text:
District of Columbia v. Washington Market Company/Opinion of the Court

We see no ground of support for the suggestion of counsel that congress, by the act incorporating the Washington Market Company and fixing the terms for their use of the public property granted to them, established an irrevocable charitable trust for the poor of Washington City, and thereby disabled itself from authorizing any subsequent changes in the mode and conditions of that grant; nor are we willing to accept the debates that are reported as occurring in congress at the time of the passage of the deficiency appropriation act of March 3, 1873, as evidence of the meaning of the clause on which the controversy in this case depends. The question is whether, according to its correct construction, that clause authorized the parties to execute the agreement into which they entered.

Upon a consideration of the language of the provision, it becomes apparent that the sum of money appropriated by it as compensation to the District of Columbia, for its interest in the city-hall building, was to be applied only for the erection of a suitable building for the district offices. No part of it could lawfully be expended in the purchase of land for a site. It is equally plain that no public lands belonging to the United States were granted to be used for that purpose. Express authority is given to the governor and board of public works to make arrangements to secure land fronting on Pennsylvania and Louisiana avenues, between Seventh and Ninth streets, if they deem it advisable, for that purpose. It is not denied that, in connection with the express declaration that no right to use any public ground was thereby granted, this description necessarily covered a portion of the real estate granted to the market company by their act of incorporation. Any arrangement to secure it as a site for the district buildings must necessarily be made with them. And power granted to the authorities of the District of Columbia to make such an arrangement also carried with it power on the part of the market company to become parties to it. The fact that the latter are not expressly named is without legal significance. The designation of the property was also the designation of its owner.

It is evident, also, that the arrangement authorized to be made was described as intended to have the effect of securing the land for the purpose. This necessarily implied that the arrangement, when made as authorized, should be final. The suggestion that it was intended to be preparatory and preliminary only, as the basis of a report to be made afterwards to congress for its approval and ratification, finds no warrant in the context, and is quite clearly negatived by the terms in which the act repels the idea that the arrangement to be made should in any way commit the United States to any liability to pay for any expenditures, either for the land itself or the improvements to be made upon it. It is, therefore, clearly to be inferred that the arrangement intended was to be made with the market company for a designated portion of their land, and that it must be effected without the outlay of any money.

This could be accomplished in but one way. It was to induce the market company to relinquish their right to the exclusive use of the specified portion of their land, upon the basis of some modificacation of the terms upon which it was held. As these embraced payments of money, which the market company were under obligation to pay to the District of Columbia, and which the government of the district had exclusive power to administer for the purposes described in the act, it follows that it must have been intended to authorize such an arrangement in respect to these obligations of the market company as would furnish to the latter a consideration and inducement for a release of a part of their property. And no consideration for the release of a part of demised property is more suitable to the nature of the relation between the parties than an equitable or agreed apportionment of the rent. Such was the form and substance of the arrangement in question. The adjustment of the arrearages of rent was a legitimate incident, whether the prior agreement for a reduction of the amount from $25,000 to $20,000 was lawful, at the time it was first made, or not. It became so by becoming part of the arrangement finally entered into. Whether other provisions of the arrangement, not brought into this controversy, such as the provision relating to the maximum of taxes thereafter to be assessed, and in respect to the rental of stalls to be charged to occupants in the market-house building, are lawful and binding, it is not necessary to decide, as they are not proper matters of consideration in the present action.

We are of opinion that there is no error in the record of this judgment, and it is accordingly affirmed.


text: Talk:District of Columbia v. Washington Market Company/Opinion of the Court

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


text:
Wilkins v. Ellett

W. Y. C. Humes and D. H. Poston, for plaintiff in error.

S. P. Walker and R. T. McNeal, for defendant in error.

GRAY, J.

