text:
Huff v. Doyle/Opinion of the Court

This is a writ of error to the Supreme Court of the State of California, which brings here for review a judgment of that court concerning a title to land dependent on the act of Congress granting lands to that State for school purposes, of March 3, 1853, and the act of July 23, 1866, on the same subject. 10 Stat. 244; 14 id. 218.

By the sixth section of the first-mentioned act, the State was granted every sixteenth and thirty-sixth section of the public land, for school purposes, with an exception of lands which for various reasons ought not to be so granted; and by the seventh section, the State was authorized to select other lands in lieu of any section or part of section sixteen or thirty-six which fell within any of these exceptions. The act which made these grants was the first which provided for the extension to California of the system of surveys, sales, and pre-emption of public lands so long established in other States and Territories. No surveys had then been made; and it was obvious, that, until they were made, and the precise locality of each township and of the sixteenth and thirty-sixth sections of the township was thus ascertained, it could not be known whether they came within any of the exceptions to the grant, or whether any right of selection in lieu of them had accrued. The State of California, impatient of the delay of the United States authorities in making these surveys, undertook to perform that duty herself; and, assuming from data furnished by her own surveys that a great many acres of the sixteenth and thirty-sixth sections were within one or the other of the exceptions of the granting clause, for which the State was to select other lands, the legislature authorized selections and locations to be made in lieu thereof. according to State surveys. The land in controversy was so selected by the State and sold to plaintiff, who settled on it in 1865, and received from the State a certificate of sale.

The officers of the Land Department, when the matter was brought to their attention, refused to recognize the surveys made by the State, or to acknowledge the validity of selections and locations made under the State laws; and as many such selections and actual settlements under them had been made, the hardships and embarrassments growing out of the action of the State government caused the passage of the act of July 23, 1866.

By the first section of that act, it was declared 'that in all cases where the State of California has heretofore made selections of any portion of the public domain, in part satisfaction of any grant made to said State by act of Congress, and has disposed of the same to purchasers in good faith under her laws, the lands so selected shall be, and are hereby, confirmed to said State.'

A proviso excepted out of this confirmation land of various classes, among which is 'any land held or claimed under a valid Mexican or Spanish grant.' Sect. 2 of the act required the proper land officers, where the land had been surveyed by the United States at the date of the act, to examine into these selections, and, if found to be right, to certify them to the State; and by the third section, provision was made for the perfection of these titles in lands not yet surveyed, after the surveys should have been extended over them.

The land claimed by plaintiff belonged to the latter class; and the official plat of the survey of the township embracing it was not filed in the proper land-office of the United States until June 28, 1871, nearly five years after the passage of the act, and six years after its selection and location by plaintiff. As soon as this was done,-to wit, July 10, 1871,-plaintiff proved up his claim, and the land-office certified the land to the State of California, as provided by the third section of the act, and the State thereupon issued to him his patent. It is upon this title that plaintiff recovered a judgment for the possession of the land in the inferior court of the State of California against defendants, whose claim consisted in the facts found by the court, that, having the qualifications of pre-emptors of the public land, they had, in November, 1870, intruded upon the possession of plaintiff, had made a declaration of their intention to pre-empt it, and had offered to pay the money, and demanded a certificate of sale, the land officers refusing both to accept their money and to give them a certificate.

The Supreme Court of California reversed this judgment, and ordered a judgment for defendants, on the ground, that, at the time of plaintiff's selection of this land, and of the passage of the act of 1866, it was claimed under a valid Mexican grant.

To determine the correctness of this ruling, it will be necessary to look into the history of that claim.

It appears that at some time prior to 1860 there was confirmed to Robert Livermore a grant of two leagues of land, called Los Pocitas, the out-boundaries of which were given in the decree of confirmation, and which included the land now in controversy. In 1865 a survey of this grant was made, which contained nine leagues, and which was rejected for that reason by the Commissioner of the General Land-Office in 1868. In March, 1869, another survey was made, which contained two square leagues, and did not include the land in suit; and this survey was confirmed by the commissioner June 6, 1871. It will be remembered, that, on the 28th of the same month, the plat of the government surveys was filed in the local landoffice, and that, twelve days thereafter, plaintiff presented himself at that office and proved up his claim.

The question for our decision under the facts as found by the court below, and thus more briefly stated, is, whether the action of the officers of the Land Department in certifying these lands to the State as a valid selection of indemnity lands under the act of 1866 was without authority of law, and therefore void. There can be no doubt that they were authorized to inquire into the validity of any claim set up under sect. 1 of that act, and, in the language of the closing paragraph of sect. 3, 'if found in accordance with sect. 1,' to certify the land to the State. And it may admit of grave doubt, whether in a suit at law the validity of their action can be impeached. It certainly cannot be impeached on any other ground found in this record than that, being part of a valid Mexican claim, the land was expressly excepted from confirmation, and could not be subjected to it by the act of the land officers in the premises.

It is not to be denied that the facts found show, that, at the date of the act of 1866, the land claimed by defendant was part of a tract claimed under a Mexican grant, and that the grant itself was then, and is still conceded to be, a valid grant. It was, therefore, 'claimed under a valid Mexican grant,' within the literal terms of the statute. And if this iteral construction is to prevail, and the fact of its being claimed under a Mexican grant is to have reference solely to the date of the statute, the Supreme Court of California was right in its decision.

But we see no reason, in the nature of the relief granted by this statute, or in the exception of land covered by Mexican claims, which should make the exception cover land to which no Mexican claim existed at the time the land officers were to decide on the validity of the selection of the State. If there was then no claim, or if it had been judicially determined that it was not valid, the remedial spirit of the statute required that the bona fide purchaser from the State should be at liberty to assert his claim to it, as a selection made by the State, and no principle of public policy was infringed by so doing.

That this was the intention of Congress is fairly deducible from other parts of the statute.

As we have already said, sect. 2 has reference to lands which had been surveyed by the government at the date of its passage. As to these lands, it is made 'the duty of the proper authorities of the State, where this is not already done, to notify the register of the United States land-office for the district in which the land is located of such selection, which notice shall be regarded as the date of the selection.' Now, suppose that prior to this notification the land had been claimed as part of a Mexican grant, but it had been finally determined that, though the grant itself was valid, it did not include the land selected, would not the selection be good? How could it be otherwise, when, at the time which the statute says shall be regarded as the date of the selection, the land was to all intents and purposes restored to the body of the public lands of the United States, by the terms of a statute on that subject? Sect. 13, act of March 3, 1851 (9 Stat. 633).

The reasons why this proposition should prevail as to lands not surveyed at the date of the act are quite as strong; and we find, accordingly, that the third section declares that as to these the selection made under the authority of the State shall have the same force and effect as the pre-emption rights of a settler on the unsurveyed land, and that the holder of the State title shall be allowed the same time after the surveys are made and the plat filed to prove up his purchase and claim as is allowed to pre-emptors under existing laws; 'and, if found in accordance with sect. 1 of this act, the land embraced therein shall be certified over to the State by the Commissioner of the General Land-Office.'

If found then to be in accordance with sect. 1, the register is to examine his claim, the character, the right asserted, and the certificates under which he claims. He is also to see if it is land subject to be so selected, or land which is excepted from the right of selection. If the papers are right, is he to go back to some past time, and say this land was part of a Mexican claim, though not so now, and reject the application? Or is he to say, Your papers are all right; the land is public land, and open to your claim? If he should doubt on this point, he has but to look to the previous section, where Congress has declared, that, though the land may have been actually selected under State authority years before, yet the date of selection, for the provisions of that act, shall be determined by the notice of the face at the land-office, delivered after the passage of the statute. See Toland v. Mandell, 38 Cal. 42, 43.

As strongly tending to the same conclusion, we find that by the sixth section of the act the right of the State to solicit indemnity for school sections included, or supposed to be included, in a Mexican grant accrues only when it shall be found by a final survey of the grant that it does include some part of a sixteenth or thirty-sixth section.

So, also, as we held at this term in the case of Sherman v. Buick, supra, 209, that by the seventh section of the act of 1853 the right of sele ting indemnity lands for those on which actual settlements were made must be determined by the actual survey of the grant, and, of course, could not be exercised before that time, and that up to that time a valid settlement could be made which would deprive the State of the land, though made on what turned out to be a sixteenth or a thirty-sixth section.

In all this we see the purpose of Congress to refer the exercise of the right of the State to select indemnity for school lands to the condition of the lands for which indemnity is claimed, as well as those out of which it is sought, at the time the official surveys are made and filed in the proper office, or as soon thereafter as the right is asserted.

There is, in what we have here said, no conflict with the principles laid down in Newhall v. Sanger, 92 U.S. 761.

In that case, the claim under the Mexican grant called Moquelamos was still in litigation when the road of the company was located, and when the lands were withdrawn from public sale. These lands were not then public lands within the meaning of the grant under which the corporation claimed.

Here, as we have attempted to show, the land in controversy was public land at the time at which by the statute the State was authorized to assert her right of selection. It is upon the language of the act of 1866, and its special provisions, that we hold that the extent of the Mexican claim having been determined, and all land outside of the final survey restored to the body of the public lands, the State had a right at the time plaintiff proved up his claim to treat it as public land, and have the claim confirmed.

Upon these views we are of opinion that the land in controversy was rightfully certified to the State by the land officers, and that the title of the plaintiff is perfect.

The judgment of the Supreme Court of the State of California is, therefore, reversed, and the cause remanded with directions to affirm the judgment of the District Court of the Third Judicial District, county of Alameda.

MR. JUSTICE DAVIS took no part in the decision of this case.

title: Huff v. Doyle/Opinion of the Court


text: Talk:Huff v. Doyle/Opinion of the Court

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

title: Talk:Huff v. Doyle/Opinion of the Court


text:
Western Union Telegraph Company v. Rogers

MOTION to dismiss a writ of error to the Circuit Court of the United States for the District of Nebraska.

