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Stone v. Towne/Opinion of the Court

On the first day of November, 1857, Oliver O. Woodman made his four promissory notes, payable to his own order, at the office of Brown, Johnson, & Co., New Orleans, and indorsed them in blank, and delivered them to said Brown, Johnson, & Co. Three of the notes were for $3,000 each, and one for $2,761.15; and they fell due at various periods within five months. They were given for a pre-existing indebtedness of Woodman to Brown, Johnson, & Co.; and were secured by a mortgage on the cotton farm of Woodman, in Louisiana. None of these notes were paid at maturity. On the twenty-sixth day of May, 1869, William A.Stone, the appellant in this case, brought a suit in the Circuit Court of the United States for the Southern District of Mississippi against Ivory Woodman, as administrator with the will annexed of Oliver O. Woodman, on these notes: and the administrator thereupon confessed a judgment in his favor for the amount of the notes with interest; to wit, $21,868.35.

The suit now before us is a bill in chancery, brought by appellees to set aside this judgment as obtained by fraud. These appellees are citizens of the State of Louisiana, and are the heirs of Robert W. Burney; and the ground on which they seek to interpose in this manner is, that Stone is trying to subject the lands of Woodman to the payment of this judgment, which lands they claim had in the lifetime of their ancestor, R. W. Burney, been conveyed to him, and, after his death, had descended to them.

The judgment which is assailed is not a lien on this land, since it is rendered in Mississippi, and the land is in Louisiana. It does not bind any of the complainants personally, for they are not parties to it in any way; nor does it bind the administrator or executor of Burney, for the same reason. It is simply a judgment in the State of Mississippi, in the Federal Court, against the administrator of Woodman's will.

It is very difficult to see on what principle the complainants, who were not parties to that judgment, who are not in any sense bound by it, and who cannot be made liable for it in personam, can sustain a bill to set aside the judgment, which is of itself no lien on their property, and is in its terms binding only on the administrator of Woodman's will.

The petition in the suit of Stone to enforce this judgment against the estate of Woodman in Louisiana, which is made part of the bill, does not rely upon the mortgage, but upon the fact that the real estate of which Woodman died seized was never really sold or conveyed to Burney; that this heirs have no title to it; that it is still a part of Woodman's succession, and, for that reason, liable, in the hands of the administrator, to the payment of this judgment. Every defence which the heirs of Burney can rightfully make to this petition is open to them. If what it charges is untrue, they can defend against it successfully; if it is true, the property ought to be restored to the succession of Woodman, without regard to the validity of the judgment. That is a matter between the administrator of Woodman or his heirs, and the judgment plaintiff, Stone, in which the heirs of Burney can have no legal interest. If they have such an interest, they can set it up in the Louisiana suit, so far at least as may be necessary to protect their rights; and beyond this they have no right to interfere.

On this ground, we are satisfied that the decree must be reversed, and the bill dismissed; and it is so ordered.

title: Stone v. Towne/Opinion of the Court


text: Talk:Stone v. Towne/Opinion of the Court

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


text:
Union Pacific Railroad Company v. Hall

ERROR to the Circuit Court of the United States for the District of Iowa.

Submitted on brief by Mr. A. J. Poppleton for the plaintiff in error, and by Mr. John N. Rogers, contra.

Mr. JUSTICE STRONG delivered the opinion of the court.

title: Union Pacific Railroad Company v. Hall


text: Talk:Union Pacific Railroad Company v. Hall


text:
Union Pacific Railroad Company v. Hall/Opinion of the Court

This is a proceeding instituted under the act of Congress of March 3, 1873 (17 Stat. 509, sect. 4), which confers upon the proper Circuit Court of the United States jurisdiction to hear and determine all cases of mandamus to compel the Union Pacific Railroad Company to operate its road as required by law. The alternative writ, as amended, commanded the railroad company to operate the whole of their road from Council Bluffs westward (including that portion thereof between Council Bluffs and Omaha, and constructed over and across their bridge spanning the Missouri River) as one continuous line for all purposes of communication, travel, and transportation; and especially commanded them to start from Council Bluffs their regular through freight and passenger trains westward bound, and to run their eastern-bound trains of both descriptions through and over said bridge to Council Bluffs under one uniform time-schedule with the remainder of their road, and to desist and refrain wholly from operating said last-mentioned portion of said road as an independent and separate line, and from causing freight or passengers bound westward or eastward to be transferred at Omaha, or to show cause why they did not obey the writ.

To the alternative mandamus the railroad company put in a return, which was met by an answer filed by the relators; and the case was heard by the Circuit Court on the facts stated in the writ, the return, and the answer (the averments of the answer not being controverted), and a peremptory mandamus was ordered. It is of this final judgment that the plaintiffs in error now complain.

The obligation of the Union Pacific Railroad Company to operate their road as a continuous line, throughout its entire length, is not denied. The company is a creature of congressional legislation. It was incorporated by the act of Congress of July 1, 1862 (12 Stat. 489); and its powers and duties were prescribed by that act, and others amendatory thereof. By the twelfth section it was enacted that the 'whole line of the railroad and branches and telegraph shall be operated and used for all purposes of communication, travel, and transportation, so far as the public and government are concerned, as one connected, continuous line.' A similar requisition was made in the fifteenth section of the amendatory act of July 2, 1864. 13 Stat. 356. The contest in the case does not relate to the existence of this duty: it is principally over the question, whether the railroad bridge over the Missouri River, between Omaha in Nebraska and Council Bluffs in Iowa, is a part of the Union Pacific Railroad; for, if it is, there can be no doubt that the company are required by law to use it in connection with, and as a part of, their entire road, operating all parts together as a continuous line.

The answer to this question must be found in the legislation of Congress, and in what has been done under it. By the first section of the act of 1862, the Union Pacific Railroad Company was authorized to construct, maintain, and enjoy a continuous railroad and telegraph, with the appurtenances, from a point on the one hundredth meridian of longitude west from Greenwich to the western boundary of the Territory of Nevada. There it was intended to meet and connect with the line of the Central Pacific Railroad Company of California (sect. 8), thus forming a continuous line to the Pacific Ocean. This was the main line. But the same act made provision also for several eastern connections. The ninth section authorized the Leavenworth, Pawnee and Western Railroad Company of Kansas (now the Kansas Pacific) to construct a railroad from the Missouri River, at the mouth of the Kansas River (on the south side thereof, so as to connect with the Pacific Railroad of Missouri), to the point of western departure of the Union Pacific on the one hundredth meridian. Thus provision was made for an eastern connection by an unbroken line of road to St. Louis on the Mississippi. This was not all. By the fourteenth section of the act the Union Pacific was authorized and required 'to construct a single line of railroad and telegraph from a point on the western boundary of the State of Iowa, to be fixed by the President of the United States,. . . so as to form a connection with the lines of the said company at some point on the one hundredth meridian of longitude aforesaid, from the point of commencement on the western boundary of the State of Iowa.' Thus provisions were made for the Iowa eastern branch of the main line. It was doubtless intended to render possible a connection with any railroad that might thereafter be constructed from the western boundary of Iowa eastward. None was then completed; but a railroad was in progress of construction through the State, from its eastern border to the Missouri River.

The fourteenth section also made provision for another eastern connection. It enacted, that whenever there should be a line of railroad completed through Minnesota or Iowa to Sioux City, then the said Pacific (Union Pacific) Railroad Company should be authorized and required to construct a railroad and telegraph from said Sioux City, so as to connect with the Iowa branch, or with the main line, at a point not farther west than the one hundredth meridian of longitude.