title: Wilkins v. Ellett


text: Talk:Wilkins v. Ellett

title: Talk:Wilkins v. Ellett


text:
Wilkins v. Ellett/Opinion of the Court

This is an action of assumpsit on the common counts, brought in the circuit court of the United States for the western district of Tennessee. The plaintiff is a citizen of Virginia, and sues as administrator, appointed in Tennessee, of the estate of Thomas N. Quarles. The defendant is a citizen of Tennessee, and surviving partner of the firm of F. H. Clark & Co. The answer sets up that Quarles was a citizen of Alabama at the time of his death; that the sum sued for has been paid to William Goodloe, appointed his administrator in that state, and has been inventoried and accounted for by him upon a final settlement of his administration; and that there are no creditors of Quarles in Tennessee. The undisputed facts, appearing by the bill of exceptions, are as follows:

Quarles was born at Richmond, Virginia, in 1835. In 1839 his     mother, a widow, removed with him, her only child, to      Courtland, Alabama. They lived there together until 1856, and     she made her home there until her death, in 1864. In 1856 he     went to Memphis, Tennessee, and there entered the employment      of F. H. Clarke & Co., and continued in their employment as a      clerk, making no investments himself, but leaving his surplus      earnings on interest in their hands until January, 1866, when      he went to the house of a cousin in Courtland, Alabama, and      while there died by an accident, leaving personal estate in      Alabama. On the twenty-seventh of January, 1866, Goodloe took     out letters of administration in Alabama, and in February,      1866, went to Memphis, and there, upon exhibiting his letters      of administration, received from defendant the sum of money due to Quarles, amounting to $3,455.22, (which is the      same for which this suit is brought,) and included it in his      inventory and in his final account, which was allowed by the      probate court in Alabama. There were no other debts due from     Quarles in Tennessee. All his next of kin resided in Virginia     or in Alabama; and no administration was taken out on his      estate in Tennessee until June, 1866, when letters of      administration were there issued to the plaintiff.

There was conflicting evidence upon the question whether the domicile of Quarles at the time of his death was in Alabama or Tennessee. The jury found that it was in Tennessee, under instructions, the correctness of which we are not prepared to affirm, but need not consider, because, assuming them to be correct, we are of opinion that the court erred in instructing the jury that if the domicile was in Tennessee they must find for the plaintiff; and in refusing to instruct them, as requested by the defendant, that the payment to the Alabama administrator before the appointment of one in Tennessee, and there being no Tennessee creditors, was a valid discharge of the defendant, without reference to the domicile.

There is no doubt that the succession to the personal estate of a deceased person is governed by the law of his domicile at the time of his death; that the proper place for the principal administration of his estate is that domicile; that administration may also be taken out in any place in which he leaves personal property; and that no suit for the recovery of a debt, due to him at the time of his death, can be brought by an administrator as such in any state in which he has not taken out administration. But the reason for this last rule is the protection of the rights of citizens of the state in which the suit is brought; and the objection does not rest upon any defect of the administrator's title in the property, but upon his personal incapacity to sue as administrator beyond the jurisdiction which appointed him.

If a debtor, residing in another state, comes into the state in which the administrator has been appointed, and there pays him, the payment is a valid discharge everywhere. If the debtor, being in that state, is there sued by the administrator, and judgment recovered against him, the administrator may bring suit in his own name upon that judgment in the state where the debtor resides. Talmage v. Chapel, 16 Mass. 71.

The administrator, by virtue of his appointment and authority as such, obtains the title in promissory notes or other written evidences of debt, held by the intestate at the time of his death, and coming to the possession of the administrator; and may sell, transfer, and indorse the same; and the purchasers or indorsees may maintain actions in their own names against the debtors in another state, if the debts are negotiable promissory notes, or if the law of the state in which the action is brought permits the assignee of a chose in action to sue in his own name. Harper v. Butler, 2 Pet. 239; SHAW, C. J., in Rand v. Hubbard, 4 Metc. 252, 258-260; Peterson v. Chemical Bank, 32 N. Y. 21. And on a note made to the intestate, payable to bearer, an administrator appointed in one state may sue in his own name in another state. Barrett v. Barrett, 8 Greenl. 353; Robinson v. Crandall, 9 Wend. 425.