The judgment below was as follows:--

It is considered and adjudged by the court that said plaintiff, Jonathan Rogers, have and recover of and from said defendant, the Western Union Telegraph Company, the sum of five thousand ($5,000) dollars and the costs of this suit, taxed at two hundred twenty and 33/100 ($220.33) dollars, and that he have execution therefor.

Mr. Montgomery Blair for the defendant in error, in support of the motion, cited Walker v. United States, 4 Wall. 163.

Mr. G. P. Lowrey and Mr. J. Hubley Ashton, contra.

The question upon the present motion is, whether this is not in fact and law a judgment for $5,220.33, and, therefore, for an amount greater than $5,000.

The costs are here ascertained, taxed, and liquidated at $220.33; and this is part of the aggregate amount for which judgment is rendered and execution awarded, and which, therefore, exceeds the jurisdictional amount of $5,000.

It is quite inconceivable that a writ of error would be dismissed in a case where the damages amounted to $5,000, or less, and the costs as taxed, and included in the judgment, amounted to, say, $10,000, or any other very large sum.

The principle applicable to the matter is, of course, not affected by the amount of the costs included in the judgment.

Here is a small record of eleven or twelve pages, and the plaintiff's costs have been taxed at $220.33; and if such a judgment is not reviewable by this court under the act of 1875, it is not very easy to see how a party will ever be able to obtain relief against excessive and abusive costs in any case where the damages included in the judgment amount to $5,000, or a less sum.

There can be no taxation of costs, except under the act of Feb. 26, 1853, which repealed absolutely all previous laws on the subject, and regulates the amount recoverable as legal costs of suit by the successful party. Lyell v. Miller, 6 McLean, 422; The Liverpool Packet, 2 Sprague, 37.

Any taxation of costs in violation of this act (known as the Fee Bill) is error, cognizable by this court.

The third section of the act of 1853 (now Rev. Stat., sect. 983) provides that the bills of fees of the clerk, marshal, and attorney, &c., shall be taxed in conformity with the act, and 'shall be filed with the papers in the case.'

Where the costs are taxed and liquidated prior to or at the time of the entry of the judgment, and constitute a part of the judgment as rendered, and the whole judgment, including the damages and costs, is for a definite amount, greater than $5,000, this court, we submit, has jurisdiction, under the act of 1875, although the damages recovered may be less than $5,000.

Very often costs are not actually taxed until after the judgment is rendered; and any general judgment for costs, without fixing the amount, would be interpreted to mean legal costs.

In such a case, the judgment, to the extent of the costs, would not be reviewable in this court.

The case of Walker v. United States, 4 Wall. 163, cited by defendant in error, was a judgment for 'the sum of $2,000, with interest thereon,' &c.; and the court held, that, in determining the jurisdictional sum, interest on the judgment could not be considered, because interest on a judgment can only arise after rendition, while the jurisdictional amount, if determined by the judgment, is fixed at rendition.

Here there is a definite judgment for $5,000+$220.33 for costs; and for that aggregate amount ($5,220.33) execution is awarded against the defendant, now plaintiff in error.

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


text: Talk:Western Union Telegraph Company v. Rogers


text:
Western Union Telegraph Company v. Rogers/Opinion of the Court

Before the act of Feb. 16, 1875 (18 Stat. 316), increasing the sum or value of the matter in dispute, necessary to give this court jurisdiction, from $2,000 to $5,000, after May 1, 1875, it was held that we had no jurisdiction in cases where the matter in dispute was $2,000, and no more, and that in determining the jurisdictional amount 'neither interest on the judgment nor costs of suit can enter into the computation.' Walker v. United States, 4 Wall. 164; Knapp v. Banks, 2 How. 73. The act of 1875 simply increases the jurisdictional amount. No other change is made in the old law. The judgment in this case was rendered May 8, 1875, for $5,000 and no more, except costs. It follows that, according to the practice established under the old law, this writ must be

Dismissed for want of jurisdiction.


text: Talk:Western Union Telegraph Company v. Rogers/Opinion of the Court


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County of Callaway v. Foster

ERROR to the Circuit Court of the United States for the Western District of Missouri.

A copy of the bonds and coupons in question, and a full statement of the statutory provisions governing the case and of the facts shown in the record, are set forth in the opinion of the court.

Argued by Mr. William M. Evarts for the plaintiff in error, and by Mr. J. D. Stevenson for the defendant in error.

MR. JUSTICE HUNT delivered the opinion of the court.

title: County of Callaway v. Foster


text: Talk:County of Callaway v. Foster

title: Talk:County of Callaway v. Foster


text:
County of Callaway v. Foster/Opinion of the Court

This is one of the bond cases of which so many have been brought before this court within the last few years. The county of Callaway, in the State of Missouri, subscribed to the stock of a railroad to be built through the county, and issued its bonds to raise the money to make payment therefor. The road has been built, is in full operation upon the route selected by the county, and the county holds its stock.

The county court making the subscription paid the interest for two years upon the bonds, and a portion of the principal. Another county court has since been elected, which refuses to pay either principal or interest.

The plaintiff below, a citizen of the State of Kentucky, paid his money for a portion of these bonds, and brings the present suit to recover the amount. The court adjudged that the bonds must be paid. The county appeals to this court.

The bonds were issued under the act of the general assembly of Missouri, entitled 'An Act to incorporate the Louisiana and Missouri River Railroad Company, approved March 10, 1859' (see Acts Mo. 1858, p. 406), as amended by an act approved March 24, 1868 (Acts Mo. 1868, p. 97).

Sect. 29 provided that 'it shall be lawful for the county court of any county in which any part of the route of said railroad may be to subscribe to the stock of said company, and issue bonds of such county to raise funds to pay the stock thus subscribed.'

Sect. 22 of the amendatory act of March 24, 1868, is as follows: 'It shall be lawful for the company to make out, locate, and construct a branch of its road. . . . And all subscriptions to the capital stock of said company intended to be used in the construction of said branch shall be made in separate books.'

On the 16th of January, 1868, the county court of Callaway County authorized a subscription of $500,000 to the capital stock of the said railroad company.

The record shows that on the same day,-to wit, on the sixteenth day of January, 1868,-Harris, the authorized agent, subscribed for the stock, and received the certificates therefor.

The following is a copy of one of the bonds issued by the county, with coupon attached, to raise the money to pay such subscription, and which is now held by the plaintiff below:-- 'No. ___.] STATE OF MISSOURI. [$100.

'CALLAWAY COUNTY RAILROAD BOND.

'On the first day of January, A.D. 1873, the county of Callaway promises to pay to the Louisiana and Missouri River Railroad Company, or bearer, the sum of $100, to bear interest from date, at the rate of nine per cent per annum, payable semi-annually on the first day of January and July in each year, as per coupons attached hereto, and after maturity to bear the same rate of interest until paid, said principal sum and interest being payable at the Missouri Bond and Stock Board of St. Louis, in the City of St. Louis, Mo. This bond is issued by Callaway County, by authority of the act of the general assembly of the State of Missouri, approved March 10, 1859, as amended by an act approved March 24, 1868.

'Witness my hand, with the seal of said county affixed, this first day of January, 1869.

'[L. S.] GEO. BARTLEY,

'Presiding Justice of Callaway County Court.

'Attest: W. H. BAILEY,

'COUPON.

'On the first day of January, 1873, Callaway County will pay to the bearer the sum of $4.50 at the Missouri Bond and Stock Board of St. Louis, Mo., interest on Railroad Bond No.___.

'GEO. BARTLEY,

'Presiding Justice of Callaway County Court.

W. H. BAILEY,

'Clerk of Callaway County Court.'

If this subscription was made by virtue of the act of March 10, 1859, before referred to, it is not contended that the bonds are invalid. This is understood to be conceded in the second point made in the brief of the plaintiff in error.

On the other hand, if the subscription depends solely for its validity upon the act of March 24, 1868, it is contended that the subscription was without the authority of law, and that the bonds issued in its fulfilment are void.

The distinction is this: On the 8th of March, 1859, a county might legally be empowered by the legislature of Missouri to make a subscription to railroad stock upon its own motion, and to issue bonds in fulfilment of the obligation. Before the 24th of March, 1868,-to wit, in July, 1865,-a constitutional provision was adopted, in these words: 'The general assembly shall not authorize any county, city, or town to become a stockholder in, or to loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.'

It is not pretended that the assent of the voters of Callaway County to the subscription in question was given.

The fact upon this branch of the case are, that the subscription to the railroad stock was authorized by the county court, and actually made by their agent before the act of March, 1868, was passed; that the certificates of stock in said company were issued to and received by the county at the time of making such subscription, but that the bonds of the county in question were not issued until a date after the passage of the latter act, to wit, in January, 1869,-and that the original charter was in several particulars altered by the amending act of 1868.

1. It has been held in many cases by the Supreme Court of Missouri, that the provision of the constitution of 1865, prohibiting loans or subscriptions for stock, except with the assent of the electors, in prospective, not retroactive; that the charter of a company which is in existence before the adoption of the constitutional provision is not affected by it, but the powers given by it remain as if no such constitution existed. State v. Macon County Court, 41 Mo. 453; Smith v. County, 9 Clark, 54 id. 58. Although put into execution by making the subscription or issuing the bonds after the adoption of the constitution, the power remains valid.

2. The constitution of 1865 contains, in connection with the provision already quoted, the following: 'All statute laws of the State now in force, not inconsistent with the constitution, shall continue in force until they shall expire by their own limitations, or be amended or repealed by the general assembly.' In State of Missouri v. Cape Girardeau & State Line Railroad, 48 Mo. 468, it was held, that the constitutional provision prohibiting special enactments did not extend to amendments of laws in force when it was adopted, but that additional power given to the Cape Girardeau Railroad, by the means of an amendment to its charter, was a lawful exercise of authority. The cases before cited show that the act we are considering is not inconsistent with the constitution, as it continued in force after its adoption as before.