The scheme of the act of Congress, then, is very apparent. It was to secure the connection of the main line, by at least three branches, with the Missouri and Iowa Railroads, and with a railroad running eastwardly from Sioux City in Iowa, either through that State or through Minnesota. An observance of this scheme, we think, will aid in considering the inquiry at what place the act of Congress, and the orders of the President made in pursuance thereof, established the eastern terminus of the Iowa branch. From it may reasonably be inferred that the purpose of Congress was to provide for connections of the branches of the main line of the Union Pacific road with railroads running through the States on the east of the Territory, and to provide for those connections within those States, at points at or near their western boundaries. Thus the northern branch was required to be constructed from Sioux City (which is in the State of Iowa) westward toward the main line; and the southern branch was authorized to build their railroad from the south side of the Kansas River, at its mouth, so as to connect with the Pacific Railroad of Missouri. If, now, the provisions of the act respecting the central or Iowa branch be examined, the same purpose is evident. Those provisions are found in the fourteenth section, and they are as follows:--

'And be it further enacted, That the said Union Pacific Railroad Company is hereby authorized and required to construct a single line of railroad and telegraph from a point on the western boundary of the State of Iowa, to be fixed by the President of the United States, upon the most direct and practicable route, to be subject to his approval, so as to form a connection with the lines of the said company at some point on the one hundredth meridian of longitude aforesaid, from the point of commencement on the western boundary of the State of Iowa.'

This clause contains the only provisions of the act respecting the eastern terminus of the Iowa branch, and it twice defines that terminus as 'a point on the western boundary of the State of Iowa.' The legal boundary of the State is the middle of the channel of the Missouri River. 9 Stat. 52. But it is very evident that Congress did not intend that the road should start from a point in the mid-channel of the river. That would be impossible; and, were it possible, it would not carry out the general design of the act, which, as we have been, was to provide for connections with the eastern railroads then in existence or contemplated. It is conceded by the counsel of the company that Congress ought not to be held to have intended to fix the initial point in the mid-channel of the river, exactly on the line which is the legal boundary of the State. Such a construction of the law, it is acknowledged, would be unreasonable, because it would involve the requirement of an impossibility. But, if Congress did not mean to require a construction of the railroad from the imaginary line which is the legal boundary of Iowa,-namely, from the mid-channel of the river, they must have intended the initial point to be either, on the Iowa shore or on the Nebraska shore. If the Nebraska shore was intended, why was it not mentioned? Why was not the west bank of the Missouri River designated? or why was not the eastern boundary of Nebraska fixed as the point of departure? Still more, why was Iowa mentioned at all? or why was the initial point described as a point on the western boundary of Iowa? It is impossible to give a satisfactory answer to these questions, if the eastern or Iowa shore of the river was not intended to be the terminus of the railroad. Unless it was so intended, no reason is found in the acts of Congress for mentioning Iowa at all. The western shore of the river is no nearer the western legal boundary of Iowa than the eastern shore is; while the latter is, in common understanding, the western boundary of the State. Congress may well be supposed to have used language in accordance with the common understanding. It is common usage to speak of the boundary of a state or county as a river, though the legal boundary may be the middle of the river; and particularly when any thing is to be constructed on such a boundary, which from its nature must be constructed on dry land, would no one understand the place of construction as any other than the shore of the river. It is perfectly legitimate and in accordance with every-day usage to say that a house built in Illinois on the eastern shore of the Mississippi stands on the western boundary of the State, though the legal boundary of the State is the mid-channel of the river. In common understanding, therefore, a point on the western boundary of Iowa would be a point in Iowa on the eastern shore of the Missouri, precisely as a point on the eastern boundary of Nebrasks would be understood to be in Nebraska, on the western shore of the river. The words 'on the boundary of Iowa' are not technical words; and therefore they are to be taken as having been used by Congress in their ordinary signification. Instances are not rare in which statutes have been construed, not literally, but in accordance with the common use of the language employed by the law-makers. Authority to construct a railroad or turnpike from A. to B., or beginning at A. and running to B., is held to confer authority to commence the road at some point within A., and to end it at some point within B. The words from,' 'to,' and at,' are taken inclusively, according to the subject-matter. 1 Mas. 126; 1 Stra. 179; Farmers' Turnpike v. Coventry, 10 Johns. 389. So in the case of The Mohawk Bridge Company v. The Utica and Schenectady R.R. Co., 6 Paige, 554, a similar ruling was made. The city of Schenectady was on the south bank of the Mohawk River, the north bounds of the city being the middle of the channel of the river; yet it was held that a railroad company authorized to build a railroad 'commencing at or near the city of Schenectady, and running thence on the north side of the Mohawk River,' was by those words empowered to build a bridge over the Mohawk, and commence their railroad at or within the city. These decisions bear some analogy to the construction given by the Circuit Court to the phrase 'on the western boundary of Iowa;' and that construction is the only one consistent with the paramount purpose manifested in the act of Congress, to provide for connections with the railroads of the States east of Nebraska Territory,-a purpose to which we have already referred. Unless the Iowa branch of the Union Pacific was intended to commence on the Iowa shore of the Missouri River, its connection with the Iowa railroads would have been impossible. Those roads could not be extended to the Nebraska shore; for the State of Iowa was without power to authorize the erection of a bridge over the river, or even the establishment of a ferry. We do not propose to enter upon a consideration of the question, whether Congress had power to authorize the construction of railroads within a State: it is not necessary for the present case. Even the appellants would shrink from denying the lawful existence of their bridge. What is to be sought now is the intention of Congress, not its power. Did Congress intend the place of connection to be on the eastern shore of the river? That they did is manifest, if they intended any connection; for no other was possible, either with or without the co-operation of Iowa.

In accordance with this understanding of the act of 1862 was the action of the President. The fourteenth section of the act required the company to construct the Iowa branch from a point on the western boundary of Iowa, to be fixed by the President of the United States. In discharging the duty thus imposed, the President, by an executive order, dated Nov. 17, 1863, fixed so much of the western boundary of the State of Iowa as lies between the north and south boundaries of the United States township within which the city of Omaha is situated as the point from which the line of railroad and telegraph should be constructed. This designation was, in one particular, indefinite. While it adhered to the western boundary of Iowa, it left undetermined at what place on that boundary the initial point should be, except that it should be somewhere between the north and south boundaries of a township, those boundaries being six miles apart. The President, therefore, on the seventh day of March, 1864, by a second executive order, made a more definite location. By that order he designated and established the point from which the railroad company was authorized to construct the road as a point 'on the western boundary of Iowa east of and opposite to the east line of section 10, in township 15, north of range 13, east of the 6th principal meridian, in the Territory of Nebraska.' Section 10 is a fractional section, its eastern boundary being the Missouri River. That the President understood this designation as fixing the point on the eastern shore of the river, and within the State of Iowa, is manifest from the message which, two days afterwards, he sent to Congress accompanying a copy of his official orders, in which he declared that the orders fixed the point on the western boundary of Iowa, 'within the limits of the township in Iowa opposite the town of Omaha, in Nebraska.' And such appears to be the plain meaning of the executive orders. The point could not have been 'east of and opposite to the east line of section 10, in township 15' (the section spoken of), if it was on the western shore of the river. It would then have been in Nebraska. The designation by the President was thus in strict conformity with the act of Congress; for, whenever that act spoke of the terminus of the Iowa branch with reference to its location, it described it, not as being in Nebraska, not even as being in the Missouri River, but as on the western boundary of Iowa.

Thus far we have confined our attention to the act of 1862, and to the President's action under it. From that act alone we have deduced the conclusion that the company was authorized and required to build their railroad to the Iowa shore. That authority included within itself power to build a bridge over the Missouri. No express grant to bridge the river was needed. Whatever bridges were necessary on their line were as fully authorized as the line itself; and the company were as much empowered to build one across the Missouri as they were across the Platte or any other river intersecting the route of their road. People v. The Saratoga & Rensselaer R.R. Co., 15 Wend. 130; Springfield v. connecticut River R.R. Co., 4 Cush. 63; Mohawk Bridge Co. v. Utica & Schenectady R.R. Co., ut supra.

