman nobles and ladies—and who pined and died. But often we have more than a hint. The altar piece of the Burning Bush at Aix gives up an authentic portrait of easy-going King Réné, the luckless wearer of many crowns, and the possessor of not a single kingdom—Réné, the father of the still more luckless Margaret, wife of our Henry VI. Among the Montagnes des Maures, on a height are the cisterns and foundations of the stronghold of the Saracens, their last stronghold on this side of the Pyrenees, whence they swept the country, burning and slaying, till dislodged in 972 by William, Count of Provence. Again, the house at Draguignan of Queen Joanna, recalls her tragic story; the wife of four husbands, the murderess of the first, she for whose delectation Boccaccio collected his merry, immoral tales; she, who sold Avignon to the Popes, and so brought about their migration from Rome,

title: Page:Book of the Riviera.djvu/19


text:
Schofield v. Chicago M St. P Railway Company

This is an action brought by William R. Schofield against the Chicago, Milwaukee & St. Paul Railway Company, in a state court of Minnesota, and removed by the defendant into the circuit court of the United States for the district of Minnesota. It was tried before a jury, and, after the plaintiff had rested his case, the jury, under the instruction of the court, rendered a verdict for the defendant. The suit was one to recover damages for personal injuries to the plaintiff, caused by his being struck by a train running on the railroad of the defendant, while the plaintiff, in a sleigh drawn by one horse, was endeavoring to cross the track, on the thirteenth of February, 1881, at Newport, in Minnesota. The train was running north, on the east bank of the Mississippi river, through Newport, to St. Paul, about 4 o'clock in the afternoon, in daylight, on Sunday. The track was straight from the crossing to a point 2,320 feet south of it, and the country was flat and open. The plaintiff was himself driving, with a companion in the sleigh, in a northerly direction, on a wagon road which ran in the same general course with the railroad, and to the west of it, and attempted to cross it from the west to the east, as the train approached from the south. The crossing was 70 rods to the north of the depot at Newport. Opposite the depot, the wagon road was 280 feet distant to the west of the depot. The plaintiff had a slow horse, and was following the beaten track in the snow. When he arrived at a point in the wagon road 600 feet from the crossing, he could there, and all the way from there till he reached the crossing, have an unobstructed view of the railroad track to the south, and of any train on it, from the crossing back to the depot; and, when he reached a point in the wagon road 33 feet from the crossing, he could have an unobstructed view to a considerable greater distance southward beyond the depot. The evidence shows that, if the train had passed the depot when the plaintiff was at a point 600 feet, or any less number of feet, from the crossing, he could not have failed to see the train, if he had looked for it; and that, if the train had not reached the depot, when the plaintiff arrived at a point 33 feet from the crossing, he could not at that point, or at any point in the 33 feet, have failed to see the train beyond and to the south of the depot, if he had looked for it. When the train passed the depot the plaintiff was at least 100 feet from the crossing. The train consisted of a locomotive engine and seven or eight cars. The engine whistled at a point 4,300 feet south of the depot, which was the whistling place for that depot. The wind was blowing strongly from north to south. The man in company with the plain iff was killed by the accident, as was the horse. The plaintiff resided in the neighborhood, and was familiar with the crossing. After the accident, the men, horse, and sleigh were found on the west side of the railroad, showing that they had been struck as they were entering on the crossing. The train was not a regular one, and no train was due at the time of the accident; it was moving at a high rate of speed; it did not stop at the depot; and it gave no signal by blowing a whistle, or ringing a bell, after it passed the depot.

John B. Sanborn and S. L. Pierce, for plaintiff in error.

''Chas. E. Flandrau'', for defendant in error.

BLATCHFORD, J.


text: Talk:Schofield v. Chicago M St. P Railway Company


text:
Schofield v. Chicago M St. P Railway Company/Opinion of the Court

The ground upon which the circuit court directed a verdict for the defendant (2 McCrary, 268, S.C.. 8 Fed. Rep. 488) was that the plaintiff, by his own showing, was guilty of contributory negligence, whatever negligence there may have been on the part of the defendant. Applying the test, that, if it would be the duty of the court, on the plaintiff's evidence, to set aside, as contrary to the evidence, a verdict for the defendant, if given, the court had authority to direct a verdict for the defendant, it considered the case under the rules laid down in Continental Improvement Co. v. Stead, 95 U.S. 161, and especially in Railroad Co. v. Houston, Id. 697, and arrived at the conclusions of law that neither the fact that the train was not a regular one, nor the fact of its high rate of speed, excused the plaintiff from the duty of looking out for a train; that the fact that it did not stop at the depot could avail the plaintiff only on the view that, hearing a whistle from it, as it was south of the depot, he supposed it would stop there, and so failed to look, but that, in such case, he would have been negligent, because it was not certain the train would stop at the depot, and he would have had warning that a train was approaching; that the neglect of the train to blow a whistle or ring a bell between the depot and the crossing did not relieve the plaintiff from the duty of looking back, at least as far as the depot, before going on the track; and that, in view of the duty incumbent on the plaintiff to look for a coming train before going so near to the track as to be unable to prevent a collision, and of the fact that he was at least 100 feet from the crossing when the train passed the depot, and could then have seen it if he had looked, and have avoided the accident by stopping until it had passed by, he was negligent in not looking.