It is difficult to discover any principle which can distinguish an amendment to the charter of the Louisiana and Missouri River Railroad Company, altering its terms and conditions within its original limits, and of the general nature and scope of its original charter, from the Cape Girardeau case. The case of State v. Saline Co., 51 Mo. 350, does not conflict with this principle.

3. The act of March, 1868, referred to in the Callaway County bonds, in connection with the act of March 10, 1859, was an amendment of the latter act.

It expressly declares itself to be an amendment of the first act. Its title is, 'An Act to amend an act entitled an act to incorporate the Louisiana and Missouri Railroad Company, by increasing the amount of the capital stock of the said company, defining more explicitly the power of the board of directors to fix the western terminus of said road, authorizing the location and construction of a branch road, and conferring upon said board the necessary powers to carry into effect the several objects contemplated by their charter, and also by striking out sects. 11, 18, 30, and 31 of said act.' Laws of Mo. 1868, p. 103.

That the title may properly be examined, and is competent, see ''Cin. L. I. C. v. Abbott'', 39 Mo. 181; State v. Saline Co., 51 id. 392; 14 id. 205.

The several objects appear to be legitimate subjects of amendment, and it would ill become us to impute to the legislature of a State an intention to evade the provisions of its own constitution, under the guise of an amendment. There is no indication of such an intention in the case we are considering.

The form in which the amendment is made, by a new act thoughout, is explained by that article of the Missouri Constitution which requires that no amendment of an act can be made by striking out and inserti g any words, but that 'the act or part of act amended shall be set forth and published at length as if it were an original act.' Accordingly, the amendment is here made, not by making provision merely for the new points, but by re-enacting the whole of the original act in all its details, with the alterations, where they are intended to be made. A collation of the provisions of the two acts make this point quite clear.

The amended charter attaches to itself all the qualities and privileges of the old one. State v. Greene Co., 54 Mo. 540; State v. Callaway Co., 51 id. 395; State v. Sullivan Co., id. 522.

This view is an answer to the objections that the transfer of the subscription was made to a branch road, and in issue of bonds made under that subscription, and that such authority only existed under the power conferred by the act of 1868. The branch was the original road, so far as Callaway was concerned, with a change of name simply, and the amendment became a part of the original act.

We find no difficulty, therefore, in holding that a county, included in the terms of the original act, had power upon its own authority to subscribe for the stock, and that a submission of the question to the electors of the county was not necessary.

The power of this county to subscribe as one of the counties intended to be included within the terms of the original act is reasonably plain.

The twenty-ninth and thirty-fifth sections are as follows:--

'SECT. 29. It shall be lawful for the county court of any county in which any part of the route of said railroad may be, to subscribe to the stock of said company; and it may invest its funds in stock of said company, and issue the bonds of such county to raise funds to pay the stock thus subscribed, and to take proper steps to protect the interest and credit of the county. Such county court may appoint an agent to represent the county, vote for it, and receive its dividends; and any city, town, or incorporated company may subscribe to the stock of said railroad company, and appoint an agent to represent its interest, give its vote, and receive its dividends, and may take proper steps to guard and protect the interest of said city, town, or incorporation.'

'SECT. 35. Said company shall have power to mark out, locate, and construct a railroad from the city of Louisiana, in the county of Pike, by the way of Bowling Green, in said county, to some suitable point on the North Missouri Railroad, intersecting said road between the southern limits of the town of Wellsburg, in Montgomery County, and the northern limits of the town of Mexico, in Audrain County, thence to the Missouri River at the most eligible point, on a line the most suitable and advantageous as regards distance, grade, cost of road, and permanent value of same.'

The starting-point of the road was fixed at Louisiana, in the county of Pike. Two points only in the route were indicated; to wit, Bowling Green, and the crossing of the Missouri Railroad between the outer limits of the towns of Wellsburg and Mexico. The termination was to be upon the Missouri River at the most eligible point, distance, grade, cost of road, and permanent value considered. The county of Callaway furnished all the requisites thus set forth. The road as ultimately built did pass through Bowling Green, across the Missouri road between the towns of Mexico and Wellsburg, thence through the whole length of the county of Callaway to a point opposite Jefferson City on the Missouri River. We discover nothing to show that this point might not properly have been decided by the company to have been a more suitable and advantageous place at which to terminate its road than any other upon the Missouri River.

The statute already quoted provides that 'it shall be lawful for the county court of any county, in which any part of the route of said railroad may be, to subscribe to the stock of said company.' 'May be' what? This expression is incomplete, and is to be construed with reference to the situation of the subject-matter. If used in a statute where a railroad already built was the subject, it would no doubt refer to the presence or existence there of the road. It would be equivalent to the word 'exists,' or 'is built,' or 'in operation,' or the like. But when used in reference to a railroad not yet built, not located or surveyed, and indeed not yet organized, it must have quite a different meaning. Certain points were given for the location of the road; as, that it must start from a city named, it must pass through one place mentioned, and must pass between two others, and must terminate on the Missouri River. The map given in evidence shows that there was a large room for choice thus left in the company. It might pass through Howard and Boone Counties, terminating at Glasgow, and omitting Callaway, or it might pass through Callaway, terminating opposite Jefferson City, omitting Howard and Boone. This was the intention of the legislature; for the double purpose, no doubt, of enabling the company to select the best route, and of stimulating rivalry among the different localities which might wish to obtain the benefit of the location. A broad construction of the language would be to say that it meant to authorize a subscription by any county in which the road may by law be located. This would include all the counties before named. It might be held to authorize a subscription by any county in which the road may be in fact ultimately located.

It is, perhaps, not necessary to pass upon this point with any more precision than to say, that, upon any reasonable construction of the language, it embraces Callaway, which was one of the possible sites, and a site ultimately occupied, in fact.

We are of the opinion, therefore, that the subscription actually made by the county of Callaway, in January, 1868, was legal, and that the circumstance that the bonds were issued at a later date is an immaterial one.

We are of the opinion, also, that the amendments of the charter, and the subsequent action by which the portion of road from Mexico through Callaway County, and under such amendments was made a branch road, and the portion from Mexico to Glasgow was called the main road, and that the bonds were issued both under the act of 1859 and the act of 1868, if such were the fact, do not affect the case. The latter act is an amendment and continuation of the former, and refers to what was then termed a branch road.

Nor do we perceive that it is necessary to invoke the principle of bona fides.

If our views are sound, the bonds were legally issued under the authority of a legislative act, and are valid in the hands of any one who has a legal title to them.

We are of the opinion that the case was well decided by the Circuit Court.

Judgment affirmed.

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE DAVIS, MR. JUSTICE FIELD, and MR. JUSTICE BRADLEY, dissenting.


text: Talk:County of Callaway v. Foster/Opinion of the Court


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County of Callaway v. Foster/Dissent Miller

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE DAVIS, MR. JUSTICE FIELD, and MR. JUSTICE BRADLEY, dissenting.

I dissent from the judgment of the court, on the ground that the subscription of stock to the railroad company in this case could only be made under the amendatory act of March 24, 1868, and that the constitution of the State then required a vote of the county to make such subscription valid. As there was no such vote, and no recital in the bond or elsewhere to show that there was, the bonds were void.


text: Talk:County of Callaway v. Foster/Dissent Miller


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The Idaho

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

The libellants claim damages against the 'Idaho' for the non-delivery of one hundred and sixty-five bales of cotton, part of a shipment of two hundred bales for Liverpool, made by Thomas W. Mann, and consigned to the order of James Finlay & Co. After the shipment, the libellants purchased the cotton from Mann, who indorsed to them the ship's bill of lading therefor. On the arrival of the vessel at Liverpool, thirty-five bales were delivered to Finlay & Co., but the remaining one hundred and sixty-five were delivered to Baring Brothers & Co., in pu suance of an order from William J. Porter & Co. of New York. Such a delivery was not in accordance with the stipulations of the bill of lading; but it is attempted to be justified by the alleged fact that Porter & Co. were the true owners of the cotton, and as such had a right, superior to that of the shippers, to control its delivery.

In April, 1869, at New Orleans, W. J. Porter & Co., in due course of business and in good faith, advanced to one Forbes a large sum of money upon a bill of lading, which set forth a shipment of one hundred and forty bales of cotton at New Orleans, in the brig 'C. C. Colson.' The bill of lading was in the ordinary form, executed by the lawful master of the 'Colson,' but, in fact, the cotton had not been shipped at the time of its execution. Some few days after the date of the bill of lading, and after the acceptance of the drafts by Porter & Co., Forbes did ship by the 'Colson' one hundred and forty bales of cotton, as and for that described in the bill of lading sent to Porter & Co. This cotton was duly delivered to the 'Colson,' was receipted for by the officers of the brig, and, although not then placed on board, was delivered to the vessel on the wharf alongside.

Subsequently to this shipment, and before the cotton was taken into the hold of the brig, Forbes removed it from the custody of the brig and shipped it on the steamship 'Lodona,' lying near, and bound for New York. The previous shipment of the cotton on the 'Colson' was unknown to the officers of the 'Lodona,' and they issued bills of lading in the ordinary form for the cotton they received.

Forbes shipped in the 'Lodona' twenty-five other bales, and took one bill of lading for the whole one hundred and sixty-five; on which second bill of lading he obtained a large advance from Schaefer & Co., of New York, to whom he made a second assignment of the cotton.