But the amendatory act of 1864 is not to be overlooked. It is to be regarded in connection with the act of 1862, and interpreted as a part of it. By its ninth section the company were expressly authorized to construct bridges over the Missouri, and other rivers which their road might pass in its course, for the convenience of their road; and the act declared this authority to be given to enable the company to make convenient and necessary connections with other roads. This enactment may not have been necessary. The power may have been conferred upon the Union Pacific Railroad Company by the act of 1862; and we think it was. But, whether necessary or not it shows clearly that Congress had in view the construction of the railroad to the Iowa shore of the river. No bridge could be constructed without making use of the Iowa shore.

It is well to observe here that the authority was given to the company as a railroad company, and not as a bridge company. The bridge was for the convenience of their road, and to enable them to connect it with other roads. They could build it for no other uses. They were not authorized to use it for other purposes than those of their road. They were not allowed to charge rates of toll which they did not charge upon other portions of their line. If they acquired such a right, is was by subsequent legislation, by the act of 1871, to which we shall refer hereafter; but if, under the acts of 1862 and 1864, the company were authorized to build a railroad bridge across the river, and if such bridge was a part of their road, and not another railroad, the conclusion is irresistible that their road was intended to have its eastern terminus on the Iowa shore of the river.

It is no answer to this to urge that Congress could not have intended to invade a State by chartering a company to build a railroad in part within the State limits. The stubborn fact remains, that Congress did authorize the building of a railroad bridge on land within the territorial limits of the State, and, as necessarily incidental to that, a railroad upon the necessary approaches to the bridge. So, also, Congress authorized building a railroad from Sioux City, in Iowa, across the Missouri River westward. The statute does show a plain intention that the company's railroad should enter the State under its authority; and the twelfth section enacted what should be done whenever the route of the road should cross the boundary of any State or Territory, and authorizes the President of the United States, in case the companies met there and disagreed respecting the location, to determine it.

Our attention has been called to other clauses in the acts of 1862 and 1864, in which the road is spoken of as from the Missouri River to the Pacific coast, or to the navigable waters of the Sacramento, or from Omaha, as indicating that the eastern terminus was intended to be Omaha, or the western shore of the Missouri River. But these clauses have other objects in view than designating the terminus of the road. They are descriptive of the road, but not of its beginning or ending. Whenever the attention of Congress was turned to the eastern terminus alone, and the purpose was to determine its location, there is no variance in the language employed. It is always 'a point on the western boundary of Iowa.' The different forms of expression employed in other sections and for other purposes can have no bearing upon the question.

Again: it is claimed that the contemporaneous construction given to the charter of the company, by its officers and by the officers of the government, tends to show that the terminus was fixed by the statute on the Nebraska side of the river. It must be conceded, that, in a case where the interpretation of an instrument is doubtful, the practical construction given to it by the parties is of weight. But we do not discover that the United States government, or its officers, ever acted upon the theory that the eastern terminus of the road was on the western shore of the river. The officers of the company asserted if for a time, it is true, but not in their practical intercourse with the national government. Indeed, it never became a practical question until the bridge was erected; and from that time to the present the government has asserted that the true terminus of the road was fixed on the Iowa shore. There is nothing, we think, in any contemporaneous construction given to the acts of Congress, which ought to have any weight in determining the question now before us.

Our conclusion, therefore, is, that the initial point of the Iowa branch of the Union Pacific Railroad was fixed by the act of Congress on the Iowa bank of the Missouri River.

If we are correct in this conclusion, it seems to be clear that the bridge over the river, built by the railroad company, is a part of their railroad, and required by law to be so operated. It was commenced in 1869 under the acts of 1862 and 1864. These acts were the only authority the company had at the time of its commencement for building it. It is a railroad bridge, a continuation of the line west of the river; and it connects the road with its required eastern terminus. The acts chartering the company manifest no intention to distinguish between the bridge over the Missouri River and other bridges on the line of their road. If it is not a part of their road, neither is any bridge between the Missouri and the western boundary of Nevada; for the power to build all bridges was given in the same words.

It has been argued, however, that the bridge is not a part of the company's railroad, because it is not located opposite section 10, east of and opposite to which, on the western boundary of Iowa, the President fixed the terminus. It is, however, the only bridge the company has extending their road to the western boundary of Iowa; and clearly they have no authority to build any other. True, it is not opposite section 10; but the company has taken up its road from that section, and now it comes to the river where the bridge is actually constructed. Having abandoned their road, so far as it extended above that point; having commenced their bridge where it is; having applied to Congress for power to mortgage it, and for special power to levy tolls and charges for the use of it; and having obtained those powers,-they are not at liberty now to assert that they have located their bridge at the wrong place. There is nothing, either in the act of 1862 or 1864, or in that of Feb. 24, 1871, which empowers them to build more than one bridge over the Missouri for the Iowa branch; and the latter act contains an implied recognition of their right under the former acts to build their bridge on its present location. There is no intimation in it of a distinct bridge franchise. It grants no power to build a bridge. Its main purpose manifestly was to give the company additional means and privileges for the completion of a structure already authorized, not to enable them to construct a new and independent road. To hold that the bridge is not a part of the road would defeat the plain object Congress had in view in 1862 and 1864,-a continuous line for connection with the Iowa roads. It would be allowing the connection to be made in Nebraska, instead of on the western boundary of Iowa, when the act of 1871 expressly declared that nothing therein should be so construed as to change the eastern terminus of the Union Pacific Railroad from the place where it was then fixed by existing laws. Indeed, that proviso was quite unnecessary if the bridge was not thought to be a part of the railroad connecting the other part with the western boundary of Iowa.

Holding then, as we do, that the legal terminus of the railroad is fixed by law on the Iowa shore of the river, and that the bridge is a part of the railroad, there can be no doubt that the company is under obligation to operate and run the whole road, including the bridge, as one connected and continuous line. This is a duty expressly imposed by the acts of 1862 and 1864, and recognized by that of 1871. What this means it is not difficult to understand. It is a requisition made for the convenience of the public. An arrangement, such as the company has made, by which freight and passengers destined for or beyond the eastern terminus are stopped two or three miles from it and transferred to another train, and again transferred at the terminus, or by which freight and passengers going west from the eastern end of the line must be transferred at Omaha, breaks the road into two lines, and plainly is inconsistent with continuous operation of it as a whole. If not, the injunction of the statute has no meaning. The mandamus awarded in this case, therefore, imposes no duty beyond what the law requires.

Such is our opinion of the merits of this case. A single objection made and urged against the form of proceeding remains to be considered. The appellants contend that the court erred in holding that Hall and Morse, on whose petition the alternative writ was issued, could lawfully become relators in this suit on behalf of the public without the assent or direction of the Attorney-General of the United States, or of the district attorney for the district of Iowa. They were merchants in Iowa, having frequent occasion to receive and ship goods over the company's road; but they had no interest other than such as belonged to others engaged in employments like theirs, and the duty they seek to enforce by the writ is a duty to the public generally. The question raised by the objection, therefore, is, whether a writ of mandamus to compel the performance of a public duty may be issued at the instance of a private relator. Clearly in England it may. Tapping on Mandamus, p. 28, asserts the rule in that country to be, that, 'in general, all those who are legally capable of bringing an action are also equally capable of applying to the Court of King's Bench for the writ of mandamus.' This is true in all cases, it is believed, where the defendant owes a duty, in the performance of which the prosecutor has a peculiar interest; and it is equally true, we think, in case of applications to compel the performance of duties to the public by corporations. In The King v. The Severn & Wye Railway Co., 2 Barn. & Ad. 646, a private individual, without any allegation of special injury to himself, obtained a rule upon the company to show cause why a mandamus should not issue commanding them to lay down again and maintain part of a railway which they had taken up. Under an act of Parliament, the railway was a public highway; and all persons were at liberty to pass and repass thereon, with wagons and other carriages, upon payment of the rates. What the prosecutor complained of was the loss by the public, and particularly by the owners of certain collieries (of which he does not appear to have been one), of the benefit of using the railway taken up. The writ was awarded. It was not even claimed that the intervention of the Attorney-General was needed. Other cases to the same effect are numerous. Clarke v. The Leicestershire & Northamptonshire Union Canal Co., 6 Ad. & El. N. S. 898; 1 Chit. 700.