These conclusions of law approve themselves to our judgment, and are in accordance with the rules laid down in the cases referred to. In Railroad Co. v. Houston it was said: 'The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employes, in these particulars, was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant.' The court added that an instruction to render a verdict for the defendant would have been proper. These views concur with those laid down by the supreme court of Minnesota in Brown v. ''Milwaukee Ry. Co.'' 22 Minn. 165, and are in accord with the current of decisions in the courts of the states. It is the settled law of this court that, when the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Fant, 22 Wall. 116; Herbert v. Butler, 97 U.S. 319; Bowditch v. Boston, 101 U.S. 16; Griggs v. Houston, 104 U.S. 553; Randall v. Baltimore & Ohio R. Co. 109 U.S. 478; S.C.. 3 SUP. CT. REP. 322; Anderson Co. Com'rs v. Beal, 113 U.S. 227; S.C.. ante, 433; Baylis v. ''Travelers' Ins. Co. 113 U.S. 316; S.C.., ante'', 494. This rule was rightly applied by the circuit court to the present case.

Judgment affirmed.


text: Talk:Schofield v. Chicago M St. P Railway Company/Opinion of the Court


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title: User:Blue-Haired Lawyer/vector.css


text:
United States v. Corson

''Sol. Gen. Phillips'', for appellant.

No brief filed for appellee.

HARLAN, J.

title: United States v. Corson


text: Talk:United States v. Corson

title: Talk:United States v. Corson


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

This is an appeal from a judgment of the court of claims in favor of appellee for the sum of $538,-$328 of which represents his claim for pay as a captain and assistant quartermaster of volunteers from March 27, 1865, to June 9, 1865, and $210, his claim for pay allowed by the acts of March 3, 1865, c. 81, § 4, (13 St. 497,) and July 16, 1866, c. 181, (14 St. 94;) the first of which acts provides that all officers of volunteers in commission, at its date, below the rank of brigadier general, who should continue in the military service to the close of the war, should be entitled to receive, upon being mustered out of the service, three months' pay proper; and the las of which extended the provisions of the first act to all officers of volunteers below the rank of brigadier general, who were in the service on March 3, 1865, and whose resignations were presented and accepted, or who were mustered out at their own request, or otherwise honorably discharged from the service after the ninth of April, 1865.

The facts are: Appellee enlisted as a private soldier in the military service of the United States in August, 1861. Having been promoted, from time to time, he was commissioned, prior to March 27, 1865, as captain and assistant quartermaster of volunteers. His service was continuous from August, 1861, to March 27, 1865, on which day he was, by order of Pres. Lincoln, dismissed the service. But, on June 9, 1865, an order was issued by Pres. Johnson revoking the order of dismissal, and restoring him to his former position. By an order issued from the war department under date of June 19, 1865, he was assigned to duty as division quartermaster of the First division, First army corps, with the temporary rank, pay, and emolument of major in the quartermaster's department under the act of July 4, 1864. He held the latter position until October 7, 1865, when he was honorably mustered out of the service of the United States. It does not appear that there was any attempt, between March 27, 1865, and June 9, 1865, to fill the vacancy by another appointment.

In Blake v. U.S. 103 U.S. 231, it was said that 'from the organization of the government, under the present constitution, to the commencement of the recent war for the suppression of the rebellion, the power of the president, in the absence of statutory regulations, to dismiss from the service an officer of the army or navy was not questioned in any adjudged case, or by any department of the government.' See, also, McElrath v. U.S. 102 U.S. 426; Keyes v. U.S. 109 U.S. 339; S.C.. 3 SUP. CT. REP. 202. But the seventeenth section of the act of July 27, 1862, c. 200, (12 St. 596,) authorized and requested the president to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force, any officer for any cause, which, in his judgment, either rendered such officer unsuitable for, or whose dismission would promote, the public service. In accordance with these decisions it must be held that that act, if not simply declaratory of the long-established law, invested the president with authority to make the order of March 27, 1865, dismissing appellee from the service of the United States. No restriction or limitation was imposed upon his authority in that regard, until the passage of the act of July 13, 1866, c. 176, (14 St. 92,) repealing the seventeenth section of the act of July 17, 1862, and by which, also, it was declared that 'no officer in the military or naval service shall, in time of pease, be dismissed from the service, except upon and in pursuance of a sentence of a court-martial to that effect, or in commutation thereof.' That act did not go into effective operation, throughout the whole of the United States, until August 20, 1866; for, not until that day, was the war against the rebellion recognized by the president and congress as having finally ceased in every part of the Union. McElrath v. U.S. 102 U.S. 438.

In view of these adjudications, it is not to be doubted that the effect of the order of March 27, 1865, dismissing appellee from the service, was to sever his relations with the army. Thenceforward, and until, in some lawful way, again appointed, he was disconnected from that branch of the public service as completely as if he had never been an officer of the army. So that his right to pay, as captain and assistant quartermaster of volunteers, from the date of his dismissal from the service by Pres. Lincoln to the date of the order of Pres. Johnson, depends entirely upon the question whether an officer of the army, once lawfully dismissed from the service, can regain his position and ecome entitled to its emoluments by means of a subsequent order revoking the order of dismissal, and restoring him to his former position. This question must be answered in the negative, upon the authority of Mimmack v. U.S. 97 U.S. 436. The death of the incumbent could not more certainly have made a vacancy than was created by Pres. Lincoln's order of dismissal from the service. And such vacancy could only have been filled by a new and original appointment, to which, by the constitution, the advice and consent of the senate were necessary; unless the vacancy occurred in the recess of that body, in which case, the president could have granted a commission, to expire at the end of its next succeeding session. Const. art. 2, § 2. It results that, as the appellee was dismissed from the army during the recent war, by a valid order of the president, and as he was not reappointed in the mode prescribed by law, he was not entitled, as an officer of the army, to the pay allowed by statute for the period in question.

The judgment is reversed, and the cause remanded, with directions to dismiss the petition.


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


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Brown v. Houston

J. P. Hornor and C. W. Hornor, for plaintiffs in error.

No appearance for defendants in error.

BRADLEY, J.

title: Brown v. Houston


text: Talk:Brown v. Houston

title: Talk:Brown v. Houston