The bill of lading for one hundred and sixty-five bales, which was sent to Schaefer & Co., included the one hundred and forty bales which had been taken from the 'Colson' and delivered to the 'Lodona.' The 'Lodona' arrived in New York on the 29th or 30th of April. The one hundred and sixty-five bales were taken directly to a warehouse by Schaefer & Co., who, on the 1st of May, engaged freight in the 'Idaho' for two hundred bales. On the same day, Schaefer & Co. sent for one Corcoran, who went to Schaefer's house on the next day (Sunday), and was then directed to remove all the marks and numbers from the one hundred and sixty-five bales, and re-mark them with marks similar to thirty-five other bales, which Schaefer & Co. had stored in West Street. Corcoran did this as well as the short time permitted; and on Monday the two hundred bales-one hundred and twenty of them marked S. A. L., and eight marked V. O. X.-were shipped in the 'Idaho.' This shipment was not made in Schaefer's name; but, while Corcoran was at work on the cotton, it was nominally sold to Mann, Schaefer's clerk, and was shipped in the name of Conklin & Davis, grocers, who permitted their names to be thus used, and who indorsed the ship's receipts over to Mann. On the 4th of May Mann applied for and received the bill of lading of the 'Idaho' for the two hundred bales on which this action is brought. On the same day Mann made a nominal sale of the cotton to Hentz & Co., free on board.

Hentz & Co. were told to ask no questions; and on the 5th or 6th gave their note for the cotton to Mann, who paid it to Schaefer, who held it till maturity, and when Hentz & Co. paid the amount of it to Mann they obtained Schaefer's guaranty against loss. Mann then paid the money over to Schaefer, who gave him a check for $897.36, as for a difference in price between the sale to Mann and his sale to Hentz & Co. Hentz & Co. acted under the direction of Schaefer & Co., the real parties in interest here in bringing this suit.

The court below dismissed the libel, and the libellants appealed here.

Mr. R. T. Merrick, for the appellant.

A carrier cannot set u a naked jus tertii or adverse title of a hostile claimant against his shipper, nor show, as an excuse for non-delivery according to the terms of the bill of lading, that he has delivered the goods to the true owner. Story, Bailm. (8th ed.), sects. 266, 450, 582; 2 Story, Eq. Jur., sect. 817; Dixon v. Hammond, 2 B. & Ald. 310; Roberts v. Ogelby, 9 Price, 269; Gosling v. Bernie, 7 Bing. 338; Burton et al. v. Wilkenson et al., 18 Vt. 186; Gerbur v. Monie, 56 Barb. 659; Barnard v. Kobbe, 3 Daly, 376.

If the one hundred and forty bales of cotton that had been unloaded at the wharf in New Orleans, at which the 'Colson' was lying, were, in fact, part of the two hundred bales shipped on the 'Idaho,' for which libellants held the bill of lading, there was no such intermixture of said cotton as justified the application of the rule of law in regard to a confusion of goods. 2 Kent's Com. 365; 1 Story, Eq. Jur., sect. 623; Lupton v. White, 15 Ves. 442; Wood's Inst. 158; Treat v. Barber, 7 Conn. 280; Seymour v. Wyckoff, 10 N. Y. 213; Story, Bailm., sect. 40, pp. 41, 42 (8th ed.).

Mr. William G. Choate, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: The Idaho


text: Talk:The Idaho

title: Talk:The Idaho


text:
The Idaho/Opinion of the Court

In determining the merits of the defence set up in this case, it is necessary to inquire whether the law permits a common carrier to show, as an excuse for non-delivery pursuant to his bill of lading, that he has delivered the goods upon demand to the true owner. Upon this subject there has been much debate in courts of law, and some contrariety of decision.

In Rolle's Abr. 606, tit. 'Detinue,' it is said, 'If the bailee of goods deliver them to him who has the right to them, he is, notwithstanding, chargeable to the bailor, who in truth has no right;' and for this, 9 Henry VI. 58, is cited. And so, if the bailee deliver them to the bailor in such a case, he is said not to be chargeable to the true owner (id. 607), for which 7 Henry VI. 22, is cited. The reasons given for such a doctrine, however satisfactory they may have been when they were announced, can hardly command assent now. It is now everywhere held, that, when the true owner has by legal proceedings compelled a delivery to himself of the goods bailed, such delivery is a complete justification for non-delivery, according to the directions of the bailor. Bliven v. Hudson River Railroad Co., 36 N. Y. 403. And so, when the bailee has actually delivered the property to the true owner, having a right to the possession, on his demand, it is a sufficient defence against the claim of the bailor. The decisions are numerous to this effect. King v. Richards, 6 Whart. 418; Bates v. Stanton, 1 Duer, 79; Hardman v. Wilcock, 9 Bing. 382; Biddle v. Bond, 6 Best & S. 225. If it be said, that, by accepting the bailment, the bailee has estopped himself against questioning the right of his bailor, it may be remarked in answer, that this is assuming what cannot be conceded. Undoubtedly the contract raises a strong presumption that the bailor is entitled; but it is not true that thereby the bailee conclusively admits the right of the principal. His contract is to do with the property committed to him what his principal has directed,-to restore it, or to account for it. Cheeseman v. Exall, 6 Exch. 341. And he does account for it when he has yielded it to the claim of one who has right paramount to that of his bailor. If there be any estoppel, it ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount; that is, by the reclamation of possession by the true owner. Biddle v. Bond, supra. Nor can it be maintained, as has been argued in the present case, that a carrier can excuse himself for failure to deliver to the order of the shipper, only when the goods have been taken from his possession by legal proceedings, or where the shipper has obtained the goods by fraud from the true owner. It is true, t at, in some of the cases, fraud of the shipper has appeared; and it has sometimes been thought it is only in such a case, or in a case where legal proceedings have interfered, that the bailee can set up the jus tertii. There is no substantial reason for the opinion. No matter whether the shipper has obtained the possession he gives to the carrier by fraud practised upon the true owner, or whether he mistakenly supposes he has rights to the property, his relation to his bailee is the same. He cannot confer rights which he does not himself possess; and, if he cannot withhold the possession from the true owner, one claiming under him cannot. The modern and best-considered cases treat as a matter of no importance the question how the bailor acquired the possession he has delivered to his bailee, and adjudge, that, if the bailee has delivered the property to one who had the right to it as the true owner, he may defend himself against any claim of his principal. In the late case of Biddle v. Bond, supra, decided in 1865, it was so decided; and Blackburn, J., in delivering the opinion of the court, said there was nothing to alter the law on the subject in the circumstance that there was no evidence to show the plaintiff, though a wrong-doer, did not honestly believe that he had the right. Said he, the position of the bailee is precisely the same, whether his bailor was honestly mistaken as to the rights of the third person whose title is set up, or fraudulently acting in derogation of them. In Western Transportation Company v. Barber, 56 N. Y. 544, the Court of Appeals of New York unanimously asserted the same doctrine, saying, 'The best-decided cases hold that the right of a third person to which the bailee has yielded may be interposed in all cases as a defence to an action brought by a bailor subsequently for the property. When the owner comes and demands his property, he is entitled to its immediate delivery, and it is the duty of the possessor to make it. The law will not adjudge the performance of this duty tortious as against a bailor having no title.' The court repudiated any distinction between a case where the bailor was honestly mistaken in believing he had the right, and one where a bailor obtained the possession feloniously or by force or fraud; and we think no such distinction can be made.

We do not deny the rule that a bailee cannot avail himself of the title of a third person (though that person be the true owner) for the purpose of keeping the property for himself, nor in any case where he has not yielded to the paramount title. If he could, he might keep for himself goods deposited with him, without any pretence of ownership. But if he has performed his legal duty by delivering the property to its true proprietor, at his demand, he is not answerable to the bailor. And there is no difference in this particular between a common carrier and other bailees.

Recurring, then, to the inquiry whether Porter & Co.-to whose order the steamer delivered the one hundred and sixty-five bales of cotton-were the true owners of the cotton, a brief statement of the evidence on which their title rests is necessary. It originated as follows: On the 1st of April, 1869, one J. C. Forbes obtained from the master of the brig 'Colson,' then lying at New Orleans, a bill of lading for one hundred and thirty-nine bales of cotton, described by specified marks. The bill was indorsed, and forwarded by Forbes to Porter & Co.; and drafts against it to a large amount were drawn upon them, which they accepted, credited, and paid on or before the 7th of the month. In fact, however, when the bill of lading was given, no such cotton had been received by the brig; but on the 5th of April the agent of Forbes bought one hundred and forty bales, then at the shipper's press, and directed them to be sent to the 'Colson,' marked substantially as described in the bill of lading. These bales were accordingly delivered from the press to the brig on the 8th of April, and the first and second mate receipted for them. They were not actually taken on board, but they were deposited on the pier, at the usual and ordinary place for the receipt of freight by the 'Colson,' and an additional bill of lading for one bale only was taken by Forbes, and by him indorsed and transmitted to Porter & Co., together with an invoice of the one hundred and forty bales corresponding with the bills of lading. The marks and numbers on the bales were the same as those mentioned in the bills of lading, excepting only that thirty-five were marked L instead of thirty-six, and sixteen marked § instead of fifteen. There was also a small difference in the aggregate weight.