In this country there has been diversity of decision upon the question whether private persons can sue out the writ to enforce the performance of a public duty, unless the non-performance of it works to them a special injury; and in several of the States it has been decided that they cannot. An application for a mandamus, not here a prerogative writ, has been supposed to have some analogy to a bill in equity for the restraint of a public nuisance. Yet, even in the supposed analogous case, a bill may be sustained to enjoin the obstruction of a public highway, when the injury complained of is common to the public at large, and only greater in degree to the complainants. It was in the Wheeling Bridge Case, 13 How. 518, where the wrong complained of was a public wrong, an obstruction to all navigation of the Ohio River.

The injury to the complainants in that case was no more peculiar to Pennsylvania than is the injury to Hall and Morse in this peculiar and special to them.

There is, we think, a decided preponderance of American authority in favor of the doctrine, that private persons may mave for a mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law-officer. People v. Collins, 19 Wend. 56; County of Pike v. The State, 11 Ill. 202; Ottawa v. The People, 48 id. 233; Hamilton v. The State, 3 Ind. 452; Hall v. The People, 57 N. Y. 307; People v. Halsey, 37 id. 344; State v. The County Judge of Marshall, 7 Iowa, 186; State v. Railway, 33 N. J. Law, 110; Watts v. Carroll Parish, 11 La. Ann. 141. See also Dillon on Mun. Corp., sect. 695, and High on Ex. Rem., sects. 431, 432; Cannon v. Janvier, 3 Houst. 27; State v. Rahway, 33 N. J. Law, 110. The principal reasons urged against the doctrine are, that the writ is prerogative in its nature,-a reason which is of no force in this country, and no longer in England,-and that it exposes a defendant to be harassed with many suits. An answer to the latter objection is, that granting the writ is discretionary with the court, and it may well be assumed that it will not be unnecessarily granted.

There is also, perhaps, a reasonable implication that Congress, when they authorized writs of mandamus to compel the Union Pacific Railroad Company to operate their road according to law, did not contemplate the intervention of the Attorney-General in all cases. The act of 1873 does not prescribe who shall move for the writ, while the Attorney-General is expressly directed to institute the necessary proceedings to secure the performance of other duties of the company. For these reasons, we think the Circuit Court did not err in holding that Hall and Morse were competent to apply for the writ in this case.

The decree of the Circuit Court is affirmed.


text: Talk:Union Pacific Railroad Company v. Hall/Opinion of the Court


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Amory v. Amory (91 U.S. 356)

ERROR to the Supreme Court of the State of New York.

Mr. M. H. Carpenter in support of a motion to advance and dismiss the cause.

Mr. George F. Edmunds, contra.

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

title: Amory v. Amory (91 U.S. 356)


text: Talk:Amory v. Amory (91 U.S. 356)

title: Talk:Amory v. Amory (91 U.S. 356)


text:
Amory v. Amory (91 U.S. 356)/Opinion of the Court

We cannot dismiss a case on motion simply because we may be of the opinion that it has been brought here for delay only. Both parties have the right to be heard on the merits; and one party cannot require the other to come to such a hearing upon a mere motion to dismiss. To dismiss under such circumstances would be to decide that the case had no merits. Neither can we advance a cause for argument for the reason that we may think it has no merits. Further argument may show the contrary.

We can adjudge damages, under sect. 1010 Rev. Stat. and rule 23, in all cases where it appears that a writ of error has been sued out merely for delay. This gives us the only power we have to prevent frivolous appeals, and writs of error; and we deem it not improper to say that this power will be exercised without hesitation in all cases where we find that our jurisdiction has been invoked merely to gain time.

Motion denied.


text: Talk:Amory v. Amory (91 U.S. 356)/Opinion of the Court


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Morsell v. First National Bank

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. J. J. Johnson and Mr. R. K. Elliot for the appellants.

Mr. Enoch Totten, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Morsell v. First National Bank


text: Talk:Morsell v. First National Bank

title: Talk:Morsell v. First National Bank


text: Category:United States Department of Transportation


text:
Morsell v. First National Bank/Opinion of the Court

The question presented for our determination in this case is, whether a judgment at law is a lien upon real estate in the city of Washington, which, before the judgment was rendered, had been conveyed to trustees with a power of sale to secure the payment of the debts of the grantor described in the deed of trust.

The facts, so far as it is necessary to state them, are few and simple:--

On the 4th of November, 1867, the appellant, Morsell, executed a deed of trust to Flodoardo Howard to secure the payment of certain promissory notes held by the cestuis que trust, as set forth in the deed.

On the 21st of October, 1869, Morsell executed a like deed to Frederick W. Jones and William R. Woodward to secure the payment to the Co-operative Building and Deposit Association of the sum of $3,050 and future advances.

On the 24th of January, 1871, the appellee, the First National Bank of Washington, recovered a judgment against Morsell for $800, with interest from the 17th of May, 1869, and costs. Execution was issued upon this judgment, and returned nulla bona.

On the 10th of February, 1871, Means, Skinner, & Co. recovered a judgment against Morsell for $267.68, with interest as specified, and costs. Execution was returned nulla bona also upon this judgment.

On the 1st of March, 1871, Morsell executed to Frederick W. Jones and Joseph R. Edson another deed to secure the payment to the association above mentioned of the sum of $1,060 and future advances.

All these deeds were of the same premises; to wit, lot No. 44, in reservation No. 10, in the city of Washington.

Advances were made to Morsell by the association named from time to time, after the execution of the deed of trust of the 21st of October, 1869, to the amount, in the aggregate, of $2,950. The latest advance was one of $500, made on the 11th of January, 1871. The entire amount claimed to be secured by this deed was, therefore, $6,000.

The amount secured to the association by the deed of the 1st of March, 1871, was $1,500. The latest advance under this deed was made on the 27th of April, 1871. There is no controversy as to these particulars.

On the 22d of September, 1871, the bank, in behalf of itself and such other judgment creditors of Morsell as might choose to come in and be made parties, filed this bill. It was subsequently amended in the prayer. It brought the proper parties before the court, and prayed that the premises described in the deeds might be ordered to be sold, the proceeds be brought into court, and the fund distributed according to the rights of the parties.

Means, Skinner, & Co., by a petition, came in under this bill. The premises were sold pursuant to a decree, and yielded, after deducting costs and charges, the sum of $8,235.22 for distribution. The fund was held subject to the further order of the court. No question was made as to the preference claimed for the amount due to the cestuis que trust under the deed to Howard. But the balance left after discharging that liability was insufficient to pay the amount due to the association, laying the judgments out of view. Hence a controversy arose between the association and the judgment creditors, each party claiming priority of payment out of the fund. The auditor of the court, to whom the case was referred, reported in favor of the association. The other parties excepted. The court in general term held that the association was entitled to priority to the extent of $6,000, the amount secured by the deed of trust of the 21st of October, 1869; and that the judgments were to be next in the order of payment, both being prior in date to the last deed of trust. This left nothing applicable to the debt secured by the latter. The association thereupon removed the case by appeal to this court.

The 'Act concerning the District of Columbia,' of the 27th of February, 1801, 2 Stat. 103, declared, 'That the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of said District which was ceded by that State to the United States and by them accepted as aforesaid.'

A part of the laws so adopted was the common law. Van Ness v. Hyatt, 13 Pet. 298. It was well settled in the English jurisprudence, that, according to the common law, no equitable interest in property of any kind was lible to execution. Scott v. Schooley, 8 East, 467; Metcalf v. Schooley, 5 Bos. & Pul. 461; Lyster v. Dolland, 1 Ves. Jr. 431.

Judgments by the common law were not liens upon real estate. The lien arose from the power to issue a writ of elegit. That power was given by the statute of Westminster. C. 18, 13 Ed. I. The right to extend the land fixed the lien upon it. Massingal v. Downs, 7 How. 765; Shrew v. Jones, 2 McLean, 80; United States v. Morrison, 4 Pet. 136; United States v. Wooster, 2 Brock. 252; Ridge v. Prather, 1 Blackf. 401.

If the judgment debtor died after the elegit was executed upon his lands, and before the judgment was satisfied, a court of equity, upon being applied to, would decree a sale of the land upon which it had been executed, and payment of the judgment out of the proceeds. Stillman v. Ashdown, 1 Atk. 607; Tyndal v. Warre, 3 Jac. 212. The same principle was adopted by Lord Redesdale into the equity jurisprudence of Ireland. O'Gorman v. Comyn, 2 Sch. & Lef. 130; O'Fallon v. Dollon, id. 18.

The reason why lands were not liable to be taken in execution at common law is thus stated by Bacon (2 Bac. Ab. Execution, A): 'The lands were not liable because they were obliged to answer the duties of the feudal lord, and a new tenant could not be forced upon him without his consent in the alienation; and the person was not liable because he was obliged by the tenure to serve the king in the wars, and at home the several lords, according to the distinct nature of the tenure.'

The premises in question are situated in that part of the District of Columbia ceded by Maryland to the United States. Our attention has been called to no statute passed by Maryland before the cession, or by Congress since, which affects the question before us. We assume that there is none. That question has been definitively settled by this court. In Van Ness v. Hyatt, supra, it was held, after a very elaborate examination of the subject, that, according to the laws of Maryland at the time of the cession, the equity of redemption of a mortgagor could not be sold under execution upon a judgment against him.

In The Bank of the Metropolis v. Guttschick, 14 Pet. 19, where the controversy involved a deed of trust of a lot in the city of Washington, it was said, 'The only right of the grantor in the deed is the right to whatever surplus may remain, after the sale, of the money for which the property sold.' It is clear that there could be no lien of a judgment upon such a chose in action, as well as that it could not be sold upon execution. The case of Smith's Lessee v. McCann, 24 How. 398, is an instructive one upon the subject we are considering. It was a case from Maryland; and the opinion of the court was delivered by Chief Justice Taney, who was, of course, well versed in Maryland law. There a sale had been made under a judgment and execution against a party to whom the premises had been conveyed in trust for the benefit of his wife and children. The action was ejectment by the purchaser. It was held that the statute of 5 Geo. II. which was in force in Maryland at the time of the cession, and which made 'houses, land, negroes, and other hereditaments and real estate,' liable to execution 'in like manner as personal estate,' &c., 'did not interfere with the established distinction between law and equity, and that an equitable interest could not be seized under a ''fi. fa.'' until the law of Maryland was in this respect altered by the act of the assembly of the State in 1810.'

This act expressly authorized the sale of equitable interests in real estate under execution. This enactment carried with it an implication, equivalent, under the circumstances, to an express declaration, that it could not be done before. Such, in the case last referred to, is stated to have been the law of Mayland up to that time. No such act has been passed by Congress. The law in the Maryland part of the ceded territory has remained as it was at the time of the cession. Other authorities to the same effect with those we have considered might be cited from the adjudications of Maryland and other States; but it is unnecessary to pursue the subject further.

The judgments in no wise affected the trust premises until the bill was filed. That created a lien in favor of the judgment creditors. There was none before. This was posterior to the execution of both the deeds of trust in favor of the association, and to all the advances made under them.

The court below was clearly in error in sustaining the exception to the auditor's report, and in giving priority of payment to the judgments over the amount secured by the last deed of trust.

The decree is, therefore, reversed; and the cause will be remanded with directions to overrule the exception to the auditor's report, and to enter a decree in conformity with this opinion.


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


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Arthur v. Cumming

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

Mr. Assistant Attorney-General Edwin B. Smith for the plaintiff in error.

Mr. George S. Sedgwick and Mr. Stephen G. Clarke, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Arthur v. Cumming


text: Talk:Arthur v. Cumming

title: Talk:Arthur v. Cumming


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Arthur v. Cumming/Opinion of the Court

The defendants in error were the plaintiffs in the court below. They claim that they were the importers of certain burlaps, upon which the duty chargeable by law was thirty per cent ad valorem; that the collector insisted the goods were 'oil-cloth foundations,' upon which the duty is forty per cent ad valorem, and compelled them to pay accordingly. They paid under protest, and brought this suit to recover back the alleged excess of ten per cent. Under the instructions of the court, a verdict and judgment were given in their favor. The collector thereupon sued out this writ of error.

The case arises under the fourth section of the act of June 6, 1872 (17 Stat. 232), and turns upon the construction to be given to that section with respect to the particulars here in controversy.

That section declares, that after the 1st of August, 1872, in lieu of the duties theretofore levied upon the articles mentioned in the section, there should be paid upon those articles imported from foreign countries the following duties; to wit:--

'On all burlaps and like manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, except such as may be suitable for bagging for cotton, thirty per centum ''ad valorem. On all oil-cloth foundations or floor-cloth canvas, made of flax, hemp, or jute, or of which flax, hemp, or jute shall be the component material of chief value, forty per centum ad valorem''. On all bags, cotton-bags, and bagging, and all other like manufactures not herein provided for, except bagging for cotton, composed wholly or in part of flax, hemp, jute, gunny-cloth, gunny-bags, or other material, forty per centum ad valorem.'

All the testimony produced upon the trial is embodied in the bill of exceptions. It was introduced by the plaintiffs. The United States adduced none.

The rule to be followed in the construction of revenue statutes in cases like this is well settled in this court. It is, that the descriptive terms applied to articles of commerce shall be understood according to the acceptation given to them by commercial men in our own ports at the time of the passage of the act in which they are found. United States v. Two Hundred Chests of Tea, 9 Wheat. 230; Elliot v. Swartout, 10 Pet. 151; Curtis v. Martin, 3 How. 106.

The statute here in question declares that 'on all burlaps and like manufactures of flax, jute, or hemp,. . . except such as may be suitable for bagging for cotton, a duty of thirty per centum ad valorem shall be paid.'

The mercantile testimony in the record shows that the articles in question were 'burlaps,' that they were a 'manufacture of jute,' and that they were not suitable for bagging for cotton. The exception may, therefore, be laid out of view. The language of the statute is clear and explicit. It is, 'all burlaps' made of jute, &c. The mercantile proof brings the case exactly within this category. The fact that the burlaps were suitable, and could be and were used for oil-cloth foundations, or for any other purpose except bagging for cotton, is entirely immaterial. The maxim, Expressio unius, exclusio alterius, applies with cogent effect.

This view is conclusive, unless it is overcome by something else found in the statute.

The counsel for the United States insists that it is answered by the next category defined in the section; which is, that 'on all oil-cloth foundations or floor-cloth canvas made of flax, jute, or hemp,' a duty shall be levied 'of forty per cent ad valorem.'

Here, again, we must look to the mercantile testimony in the record. It is there stated that floor-cloth canvas is used exclusively for the manufacture of floor oil-cloth. 'It has a harder twist, is heavier, is a more expensive article than burlaps, and is not calendered as burlaps are. . . . Foor-cloth canvas is a commercial term implying a well-known article of merchandise thus described; and a merchant, in speaking of foundations for oil-cloths, would be considered to refer to 'floor-cloth canvas.' Fllor-cloth canvas is not called burlaps, nor is burlaps called floor-cloth canvas.'

This testimony establishes two things: first, that the terms oil-cloth foundations and floor-cloth canvas, as used in the statute, mean in commerce the same thing; and, second, that the thing so understood is not burlaps, but a thing entirely distinct and different from that article.

The second clause of the statute in no wise affects the first one. There is, therefore, no just ground for maintaining that the goods imported by the plaintiffs below were dutiable as oil-cloth foundations, not as burlaps.

The researches of the counsel for the defendants in error have brought to our attention many instances in which two phrases with the like conjunction between them have been used to designate the same thing. In those cases it was obviously done to make clear and certain the meaning of the legislature, and to leave no room for doubt upon the subject. Such in this section seems to have been the purpose of Congress. The phrase oil-cloth foundations would not necessarily import the article known in commerce as floor-cloth canvas; nor would the phrase floor-cloth canvas necessarily import an article to be used for 'oil-cloth foundations.'