That the cotton thus delivered to the 'Colson' was intended to fill the bills of lading, one of which had been previously given, is incontrovertible. They were so intended by the shipper. If not, why were they thus marked? And why was a bill of lading taken for one bale only, instead of for one hundred and forty; and why was the invoice of the whole number sent? Such, also, was plainly the understanding of the ship. The receipts of the mates, and the fact that the master gave a bill of lading for one bale marked S, when there were sixteen bales thus marked, leave this beyond reasonable doubt. What, then? Why, the one hundred and forty bales thus shipped became from the moment of shipment the property of Porter & Co., to whom the bills of lading were indorsed. It is not only the utterance of common honesty, but the declaration of judicial tribunals, that a delivery of goods to a ship corresponding in substance with a bill of lading given previously, if intended and received to meet the bill of lading, makes the bill operative from the time of such delivery. At that instant it becomes evidence of the ownership of the goods. Thus, in Rowley v. Bigelow, 12 Pick. 307, it is said, a bill of lading operates by way of estoppel against the master, and also against the shipper and indorser. 'The bill acknowledges the goods to be on board before the bill of lading is signed. But if, through inadvertence or otherwise, the bill of lading is signed before the goods are on board, upon the faith and assurance that they are at hand, as if they are received on the wharf ready to be shipped, or in the shipper's own warehouse,. . . and afterwards they are placed on board, as and for the goods embraced in the bill of lading, as against the shipper and master the bill will operate on those goods by way of relation and estoppel.' Such is also the doctrine asserted in Halliday v. Hamilton, 11 Wall. 565, and it is in harmony with the general rules that regulate the transfer of personal property. We do not say that a title to personal property may not be created between the issue of a bill of lading therefor and its delivery to the ship, which will prevail over the master's bill, but, in the absence of any such intervening right, a bill of lading does cover goods subsequently delivered and received to fill it, and will represent the ownership of the goods. The cotton delivered on the 8th of April on the pier for the 'Colson,' and received by the mates of the brig, became, therefore, at the instant of its delivery, the property of Porter & Co., who were then the indorsees of the bills of lading. Its subsequent removal by Forbes to the 'Ladona,' either with or without the consent of the brig's officers, could not divert that ownership.

There is nothing in the statutes of Louisiana which requires a different conclusion. Those statutes prohibit the issue of bills of lading before the receipt of the goods, but they do not forbid curing an illegal bill by supplying goods, the receipt of which have been previously acknowledged. The statutes are designed to prevent fraud. They are not to be construed in aid of fraud, as they would be if held to make a delivery of goods to fill a fraudulent bill of lading inoperative for the purpose.

The title of Porter & Co. to the one hundred and forty bales must, therefore, as we have said, be held to have been perfected when they were delivered to the 'Colson' on the 8th of April. No right in any other person intervened between the issue of the bill of lading and the brig's receipt of the cotton to fill it. It was after the title of Porter & Co. had thus become complete that Forbes removed the one hundred and forty bales from the custody of the 'Colson' and shipped it for New York on the 'Ladona,' together with twenty-five other bales, re-marking it, and drawing drafts against this second shipment upon Schaefer & Co. After carefully examining the evidence, we cannot doubt that the one hundred and forty bales thus withdrawn from the 'Colson' were shipped on the 'Ladona,' and that they came to the possession of Schaefer & Co., in New York, by whom they were transferred, together with the other twenty-five bales, to Mann, under whom the plaintiffs claim. The one hundred and sixty-five bales, then, are the identical bales that were included in the shipment on the 'Idaho,' and for which the bill of lading was given to Mann. Of these, one hundred and forty were the property of Porter & Co., fraudulently withdrawn from their possession. It is hardly necessary to say that the title of the true owner of personal property cannot be impaired by the unauthorized acts of one not the owner. Taking possession of the property, shipping it, obtaining bills of lading from the carriers, indorsing away the bills of lading, or even selling the property and obtaining a full price for it, can have no effect upon the right of the owner. Even a bona fide purchaser obtains no right by a purchase from one who is not the owner, or not authorized to sell. It must, therefore, be concluded that Porter & Co. were the owners of at least one hundred and forty of the bales shipped by Mann on the 'Idaho,' and covered by the bill of lading to enforce which this libel was filed.

All that remains to be determined is whether Porter & Co. had a right to the possession of the additional twenty-five bales shipped with the one hundred and forty from New Orleans on the 'Ladona,' and shipped also on the 'Idaho' for Liverpool, together with the thirty-five bales delivered there to Finlay & Co. When the one hundred and forty bales were removed from the custody of the 'Colson' and taken to the 'Ladona,' twenty-five other bales were mingled with them. On the pier opposite that vessel they were re-marked, and all shipped as one lot, under one bill of lading. When they reached New York, they came into the possession of Schaefer, the indorsee of the bill of lading given by the 'Ladona,' who knew, when he received them, that the 'Colson' was short eight hundred or one thousand bales. The newspapers had contained articles about the fraud. He himself was a sufferer. He held some of the fraudulent bills of lading of the 'Colson,' and he had heard that Porter was in the same condition. So he has testified. With this knowledge he set to work to guard against the possibility of tracing the cotton. He caused the 'Colson' marks to be removed from the one hundred and forty bales, and the 'Ladona' marks to be removed from both the one hundred and forty and the twenty-five bales. He then had the whole re-marked, making no distinction between the lot of one hundred and forty and that of twenty-five, thus practically making the bales undistinguishable. In addition to this, by an arrangement between himself and Mann, his clerk, in the form of a sale, the cotton was shipped en masse by the 'Idaho.' It is impossible for us to close our eyes upon the nature and purpose of this transaction. It was a perfect confusion of the one hundred and forty bales that belonged to Porter with the other twenty-five; and it was not accidental. It was purposely made, with an intent to embarrass or hinder the owner, and prevent him from recovering his original property. There is no conceivable motive for Schaefer's obliterating the marks, both of the 'Colson' and 'Ladona' shipment, in so much haste (ordering it done on Sunday), and substituting new marks, except to destroy the evidenc of title in any other person. That such was Schaefer's purpose may also be inferred from his conduct in selling the same to Mann; from Mann's sale on the same day to the libellants, telling them he did not wish them to ask whether the cotton was really Schaefer's, stating, also, that he had bought from Schaefer, and that Schaefer guaranteed the transaction; from Mann's turning over the libellants' note immediately to Schaefer, and Schaefer's giving a guaranty before its payment that the maker should be held harmless. The whole arrangement was manifestly a scheme of Schaefer to obscure the title to the cotton, to prevent its being traced by the true owner,-a scheme in the execution of which he was aided by Mann and the libellants.

Now, what must be the legal effect of all this? What the effect of intermingling the twenty-five bales with the one hundred and forty that belonged to Porter, in such a manner that they could not be distinguished, and so completely that it is impossible for either party to identify any one of the one hundred and sixty-five bales as a part of the lot of twenty-five, or of the larger lot of one hundred and forty, shipped on the 'Colson'? We can come to no other conclusion than this: the right of possession of the whole was in Porter, and neither he who caused the confusion, nor any one claiming under him, is entitled to any bale which he cannot identify as one of the lot of twenty-five. It is admitted, the general rule that governs cases of intermixture of property has many exceptions. It applies in no case where the goods intermingled remain capable of identification, nor where they are of the same quality or value; as where guineas are mingled, or grain of the same quality. Nor does the rule apply where the intermixture is accidental, or even intentional, if it be not wrongful. But all the authorities agree, that if a man wilfully and wrongfully mixes his own goods with those of another owner, so as to render them undistinguishable, he will not be entitled to his proportion, or any part, of the property. Certainly not, unless the goods of both owners are of the same quality and value. Such intermixture is a fraud. And so, if the wrong-doer confounds his own goods with goods which he suspects may belong to another, and does this with intent to mislead or deceive that other, and embarrass him in obtaining his right, the effect must be the same. Thus it was ruled in Ryder v. Hathaway, 21 Pick. 306. Such is the present case. The confusion of the bales of cotton was not accidental. It was purposely made. The intermixture was evidently intended to render any identification of particular bales impracticable, and to cover them against the search of a suspected owner. It was, therefore, wrongful. And the bales were not of uniform value. They differed in weight and in grade. But even if they were of the same kind and value, the wronged party would have a right to the possession of the entire aggregate, leaving the wrong-doer to reclaim his own, if he can identify it, or to demand his proportional part. Stephenson v. Little, 10 Mich. 447. The libellants have made no attempt to identify any part.

See, upon this subject of confusion of goods, 2 Kent's Com. (11th ed.) 364, 365; Hart v. Ten Eyck, 2 Johns. Ch. 62, 108; Weil v. Silverston, 6 Bush (Ky.), 698; Hesseltine v. Stockwell, 30 Me. 370.

It follows from all we have said that the delivery by the 'Idaho' of the one hundred and sixty-five bales, to the order of Porter & Co., was justifiable, and that the libellants have sustained no legal injury.

Decree affirmed.

title: The Idaho/Opinion of the Court


text: Talk:The Idaho/Opinion of the Court

title: Talk:The Idaho/Opinion of the Court


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United States v. Thompson (93 U.S. 586)

ERROR to the Court of Appeals of the State Maryland.

In the progress of a suit pending in the Circuit Court of Queen Anne's County, Md., to settle the affairs of McFreely & Hopper, an insolvent partnership, and to collect and apply the assets of the firm to the payment of its liabilities, the United States presen ed a petition for the allowance of a claim in their favor, and its payment out of the fund in court in preference to other creditors, on account of the priority given to debts due the United States by the act of March 3, 1797. 1 Stat. 515, sect. 5; Rev. Stat. sect. 3466.

This petition was referred to an auditor, to take testimony, and report. The facts, as they appear in his report, are substantially as follows:--

Thompson, one of the appellees, was a deputy-collector of internal revenue for the first district of Maryland. In the course of his business he permitted McFreely & Hopper to dispose of and receive the money for internal-revenue stamps, which had been furnished him by the United States to sell. On a settlement with the firm, in December, 1865, there was found due him on that account between $1,500 and $1,600. During the same month of December he held checks received from various parties in payment of internal-revenue taxes, and these he indorsed and delivered to the firm to collect for him. The money was collected, and deposited in bank to the credit of the firm. Some time in February, 1866, the firm gave Thompson a check for $3,000, to pay the amount due him for stamps and checks,-viz., $2,537,-and an amount that was due to him on account of other transactions. With this check, and other checks and current notes, he obtained from the National Exchange Bank of Baltimore a certificate of deposit payable to the treasurer of the United States, for about $24,000. This was at once remitted to the treasurer, to whom it was afterwards paid. Some days after, the check of McFreely & Hopper was protested; and Thompson took it up from the National Exchange Bank, using therefor moneys belonging to the United States in his hands as deputy-collector. Sept. 1, 1866, McFreely & Hopper took up the check from him, paying in money all but $2,537, and giving him their note for that amount, with two sureties, payable one day after date.