Considering the juxtaposition and connection in which the two phrases are found, and letting in upon them the light of the mercantile evidence, the inference is clear that Congress used them, and intended that they should be understood, as convertible terms. This gives all the certainty and freedom from doubt which could be effected by the largest circumlocution.

It evinces unmistakably the purpose that the floor-cloth canvas which is known in commerce as the article used for oil-cloth foundations should pay a duty of forty per cent ad valorem. The two designations have no effect beyond this result.

This examination of the statute and the record leaves no doubt in our minds upon the questions presented for our consideration.

As the case stood before the jury, the plaintiffs were clearly entitled to a verdict. The court, therefore, properly directed the jury to find accordingly. Shugart v. Allens, 1 Wall. 359.

It would have been error to refuse so to instruct them.

The judgment of the Circuit Court is affirmed.

title: Arthur v. Cumming/Opinion of the Court


text: Talk:Arthur v. Cumming/Opinion of the Court


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The D. R. Martin

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

This suit was brought by Barney, the libellant, to recover damages for his wrongful eviction from the steamboat 'D. R. Martin.' He demanded in his libel $25,000 damages, but in the District Court recovered only $500. From this decree the claimant appealed. Barney did not appeal. The Circuit Court reversed the decree of the District Court, and dismissed the libel. From this decree of the Circuit Court Barney appealed to this court.

Mr. Thomas Young for the appellee moved to dismiss the appeal because the matter in dispute did not exceed $2,000.

Mr. John M. Guiteau, contra.

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

title: The D. R. Martin


text: Talk:The D. R. Martin

title: Talk:The D. R. Martin


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The D. R. Martin/Opinion of the Court

Barney, having failed to appeal from the decree of the District Court, is concluded by the amount found there in his favor. He appears upon the record as satisfied with what was done by that court. In the Circuit Court, the matter in controversy was his right to recover the sum which had been awarded him as damages. If that court had decided against the claimant, he could not have asked an increase of his damages. Stratton v. Jarvis, 8 Pet. 9, 10; Houseman v. Schooner North Carolina, 15 id. 40. As the matter in dispute here is that which was in dispute in the Circuit Court, it follows that the amount in controversy between the parties in the present state of the proceedings is not sufficient to give us jurisdiction. Gordon v. Ogden, 3 Pet. 34; Smith v. Honey, id. 469; Walker v. United States, 4 Wall. 164.

The appeal is dismissed.

title: The D. R. Martin/Opinion of the Court


text: Talk:The D. R. Martin/Opinion of the Court


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The Juniata

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

The decree of the Circuit Court in this case was signed Feb. 13, 1874. An appeal was taken therefrom, and the record filed here on the thirteenth day of the following October.

Mr. Thomas J. Durant filed a certified copy of the order of the said Circuit Court, bearing date June 1, 1875, for a commission to take the deposition of certain witnesses to be used here, and moved that the depositions taken thereunder be made a part of the record.

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

title: The Juniata


text: Talk:The Juniata

title: Talk:The Juniata


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The Juniata/Opinion of the Court

The depositions in question were taken since the appeal, under a commission issued from the Circuit Court. Further proof in the case has not been ordered by this court. No such order would have been granted if application therefor had been made, unless a sufficient excuse was shown for not taking the evidence in the usual way before the courts below. This was the rule established in the case of The Mabey, 10 Wall. 419. We cannot admit depositions taken under a commission from the Circuit Court, except upon a similar showing. That has not been made. Leave is granted to renew the motion if this defect can be supplied.

Motion denied,

title: The Juniata/Opinion of the Court


text: Talk:The Juniata/Opinion of the Court

title: Talk:The Juniata/Opinion of the Court


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Kohl v. United States

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

This was a proceeding instituted by the United States to appropriate a parcel of land in the city of Cincinnati as a site for a post-office and other public uses.

The plaintiffs in error owned a perpetual leasehold estate in a portion of the property sought to be appropriated. They moved to dismiss the proceeding on the ground of want of jurisdiction; which motion was overruled. They then demanded a separate trial of the value of their estate in the property; which demand the court also overruled. To these rulings of the court the plaintiffs in error here excepted. Judgment was rendered in favor of the United States.

There are three acts of Congress which have reference to the acquisition of a site for a post-office in Cincinnati. The first, approved March 2, 1872, 17 Stat. 39, is as follows:--

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to purchase a central and suitable site in the city of Cincinnati, Ohio, for the erection of a building for the accommodation of the United States courts, custom-house, United States depository, post-office, internal-revenue and pension offices, at a cost not exceeding three hundred thousand dollars; provided that no money which may hereafter be appropriated for this purpose shall be used or expended in the purchase of said site until a valid title thereto shall be vested in the United States, and until the State of Ohio shall cede its jurisdiction over the same, and shall duly release and relinquish to the United States the right to tax or in any way assess said site and the property of the United States that may be thereon during the time that the United States shall be or remain the owner thereof.'

In the Appropriation Act of June 10, 1872, 17 Stat. 352, a further provision was made as follows:--

'To commence the erection of a building at Cincinnati, Ohio, for the accommodation of the United States courts, custom-house, United States depository, post-office, internal-revenue and pension offices, and for the purchase, at private sale or by condemnation, of ground for a site therefor,-the entire cost of completion of which building is hereby limited to two million two hundred and fifty thousand dollars (inclusive of the cost of the site of the same), seven hundred thousand dollars; and the act of March 12, 1872, authorizing the purchase of a site therefor, is hereby so amended as to limit the cost of the site to a sum not exceeding five hundred thousand dollars.'

And in the subsequent Appropriation Act of March 3, 1873, 17 Stat. 523, a further provision was inserted as follows:--

'For purchase of site for the building for custom-house and post-office at Cincinnati, Ohio, seven hundred and fifty thousand dollars.'

Mr. E. W. Kittredge for plaintiffs in error.

1. For upwards of eighty years, no act of Congress was passed for the exercise of the right of eminent domain in the States, or for acquiring property for Federal purposes otherwise than by purchase, or by appropriation under the authority of State laws in State tribunals. A change of policy by Congress in this regard should not be supposed, unless the act is explicit. We do not raise the question as to the existence of the right of eminent domain in the national government; but Congress has never given to the Circuit Court jurisdiction of proceedings for the condemnation of property brought by the United States in the assertion or enforcement of that right.

In view of the uniform practice of the government, the provision in the act of Congress 'for the purchase at private sale or by condemnation' means that the land was to be obtained under the authority of the State government in the exercise of its power of eminent domain. This is apparent from the language of the same section of the act of Congress of June 10, 1872, which appropriated a further sum for the 'purchase' of a site in Cincinnati, and also appropriated money 'to obtain by purchase, or to obtain by condemnation in the courts of the State of Massachusetts,' a site for a post-office in Boston.

In this case, the State delegates its sovereign power of eminent domain. The United States, if it accepts this grant of power, accepts it as other corporations do, as the agent of the State, and must exercise it in the mode and by the tribunal which the State has prescribed.

2. If the proceeding was properly brought in the Circuit Court, then the act of Congress of June 1, 1872, 17 Stat. 522, requires that it shall conform to the provisions of the law of the State in a like proceeding in a State court. The eighth section of the act of Ohio of April 23, 1872, 69 Ohio Laws, 88, secures to the owner of 'each separate parcel' of property a separate trial, verdict, and judgment. The court below erred in refusing this demand of the plaintiff.

Mr. Assistant Attorney-General Edwin B. Smith, contra.

1. The right of eminent domain is an 'inseparable incident of sovereignty.' Giesy v. C. W. & T. R.R. Co., 4 Ohio St. 323, 324; West River Bridge v. Dix, 6 How. 507; 2 Kent, 339; Cooley, Const. Lim. 526.

Of course the right of the United States is superior to that of any State. Dobbins v. Comms., 16 Pet. 447.

The authority to purchase includes the right of condemnation. 4 Kent's Com. 372; Burt v. ''Ins. Co.'', 106 Mass. 364; 7 Opinions of Att'y-Gen. 114.

Congress, by the use of the term 'condemnation,' indicated an expectation that it might and would be resorted to.

The legislature of Ohio concurred in this view of the power and necessity of such action, and passed an act of expropriation. 69 Ohio Laws, 81. But the right of a State to act as an agent of the Federal government, in actually making the seizure, has been denied. 23 Mich. 471.

The power to establish post-offices includes the right to acquire sites therefor, and by appropriation if necessary. Dickey v. Turnpike Co., 7 Dana, 113; 2 Story on Const., sect. 1146.

Original cognizance 'of all suits of a civil nature at common law or in equity,' where the United States are plaintiffs or petitioners, is given to the Circuit Court of the United States.

'The term [suit] is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords.' 2 Pet. 464.

No provision of local law confining a remedy to a State court can affect a suitor's right to resort to the Federal tribunals. Hyde v. Stone, 20 How. 170; Payne v. Hook, 7 Wall. 425; Railway Co. v. Whitton, 13 id. 270.

Therefore the United States had the right to pursue in the Circuit Court the remedy given by the legislature of Ohio, 70 Ohio Laws, 36.

2. The power to consolidate different suits by various parties, so as to determine a general question by a single trial, is expressly given by act of July 22, 1833. 3 Stat.; 21 R. S., ch. 18, sect. 921, p. 175.

The statute of Ohio, 69 Ohio Laws, 88, requires that the trial be had as to each parcel of land taken, not as to separate interest in each parcel.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Kohl v. United States


text: Talk:Kohl v. United States

title: Talk:Kohl v. United States


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

It has not been seriously contended during the argument that the United States government is without power to appropriate lands or other property within the States for its own uses, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. These are needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a State, or even upon that of a private citizen. This cannot be. No one doubts the existence in the State governments of the right of eminent domain,-a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the government, either mediately or immediately, and independent of the consideration whether they would escheat to the government in case of a failure of heirs. The right is the offspring of political necessity; and it is inseparable from sovereignty, unless denied to it by its fundamental law. Vattel, c. 20, 34; Bynk., lib. 2, c. 15; Kent's Com. 338-340; Cooley on Const. Lim. 584 et seq. But it is no more necessary for the exercise of the powers of a State government than it is for the exercise of the conceded powers of the Federal government. That government is as sovereign within its sphere as the States are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as full and complete as is the power of the States over the subjects to which their sovereignty extends. The power is not changed by its transfer to another holder.

But, if the right of eminent domain exists in the Federal government, it is a right which may be exercised within the States, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution. In Ableman v. Booth, 21 How. 523, Chief Justice Taney described in plain language the complex nature of our government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action prescribed by the Constitution of the United States, independent of the other. Neither is under the necessity of applying to the other for permission to exercise its lawful powers. Within its own sphere, it may employ all the agencies for exerting them which are appropriate or necessary, and which are not forbidden by the law of its being. When the power to establish post-offices and to create courts within the States was conferred upon the Federal government, included in it was authority to obtain sites for such offices and for court-houses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one of those means well known when the Constitution was adopted, and employed to obtain lands for public uses. Its existence, therefore, in the grantee of that power, ought not to be questioned. The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grants. The fifth amendment contains a provision that private property shall not be taken for public use without just compensation. What is that but an implied assertion, that, on making just compensation, it may be taken? In Cooley on Constitutional Limitations, 526, it is said,--

'So far as the general government may deem it important to appropriate lands or other property for its own purposes, and to enable it to perform its functions,-as must sometimes be necessary in the case of forts, light-houses, and military posts or roads, and other conveniences and necessities of government, the general government may exercise the authority as well within the States as within the territory under its exclusive jurisdiction: and its right to do so may be supported by the same reasons which support the right in any case; that is to say, the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of cousent of private parties or of any other authority.'

We refer also to Trombley v. Humphrey, 23 Mich. 471; 10 Pet. 723; Dickey v. Turnpike Co., 7 Dana, 113; McCullough v. Maryland, 4 Wheat. 429.

It is true, this power of the Federal government has not heretofore been exercised adversely; but the non-user of a power does not disprove its existence. In some instances, the States, by virtue of their own right of eminent domain, have condemned lands for the use of the general government, and such condemnations have been sustained by their courts, without, however, denying the right of the United States to act independently of the States. Such was the ruling in Gilmer v. Lime Point, 18 Cal. 229, where lands were condemned by a proceeding in a State court and under a State law for a United States fortification. A similar decision was made in Burt v. ''The Merchants' Ins. Co.'', 106 Mass. 356, where land was taken under a State law as a site for a post-office and subtreasury building. Neither of these cases denies the right of the Federal government to have lands in the States condemned for its uses under its own power and by its own action. The question was, whether the State could take lands for any other public use than that of the State. In Trombley v. Humphrey, 23 Mich. 471, a different doctrine was asserted, founded, we think, upon better reason. The proper view of the right of eminent domain seems to be, that it is a right belonging to a sovereignty to take private property for its own public uses, and not for those of another. Beyond that, there exists no necessity; which alone is the foundation of the right. If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised. The consent of a State can never be a condition precedent to its enjoyment. Such consent is needed only, if at all, for the transfer of jurisdiction and of the right of exclusive legislation after the land shall have been acquired.

It may, therefore, fairly be concluded that the proceeding in the case we have in hand was a proceeding by the United States government in its own right, and by virtue of its own eminent domain. The act of Congress of March 2, 1872, 17 Stat. 39, gave authority to the Secretary of the Treasury to purchase a central and suitable site in the city of Cincinnati, Ohio, for the erection of a building for the accommodation of the United States courts, custom-house, United States depository, postoffice, internal-revenue and pension offices, at a cost not exceeding $300,000; and a proviso to the act declared that no money should be expended in the purchase until the State of Ohio should cede its jurisdiction over the site, and relinquish to the United States the right to tax the property. The authority here given was to purchase. If that were all, it might be doubted whether the right of eminent domain was intended to be invoked. It is true, the words 'to purchase' might be construed as including the power to acquire by condemnation; for, technically, purchase includes all modes of acquisition other than that of descent. But generally, in statutes as in common use, the word is employed in a sense not technical, only as meaning acquisition by contract between the parties, without governmental interference. That Congress intended more than this is evident, however, in view of the subsequent and amendatory act passed June 10, 1872, which made an appropriation 'for the purchase at private sale or by condemnation of the ground for a site' for the building. These provisions, connected as they are, manifest a clear intention to confer upon the Secretary of the Treasury power to acquire the grounds needed by the exercise of the national right of eminent domain, or by private purchase, at his discretion. Why speak of condemnation at all, if Congress had not in view an exercise of the right of eminent domain, and did not intend to confer upon the secretary the right to invoke it?