This note Thompson presented for allowance, as a claim in his favor. The United States claimed, on account of the money originally received for the stamps sold and checks collected.

The auditor reported against the United States, upon the ground, that, even if they ever had any claim against the firm, it was extinguished by the payment of the certificate of deposit to the treasurer. The report of the auditor was confirmed by the Circuit Court, and a decree entered accordingly. This decree was affirmed by the judgment of the court of appeals. The present writ of error to that court was sued out.

Mr. Assistant Attorney-General Smith for the plaintiff in error. No opposing counsel.

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

title: United States v. Thompson (93 U.S. 586)


text: Talk:United States v. Thompson (93 U.S. 586)


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United States v. Thompson (93 U.S. 586)/Opinion of the Court

Judgments in the State courts against the United States cannot be brought here for re-examination upon a writ of error, except in cases where the same relief would be afforded to private parties. It was conceded upon the argument in behalf of the United States, that the question of priority of payment, under the laws of the United States, was not decided in the court below, because it was found that there was no debt due. With this concession, which could not be avoided, it is difficult to see what Federal question there is in the record.

It appears affirmatively that the Circuit Court rejected the claim, because it had been paid; and the presumption, in the absence of any showing to the contrary, is, that the Court of Appeals based its decision upon the same ground. But, in addition to this, on looking into the opinion which has been sent here as part of the record in that court, we find that all questions as to the original liability of McFreely & Hopper to the United States were expressly waived, and the decision placed solely upon the ground that 'any claim the United States may have ever had against the firm, growing out of these dealings with Thompson, has been paid and extinguished.'

It is not contended that this decision is repugnant to the Constitution, or any law or treaty of the United tates; but the argument is, that, as the check of McFreely & Hopper was not paid, it did not pay their debt. Whether this is so or not, does not depend upon any statute of the United States, but upon the principles of general law alone. We have many times held that we have no power to review the decisions of the State courts upon such questions. Bethel v. Demaret, 10 Wall. 537; Delmas v. ''Ins. Co.'', 14 id. 666; ''Ins. Co. v. Hendren, 92 U.S. 287; Rockhold v. Rockhold'', id. 130.

Writ dismissed.


text: Talk:United States v. Thompson (93 U.S. 586)/Opinion of the Court


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Mackie v. Story

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

Submitted on printed arguments by Mr. George L. Bright for the plaintiffs in error, and by Mr. John Finney and Mr. Henry C. Miller, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Mackie v. Story


text: Talk:Mackie v. Story

title: Talk:Mackie v. Story


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Mackie v. Story/Opinion of the Court

Norman Story, of the city of New Orleans, now deceased, made his will, dated April 24, 1867, the third paragraph of which was in these words: 'I will and bequeath to Henry C. Story and Benjamin S. Story all properties I die possessed of, to be divided equally between them.' The legatees were brothers of the deceased, and Henry died before him, leaving children; Benjamin survived. The question in this case is, whether the whole legacy accrued to Benjamin, the survivor, or whether only one half of it did so, leaving the deceased intestate as to the other half.

On the trial, the children of Henry C. Story offered parol evidence to show the good-will and affection of the deceased towards him, for the purpose of demonstrating the intention of the testator in the bequest. This evidence was properly rejected. The paper must speak for itself, and its meaning and effect be ascertained by the court.

The court below decided that the legacy was a conjoint one, and that by the right of accretion the whole of it accrued to Benjamin; and in this opinion we concur. The civil law does not recognize the common-law distinction between joint tenancy and tenancy in common. A gift to two persons jointly, if it takes effect, inures to their equal benefit without any right of survivorship. If one dies, his share goes to his legal representatives. Hence the words 'to be divided equally between them' added to such a legacy only expresses what the law would imply without them. They do not alter the character of the legacy: they are only descriptive of it. At the common law, they would have the effect of making it a tenancy in common; but they have no such effect in the civil law. The legacy, if it takes effect in respect of both legatees, will be divisible equally between them in any event.

But in testamentary dispositions, the civil law does make a distinction between a conjoint legacy and a legacy of separate and distinct shares in the thing bequeathed. Where the whole thing bequeathed is given to two persons, if one of them fails to receive the benefit of the disposition, either because he dies before the testator, or is incapable to take it, or refuses to take it, or because as to him it is revoked, the whole goes to the other legatee by accretion; for the whole was given to both, and it is presumed to be the will of the testator that he shall not die intestate as to any part, but that the whole shall pass by his will; and this, notwithstanding it may be divisible between the two legatees, if received by both. But where an aliquot part is bequeathed to one, and another aliquot part to another, then they are separate legacies, and that part which is bequeathed to one is not bequeathed to the other; as, if the testator should say, 'I give one-half of my bank stock to each of my two sons,' or, 'I give my bank stock to my two sons, one-half to each.' Here there is an assignment of parts by the testator himself; and the legacies are separate, and not conjoint.

The distinction between these forms of expression and that in the will under consideration may seen somewhat nice; but it is not more so than that which prevails in the English law between a condition annexed to the gift and one annexed to the payment or delivery of the thing given. Thus, a bequest of $100 to A when he attains twenty-one years is a conditional gift, and fails if A dies before twenty-one. But a bequest to A of $100, to be paid to him when he attains that age, is an absolute gift, and does not fail though he dies before, the condition being annexed only to the payment.

Before the adoption of the French Civil Code, there was some difference of opinion on the subject under consideration; and this may account for the passages quoted by the plaintiffs in error from Domat. The provisions of the Civil Code on the subject were probably intended to settle the dispute. The Civil Code of Louisiana exactly follows that of France, and declares as follows: 'Accretion shall take place for the benefit of the legatees in case of the legacy being made to several conjointly. The legacy shall be reputed to be made conjointly, when it is made by one and the same disposition, without the testator's having assigned the part of each co-legatee in the thing bequeathed.' This language has received from the French courts and jurists abundant construction. Thus, where the disposition was as follows: 'I make as my heirs general and universal Mr. Plant e and his two sisters, to enjoy and dispose of my entire inheritance after my decease by equal portions,' the Court of Cassation adjudged that the declaration as to parties did not apply to the gift itself, but only to the execution of it, or the mode in which the legatees were to divide it between them, and, consequently, that the right of accretion arose in reference to the part of one of the legatees who died before the testator in favor of the others. Duranton, lib. 3, tit. 2, vol. ix. (Paris ed.) art. 507. This was in 1808; and similar decisions have been made since that time by the same court. Duranton observes: 'We adopt this doctrine. The assignment of equal aliquot parts to each of the legatees, as the half, the third, &c., works a division of the disposition, and makes as many legacies as there are assigned parts; but the mere declaration of equality of rights in the thing bequeathed acts only on the division, and not on the gift itself.'

Many more French authorities to the same effect could be referred to; but it is unnecessary, as the Supreme Court of Louisiana has passed upon the question, and its decision is binding on us as a rule of property. In the case of Parkinson v. McDonough, 4 Martin, N. S. 246, decided in 1826, the substantive words of the bequest were the same as in the case before us,-namely, 'I bequeath to the orphan children of my old friend Godfrey Duher, Mary, Nancy, James, and Eliza, one-eighth of all my property, to be equally divided among them;' and the decision was, that the legacy was conjoint, and consequently, that the portion of one of the legatees who died before the testator went by accretion to the survivors. The court say, 'The distinction between a bequest of a thing to many in equal portions, and one wherein a testator gives a legacy to two or more individuals, to be divided in equal portions, appears at first view extremely subtle and refined. The difference of phraseology in those two modes of bequeathing is so slight, as not readily to convey to the mind any difference in ideas, and can only produce this effect by separating the members of the sentence in the latter phrase; in truth, to create two distinct sentences, each complete in itself with regard to sense and meaning,-the one relating to the disposition of the will, the other to its execution. We might hesitate much in adopting this method of construction, were it not sanctioned by the authorities cited in behalf of the appellants: the doctrine contended for is fully supported by the commentary of Touillier on the 1044th article of Code Napoleon, which we have already shown to be precisely similar to that of our own code on the same subject.'

This decision was followed by the same court in 1855, in the case of Lebeau v. Trudeau, 10 La. Ann. 164, which was even a stronger case in favor of assignment of separate parts than that of Parkinson v. McDonough, the words of the bequest being, 'After my debts are paid, my property shall be divided in equal proportions among the persons hereinafter named.' After naming the legatees, the testator says, 'I have hereinbefore mentioned the names of the persons to whom I bequeath all my property.' After a full discussion of the question, it was decided that the legacy was conjoint, and that accretion took place. The court uses the following language: 'The assigning of the parts of each co-legatee means something more than is comprehended in the language of this will, which, according to my understanding of it, simply directs their participation of his whole estate in equal portions. I apprehend the terms used in the Code contemplate an express specification and assignment of the respective portions of the legatees, calling each to his particular part. But in the present case, there is not that specific and distinct assignment of the parts which in my judgment is necessary to constitute a distinct legacy to each, of a distinct portion of the deceased's fortune. He appears to me, on the contrary, to have called them conjointly to partake equally in the totality of his estate, and has mentioned the equality of their portions for the purpose of regulating the distribution of that totality. They are conjointly his universal legatees.'

In view of these decisions, we cannot hesitate to decide that the legacy in question in a conjoint legacy, and that the right of accretion took place in favor of the defendant in error.

Judgment affirmed.

title: Mackie v. Story/Opinion of the Court


text: Talk:Mackie v. Story/Opinion of the Court


text:
Bond v. Moore

ERROR to the Supreme Court of the State of Tennessee.

This in an action commenced in the

This is an action commenced in the County, Tenn., against the defendant in error as indorser of a bill of exchange drawn at Trenton, Tenn., Feb. 13, 1862, upon a firm in New Orleans, La., and payable four months after date. The bill was not presented in New Orleans until June 20, 1865, when, payment being refused, the plaintiff caused it to be protested.

In their declaration the plaintiffs averred that the earlier presentation of the bill in New Orleans was prevented by the obstructions of war, and the interruption of intercourse between their place of residence and that of the drawees.

Among other defences the defendant interposed a plea that the bill was not presented within a reasonable time after the removal of such alleged obstructions.

The plaintiffs asked the court to charge the jury that the bill of exchange could not have been legally presented for payment until after the 13th June, 1865, the date of the proclamation of President Johnson restoring Tennessee to commercial relations with the United States; that if the jury find that, after that date, the plaintiffs exercised reasonable diligence to have the bill presented to the drawees, and did so present it, and demand payment, which was refused, and that thereupon the same was protested for non-payment, and notice thereof given to the indorser,-they must find for the plaintiffs.

The court refused so to charge, but charged in substance that the impediment of non-intercourse between the State of Tennessee and the city of New Orleans-an impediment interposed by the existence of the war of the rebellion, and during which the necessity of presenting the bill for payment was suspended-was removed and ceased to exist when there was an actual cessation of hostilities; and that the time when this actual cessation occurred was a question to be decided by the jury from the proof before them.

There was a verdict for the defendant. The judgment thereon was affirmed by the Supreme Court of the State; whereupon the case was brought here.

Mr. Edward J. Read for the plaintiffs in error.

''M. Richard T. Merrick, contra''.

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

title: Bond v. Moore


text: Talk:Bond v. Moore

title: Talk:Bond v. Moore


text:
Bond v. Moore/Opinion of the Court

The only question in this record which we are asked to consider is as to the effect of the President's proclamation of June 13, 1865, 13 Stat. 763, upon the rights and duties of parties to commercial paper, residing respectively during the late civil war in Tennessee and New Orleans, when the paper matured after the occupation of New Orleans by the national forces and before the date of that proclamation. This, under our ruling in Matthews v. McStea, 20 Wall. 649, is a Federal question.

On the part of the plaintiffs in error, it is contended that the holders of such paper could not lawfully take steps to charge the parties by demand and notice until the proclamation was made, because up to that time the war existed as a fact, and the parties occupied towards each other the relation of public enemies. All restrictions upon commercial intercourse between Tennessee and New Orleans were removed by an executive order published April 29, 1865, 13 Stat. 776, which was followed by an executive proclamation of similar purport under date of May 22, 1865, id. 757, so that while the war existed as a political fact until June 13, the date of the official announcement of its close, business intercourse between the citizens of the two places was allowed after April 29. Bond, therefore, as the holder of the bill upon which this suit is brought, might properly have demanded its payment by the drawee in New Orleans, and notified his indorser in Tennessee of the nonpayment at any time after that date. Neither his rights nor his duties in this particular were in any manner dependent upon or affected by the proclamation of June 13. We have already decided to the same effect in Masterson v. Howard, 18 Wall. 105, and Matthews v. McStea, 91 U.S. 7.

Judgment affirmed.

title: Bond v. Moore/Opinion of the Court


text: Talk:Bond v. Moore/Opinion of the Court

title: Talk:Bond v. Moore/Opinion of the Court


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West Wisconsin Railway Company v. Board of Supervisors of Trempealeau County

ERROR to the Supreme Court of the State of Wisconsin.

Argued by Mr. P. L. Spooner and ''Mr. Matt. H. Carpenter for the plaintiff in error, and by Mr. S. U. Pinney'' for the defendants in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:West Wisconsin Railway Company v. Board of Supervisors of Trempealeau County


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West Wisconsin Railway Company v. Board of Supervisors of Trempealeau County/Opinion of the Court

The facts of this case are substantially the same with those of Tucker v. Ferguson, 22 Wall. 527, and the question presented for our determination does not vary materially from the one there decided.

The United States granted certain lands to the State of Wisconsin to aid in the construction of railroads in that State. The State transferred a portion of the lands to the plaintiff in error for the purpose and upon the terms and conditions specified by Congress.

Patents for designated quantities of the land were to issue to the company as successive sections of the road of twenty miles each were completed. In the mean time, the title of the company was inchoate. On the 2d of April, 1864, the legislature of Wisconsin passed an act, whereby, in the first section, it was declared that all the lands in question the title whereto should become vested in the company should be exempt from taxation for ten years from the passage of the act. The second section declared that such lands should become subject to taxation as soon as they were sold, leased, or conveyed by the company. The last clause of this section is as follows: 'Provided that said lands may be mortgaged for the purpose of raising funds to build said railroad without being subject to taxation for the time aforesaid.'

In August, 1868, the company executed a mortgage of its roadway and rolling-stock, and of all the lands it might thereafter acquire, as security for its bonds, to the amount of $4,000,000, maturing at different times. By another act, of the 16th of March, 1870, the exemption from taxation was further extended for ten years. But it was declared: 'And it is further provided, and this act is upon the express co dition that if said railroad company shall not have built their said road within two years from the passage of this act, then, and in that case, this act shall be null and void: provided, that this act shall not apply to Pierce County.'

The bonds secured by the deed of trust were issued in successive series, in the years 1868, 1870, 1871, and 1872. The company realized from the four millions of bonds about $3,200,000, and applied the amount received to the construction of their road. A part of the road was completed in 1868, forty-five miles in 1870, and the entire line during the month of November, 1871. By an act of the legislature of March 15, 1871, it was enacted that the lands in Trempealeau County belonging to any railroad company 'not used for road-bed or depot purposes shall be liable to taxation the same as other real estate.' By an act of March 24, 1871, the exemption act of March 16, 1870, was amended so that it should not apply to Trempealeau County. The tax in question was levied in 1871, and the sale for its non-payment complained of was made in 1872. The exemption created by the act of 1864 was to terminate in 1874. That specified in the act of 1870 was then to commence.

The plaintiff in error insists that these acts-the lands of the company having been mortgaged pursuant to the first, and the road having been completed within the time limited by the second created a contract within the contract clause of the Constitution of the United States, and that, therefore, the two acts of 1870 abrogating the exemptions were void.

In the argument here, a large share of the discussion was devoted to sect. 1, art. 2, of the constitution of Wisconsin. In our view, it is unnecessary to consider that branch of the case, and it will not be further adverted to.

One who has examined this case cannot look through Tucker v. Ferguson, as reported, without being struck with the similarity of the points and arguments, as well as the substantial identity of the facts, in the two cases. The latter case was carefully considered in all its aspects by this court. It is unnecessary to reproduce at length the views then expressed. In that case, 22 Wall. 575, we said:--

'The taxing power is vital to the functions of government. It helps to sustain the social compact, and to give it efficacy. It is intended to promote the general welfare. It reaches the interests of every member of the community. It may be restrained by contract in special cases for the public good, where such contracts are not forbidden. But the contract must be shown to exist. There is no presumption in its favor. Every reasonable doubt should be resolved against it. Where it exists, it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require. It is in derogation of public right, and narrows a trust created for the good of all.'

We hold here, as we held there, that the exemptions in question were gratuities offered by the State, without any element of a contract. There was no assurance or intimation that they were intended to be irrevocable, or that the laws in question should not be at all times subject to modification or repeal in like manner as other legislation. If a different intent had existed, it would doubtless have been clearly manifested by the language employed. It would not have been left to encounter the possible results of such a struggle and conflict as have occurred in this litigation.

The State asked for no promise from the company, and the company gave none. It was optional with the company to mortgage its lands or not, and to complete or not to complete the road within two years. The early completion of the road was beneficial to the company as well as to the public. Until then, there could be no income, and there was a constant loss of interest. Every step of progress added to the value of the lands of the company through which the road was to pass.

Each party was at liberty to take its own course If the company came within the condition specified in the act of 1870, it would be in a position to take the gratuity offered by that act. If this were so, the State might continue or withdraw that gratuity when it took effect, as it might deem best for the public welfare; and it possessed the same power with reference to the exemption created by the prior act of 1864, while that act was operative. Neither party was, nor was intended to be, in any wise bound to the other. The State was at all times wholly unfettered as to both exemptions. The company chose to bring itself within the condition of the act of 1870. The State chose to continue the gratuity for a time, and then withdrew it. The exemption given by both acts was abrogated a year before the bonds of the last series were issued, and before the first term of exemption expired or the second began. The State did what it had an unqualified right to do. In such cases, a reasonable doubt is fatal to the claim. Prima facie every presumption is against it. It is only when the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported. Providence Bank v. Billings, 4 Pet. 561; Christ's Church v. Philadelphia, 24 How. 302; Gilman v. Sheboygan, 2 Black, 513; Herrick v. Randolph, 13 Vt. 531; Easton Bank v. Commonwealth, 10 Penn. St. 450; People v. Roper, 35 N. Y. 629.

We hold the conclusion we have announced to be the law of this case. With its ethics we have nothing to do. That subject is not open to our consideration.

Judgment affirmed.