But it is contended on behalf of the plaintiffs in error that the Circuit Court had no jurisdiction of the proceeding. There is nothing in the acts of 1872, it is true, that directs the process by which the contemplated condemnation should be effected, or which expressly authorizes a proceeding in the Circuit Court to secure it. Doubtless Congress might have provided a mode of taking the land, and determining the compensation to be made, which would have been exclusive of all other modes. They might have prescribed in what tribunal or by what agents the taking and the ascertainment of the just compensation should be accomplished. The mode might have been by a commission, or it might have been referred expressly to the Circuit Court; but this, we think, was not necessary. The investment of the Secretary of the Treasury with power to obtain the land by condemnation, without prescribing the mode of exercising the power, gave him also the power to obtain it by any means that were competent to adjudge a condemnation. The Judiciary Act of 1789 conferred upon the circuit courts of the United States jurisdiction of all suits at common law or in equity, when the United States, or any officer thereof, suing under the authority of any act of Congress, are plaintiffs. If, then, a proceeding to take land for public uses by condemnation may be a suit at common law, jurisdiction of it is vested in the Circuit Court. That it is a 'suit' admits of no question. In Weston v. Charleston, 2 Pet. 464, Chief Justice Marshall, speaking for this court, said, 'The term [suit] is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceeding may be various; but, if a right is litigated in a court of justice, the proceeding by which the decision of the court is sought is a suit.' A writ of prohibition has, therefore, been held to be a suit; so has a writ of right, of which the Circuit Court has jurisdictio (Green v. Liter, 8 Cranch, 229); so has ''habeas corpus. Holmes v. Jamison'', 14 Pet. 564. When, in the eleventh section of the Judiciary Act of 1789, jurisdiction of suits of a civil nature at common law or in equity was given to the circuit courts, it was intended to embrace not merely suits which the common law recognized as among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined as distinguished from rights in equity, as well as suits in admiralty. The right of eminent domain always was a right at common law. It was not a right in equity, nor was it even the creature of a statute. The time of its exercise may have been prescribed by statute; but the right itself was superior to any statute. That it was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury. It is difficult, then, to see why a proceeding to take land in virtue of the government's eminent domain, and determining the compensation to be made for it, is not, within the meaning of the statute, a suit at common law, when initiated in a court. It is an attempt to enforce a legal right. It is quite immaterial that Congress has not enacted that the compensation shall be ascertained in a judicial proceeding. That ascertainment is in its nature at least quasi judicial. Certainly no other mode than a judicial trial has been provided.

It is argued that the assessment of property for the purpose of taking it is in its nature like the assessment of its value for the purpose of taxation. It is said they are both valuations of the property to be made as the legislature may prescribe, to enable the government, in the one case, to take the whole of it, and in the other to take a part of it for public uses; and it is argued that no one but Congress could prescribe in either case that the valuation should be made in a judicial tribunal or in a judicial proceeding, although it is admitted that the legislature might authorize the valuation to be thus made in either case. If the supposed anslogy be admitted, it proves nothing. Assessments for taxation are specially provided for, and a mode is prescribed. No other is, therefore, admissible. But there is no special provision for ascertaining the just compensation to be made for land taken. That is left to the ordinary processes of the law; and hence, as the government is a suitor for the property under a claim of legal right to take it, there appears to be no reason for holding that the proper Circuit Court has not jurisdiction of the suit, under the general grant of jurisdiction made by the act of 1789.

The second assignment of error is, that the Circuit Court refused the demand of the defendants below, now plaintiffs in error, for a separate trial of the value of their estate in the property. They were lessees of one of the parcels sought to be taken, and they demanded a separate trial of the value of their interest; but the court overruled their demand, and required that the jury should appraise the value of the lot or parcel, and that the lessees should in the same trial try the value of their leasehold estate therein. In directing the course of the trial, the court required the lessor and the lessees each separately to state the nature of their estates to the jury, the lessor to offer his testimony separately, and the lessees theirs, and then the government to answer the testimony of the lessor and the lessees; and the court instructed the jury to find and return separately the value of the estates of the lessor and the lessees. It is of this that the lessees complain. They contend, that whether the proceeding is to be treated as founded on the national right of eminent domain, or on that of the State, its consent having been given by the enactment of the State legislature of Feb. 15, 1873 (70 Ohio Laws, 36, sect. 1), it was required to conform to the practice and proceedings in the courts of the State in like cases. This requirement, it is said, was made by the act of Congress of June 1, 1872. 17 Stat. 522. But, admitting that the court was bound to conform to the practice and proceedings in the State courts in like cases, we do not perceive that any error was committed. Under the laws of Ohio, it was regular to institute joint proceeding against all the owners of lots proposed to be taken (Giesy v. C. W. & T. R.R. Co., 4 Ohio St. 308); but the eighth section of the State statute gave to 'the owner or owners of each separate parcel' the right to a separate trial. In such a case, therfore, a separate trial is the mode of proceeding in the State courts. The statute treats all the owners of a parcel as one party, and gives to them collectively a trial separate from the trial of the issues between the government and the owners of other parcels. It hath this extent; no more. The court is not required to allow a separate trial to each owner of an estate or interest in each parcel, and no consideration of justice to those owners would be subserved by it. The Circuit Court, therefore, gave to the plaintiffs in error all, if not more than all, they had a right to ask.

The judgment of the Circuit Court is affirmed.


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


text:
Romie v. Casanova

ERROR to the Supreme Court of the State of California.

This is an action of ejectment, commenced in the District Court for the Third Judicial District of the State of California.

That court found as follows:--

'First, That on the seventeenth day of December, 1845, Felix Buelna was alcalde of the pueblo de San Jos e, and, as such, granted and conveyed in fee to Bicenta Padia a lot of land in said pueblo, fifty varas in front and one hundred varas in depth, and on that day measured the same, and delivered to said Padia the possession thereof; and that said Padia shortly afterwards and within one year thereafter enclosed said lot with a fence, and lived upon and cultivated the same.

'Second, That afterwards, and before the commencement of this action, said Bicenta Padia sold and conveyed said lot of land to defendant, Teresa Casanova; and that she is now, and was at the time of the commencement of this action, and ever since has been, the owner in fee thereof.

'Third, That said lot so granted and conveyed to said Padia is situated in the city of San Jos e, within the boundaries named in the complaint herein, immediately south of the lot known as the Case na lot, and formerly known as the Buelna lot, and latterly occupied by Meserve, fronting on the old Monterey road fifty varas, and extending back one hundred varas westerly.

'Fourth, That, at the time of the commencement of this action, defendant, Teresa Casanova, with her husband, Francisco Casanova (now deceased), was in possession of said lot of land granted and delivered to said Padia, but not of any other part of the premises described in the complaint of plaintiff.

'Fifth, That the present city of San Jos e is the former pueblo de San Jos e; that the title of said city to the lands within her boundaries, claimed under grant from the Spanish government, has been finally confirmed to said city by the courts and authorities of the United States.

'Sixth, That defendant, Teresa Casanova, is now, and was at the commencement of this action, the owner in fee of the said lot of land granted to Padia, and located as aforesaid; and that the plaintiffs are not and never were the owners, nor was any one of them the owner thereof or any part thereof.'

The court found, as conclusions of law, that plaintiffs were not entitled to judgment against defendant, Teresa Casanova, for the premises sued for, or any part thereof, and that said defendant, Teresa Casanova, was entitled to judgment against plaintiffs for her costs, and that she is the owner of said premises occupied by her as above described; and gave judgment accordingly.

On appeal to the Supreme Court of the State of California, the judgment of the District Court was affirmed: whereupon the plaintiffs sued out this writ of error.

Submitted on printed arguments by Mr. S. O. Houghton and Mr. John Reynolds for the plaintiffs in error, and by Mr. John A. Grow, contra.

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

title: Romie v. Casanova


text: Talk:Romie v. Casanova

title: Talk:Romie v. Casanova


text:
Romie v. Casanova/Opinion of the Court

No Federal question is presented by the record in this case. The action was brought to recover the possession of certain lands. Both parties claimed title from the city of San Jose; and the question to be determined was, which of the two had actually obtained a grant of the particular premises in controversy. The title of the city was not drawn in question. Even if it depended upon the treaty of Guadaloupe Hidalgo and the several acts of Congress to ascertain and settle private land claims in California, the case would not be different. Both parties admit that title, and their litigation extends only to the determination of the rights which they have severally acquired under it.

The writ is dismissed.

title: Romie v. Casanova/Opinion of the Court


text: Talk:Romie v. Casanova/Opinion of the Court


text:
The Dove (91 U.S. 381)

APPEAL from the Circuit Court of the United States for the Eastern District of Michigan.

The facts are stated in the opinion of the court.

Mr. H. F. Canfield and Mr. D. B. Duffield for the appellant.

Mr. Ashley Pond and Mr. W. A. Moore, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The Dove (91 U.S. 381)


text: Talk:The Dove (91 U.S. 381)

title: Talk:The Dove (91 U.S. 381)