MR. JUSTICE DAVIS did not sit in this case.


text: Talk:West Wisconsin Railway Company v. Board of Supervisors of Trempealeau County/Opinion of the Court


text: Index:Footprints of former men in far Cornwall.djvu


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Badger v. United States ex rel. Bolles

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

On the seventh day of January, 1875, the relators filed in the Circuit Court for the Northern District of Illinois their petition for a writ of mandamus against the plaintiffs in error, alleging that, on May 7, 1874, they recovered, in said court, two judgments at law against the town of Amboy, a municipal corporation under the township organization laws of the State of Illinois; that the supervisor, town-clerk, and justices of the peace of the town constituted a board of auditors, not less than three being a quorum, whose duty it was to convene on the Tuesday preceding the second Tuesday of September, and on the Tuesday preceding the first Tuesday in April, in each year, to examine and audit town accounts; that on the 29th of August, 1874, said board of auditors consisted of Chester Badger, the supervisor, Charles E. Ives, the town-clerk, Lee Cronkrite, Oliver F. Warrener, Simon Badger, and William B. Andrus, justices of the peace of said town; that the relators on that day presented to said board a sworn statement that the judgments were just and unpaid, and should be audited and allowed; they also at the same time delivered to, and filed with, the clerk of the said town, a certified copy of said judgments, which the board neglected and refused to audit, and has refused ever since; that Chester Badger, Ives, Warrener, and Andrus pretended to resign their offices, and would not discharge the duties thereof, but that no other person had been elected or appointed to succeed them; that the other two justices, Simon Badger and Cronkrite, to defeat the collection of said judgments, refused to act as such auditors, or meet and associate with the collector and assessor of said town to constitute a board of auditors, nor would they by appointment fill said alleged vacancies; that the acts of the parties aforesaid were to hinder and delay the collection of the judgments; that, by reason of their said acts, relators have been unable to obtain the necessary levy and collection of taxes to pay said judgments, and that no provision has been made for the payment thereof by the said town. Relators pray for summons to award a mandamus against aid parties, to compel them to audit said judgments.

The respondents filed their answer on the 2d of February, 1875. They admit that on the 29th of August, 1874, Chester Badger, supervisor, and Warrener and Andrus, justices of the peace, resigned their respective offices, and that on the 31st of the same month Ives, town-clerk, also resigned. That, pursuant to the provisions of sect. 4, art. 10, of the township organization act of Illinois, Revised Laws 1874, p. 1079, said resignations were made to and accepted by Cronkrite and Simon Badger, justices of the town, who forthwith gave notice to the town-clerk of the resignation of Chester Badger, Andrus, and Warrener, and said clerk made a minute thereof upon the records of said town before he resigned his office. That the resignation of Ives, the town-clerk, was likewise duly accepted, on the said thirty-first day of August, by said justices, and notice thereof entered upon the town records. Respondents insist that their resignations were tendered and accepted in good faith, and that thereby they ceased to be town officers. They admit that no successors have been elected or appointed, and that the remaining two justices of the peace will not act as town auditors, or associate with the collector and assessor of said town, nor have they filled said vacancies by appointment.

The relators demurred to the answer; which demurrer being sustained, and the respondents electing to stand by their answer, the court gave judgment in favor of the relators, and ordered a peremptory mandamus to issue as prayed for in their petition. The respondents thereupon sued out this writ.

Submitted on printed arguments by Mr. Thomas J. Henderson for the plaintiffs in error, and by Mr. George O. Ide, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Badger v. United States ex rel. Bolles


text: Talk:Badger v. United States ex rel. Bolles


text:
Badger v. United States ex rel. Bolles/Opinion of the Court

No part of the answer in our judgment requires consideration, except that which raises the point of the legality of the resignation of the parties named. If they had ceased to be officers of the town when the mandamus was issued, there may be difficulty in maintaining the order awarding a peremptory mandamus against them. If they were then such officers, the case presents no difficulty.

The alleged resignations of the supervisor and town-clerk were accepted by the justices of the town; but their successors had not been qualified, nor, indeed, had they been chosen when the petition was filed. Does a supervisor, town-clerk or justice of the peace of the State of Illinois cease to be an officer when his resignation is tendered to and accepted by a justice of the peace, or does he continue in office until his successor is chosen and qualified?

By the common law, as well as by the statutes of the United States, and the laws of most of the States, when the term of office to which one is elected or appointed expires, his power to perform its duties ceases. People v. Tilman, 8 Abb. Pr. 359; 30 Barb. 193. This is the general rule.

The term of office of a district attorney of the United States is fixed by statute at four years. When this four years comes round, his right or power to perform the duties of the office is at an end, as completely as if he had never held the office. Rev. Stat. sect. 769. A judge of the Court of Appeals of the State of New York, or a justice of the Supreme Court, is elected for a term of fourteen years, and takes his seat on the first day of January following his election. When the 14th of January thereafter is reached, he ceases to be a judicial officer, and can perform no one duty pertaining to the office. Whether a successor has been elected, or whether he has qualified, does not enter into the question. As to certain town officers, the rule is different. 1 Rev. Stat. (N. Y.) 340, sect. 30.

The system of the State of Illinois seems to be organized upon a different principle. Thus, the Supreme Court consists of seven judges, who are required to possess certain qualifications of age and of residence, and who are elected for the term of nine years (Code of Illinois, 1874, pp. 69, 70), at which time it is provided that the 'term of office shall expire.'

Circuit judges in like manner are elected for a term of six years. Id. p. 701. County judges and county clerks, probate judges and State's attorneys, are elected for the term of four years. Id. pp. 71, 72.

As to all of these officers, including judges, it is provided in the constitution of Illinois that 'they shall hold their offices until their successors shall be qualified.' Id. p. 73, sect. 32. They may thus hold their offices much longer than the term for which they are elected.

The provisions as to town officers are of the same character. It is enacted (art. 7, sect. 61, p. 1075) that, at the town meeting in April of each year, there shall be elected in each town one supervisor and one town-clerk, who shall hold their offices for one year, and until their successors are elected and qualified, and such justices of the peace as are provided by law.

Of justices of the peace, it is enacted that there shall be elected in each town not less than two nor more than five (depending upon the population of the town), who shall hold their offices 'for four years, or until their successors are elected and qualified.' p. 637, sect. 1.

The qualifying so often spoken of is defined as to town officers by art. 9, sect. 85:--

'Qualifying. Every person elected or appointed to the office of supervisor, town-clerk, &c., before he enters upon the duties of his office, and within ten days after he shall be notified of his election or appointment, shall take and subscribe, before some justice of the peace or town-clerk, the oath or affirmation of office prescribed by the constitution, which shall, within eight days thereafter, be filed in the office of the town-clerk.'

Thus far it would seem plain that the office of a supervisor or town-clerk could not be terminated until his successor subscribed and filed his oath of office, and that when the supervisor and town-clerk before us supposed that their offices were at an end by their resignations, they were in error.

There are two other provisions, which, it is supposed, have some bearing upon the point we are considering. Sect. 97 (p. 1079) provides that whenever a vacancy occurs in a town office by death, resignation, removal from the town, or other cause, the justices may an appointment which shall continue during the unexpired term, and until others are elected or appointed in their places. By sect. 100, the justices of the town may, for sufficient cause shown to them, accept the resignation of any town officer, and notice thereof shall immediately be given to the town-clerk.

A similar provision as to the elective officers of a higher grade is found in the statutes. By c. 46, sect. 124 et seq. (p. 466), it is provided that resignations of elective offices may be made to the officer authorized to fill the vacancy or to order an election to fill it, and the various events which may cause a vacancy are defined. Governors, judges, clerks of courts, &c., are specifically referred to.

The provision as to these officers and as to the town offices are parts of the same system. The resignations may be made to and accepted by the officers named; but, to become perfect, they depend upon and must be followed by an additional fact; to wit, the appointment of a successor, and his qualification. When it is said in the statute that the resignation may be thus accepted, it is like to the expiration of the term of office. In form the office is thereby ended, but to make it effectual it must be followed by the qualification of a successor.

Sect. 92 (p. 1078) is also referred to: 'Town officers, except as otherwise provided, shall hold their offices for one year, and until others are elected or appointed in their places and are qualified.' The term 'otherwise provided' has reference to the original term fixed by law, and not to resignations or vacancies. Thus, justices hold for four years, supervisors and constables f r one year; and should there be created or found to exist a town officer, and no provision be made as to the duration of his office, this section is intended to meet the case by fixing one year as such term. It has nothing to do with the case before us, further than it reiterates the rule everywhere found in the statutes of Illinois, that such person shall serve not only for one year, but until his successor shall qualify.

''People ex rel. Williamson v. McHenry, 52 N. Y. 374, was the case of quo warranto'' to test the title to the office of collector of the town of Flatbush, Kings County, N. Y. The defendant was elected such collector on the fifth day of April, 1870. On the fourth day of April, 1871, the relator was elected collector of the same town, but did not take or file an oath of office or execute the bond to the supervisors of the town. The board of supervisors recognized the defendant as the legal collector, and delivered to him the warrant for the collection of the taxes of 1871. To settle the dispute, the relator brought the suit referred to. The attempt of the defendant to sustain himself under an act of the legislature, extending the term of office of the collector of Kings County to three years, failed. The court held the act to be unconstitutional as to existing collectors. The defendant, however, succeeded in retaining the office, and had judgment that he was the legal collector; for the reason, that, although the relator was legally elected, he had failed to take the oath of office. The statute of New York as to town officers was in substance the same as that of the State of Illinois. It was as follows: 'Town officers shall hold their offices for one year, and until others are chosen or appointed in their places, and have qualified.'

In 6 Bissell, 308, is found the opinion of Judge Blodgett in the case we have before us. He holds that a resignation does not relieve a supervisor or town-clerk from the responsibilities of his office until a successor is appointed. We think such is the law.

In People v. Hopson, 1 Den. 574, and in People v. Nostrand, 46 N. Y. 382, it was said, that when a person sets up a title to property by virtue of an office, and comes into court to recover it, he must show an unquestionable right. It is not enough that he is an officer de facto, that he merely acts in the office; but he must be an officer de jure, and have a right to act. So, we think, where a person being in an office seeks to prevent the performance of its duties to a creditor of the town, by a hasty resignation, he must see that he resigns not only de facto, but de jure; that he resigns his office not only, but that a successor is appointed. An attempt to create a vacancy at a time when such action is fatal to the creditor will not be helped out by the aid of the courts.

Judgment affirmed.