In accordance with these views, it was held by this court, when this case was before it after a former trial, at which the domicile of the intestate appeared to have been in Alabama, that the payment in Tennessee to the Alabama administrator was good as against the administrator afterwards appointed in Tennessee. Wilkins v. Ellett, 9 Wall. 740.

The fact that the domicile of the intestate has now been found by the jury to be in Tennessee does not appear to us to make any difference. There are neither creditors nor next of kin in Tennessee. The Alabama administrator has inventoried and accounted for the amount of this debt in Alabama. The distribution among the next of kin, whether made in Alabama or in Tennessee, must be according to the law of the domicile; and it has not been suggested that there is any difference between the laws of the two states in that regard.

The judgment must, therefore, be reversed, and the case remanded with directions to set aside the verdict and to order a new trial.

title: Wilkins v. Ellett/Opinion of the Court


text: Talk:Wilkins v. Ellett/Opinion of the Court


text:
Hampton v. Phipps

The appellee, who was a complainant below, is the  holder, and filed his bill in equity, on behalf of   himself and the other holders of bonds, executed and   delivered by Theodore D. Wagner and William L. Trenholm,   to the amount of $710,000, and paid to creditors in   settlement of the liabilities of two insolvent firms, in   which they were two of the copartners. These bonds were  dated January 1, 1868. The payment of the principal and  interest of each of these bonds was guarantied, by   writing indorsed thereon, by George A. Trenholm and   James T. Welsman, who were sureties merely. These  sureties entered into a written agreement each with the   other, dated May 3, 1869, in which it was recited that,   in becoming parties to said guaranty, they had agreed   between themselves that the said George A. Trenholm   should be liable for the sum of $400,000, and the said   James T. Welsman for the sum of $310,000, of the   aggregate amount of the bonds, and no more, and that   each would be respectively liable to the other for the   full discharge of the said sum and proportion by them   respectively undertaken, and that each would take and keep harmless and indemnify the      other from all claim, by reason of the said guaranty, beyond      the amount or proportion respectively assumed, as stated; and      it was thereby further agreed that, at any time when either      of them should so require, each should, by mortgage of real      estate, secure to the other more perfect indemnity, because      of the said guaranty. Thereupon, and on the same date, each     executed to the other a mortgage upon real estate of which      they were respectively the owners, the condition of which was      that the mortgagor should perform on his part the said      agreement of that date. The guarantors, as well as the     principal obligors, had become insolvent before the present      bill was filed.

It also appears that, of the sum of $573,300 due on account of outstanding bonds, George A. Trenholm, one of the guarantors, had paid $108,454, leaving still due from his estate to make good the proportion assumed by him $214,532; and that the proportion for which the estate of James T. Welsman, the other guarantor, was liable, was $250,314, of which nothing had been paid The appellees claimed that the mortgages interchanged between the guarantors inured to their benefit as securities for the payment of the principal debt, and prayed for a foreclosure and sale for that purpose.

This was resisted by the appellants, one of whom, Hampton's administrator, as a judgment creditor of George A. Trenholm and James T. Welsman, claimed a lien on the mortgaged premises; the others, executrixes of James Welsman, deceased, being subsequent mortgagees of the same property.

A decree was passed in favor of the complainants, according to the prayer of the bill, and is now brought under reveiw by this appeal.

T. G. Barker and W. G. De Saussure, for appellants.

James Lowndes and A. G. Magrath, for appellee.

[Argument of Counsel from pages 261-263 intentionally omitted]

MATTHEWS, J.

title: Hampton v. Phipps


text: Talk:Hampton v. Phipps

title: Talk:Hampton v. Phipps


text:
Hampton v. Phipps/Opinion of the Court

The facts upon which the controversy in this suit depends are as follows:

The ground on which the court below proceeded seems to have been that the mortgages given by the co-sureties, each to the other, were in equity securities for the payment of the principal debt, which inured to the benefit of the creditors upon the principle of subrogation. The application of the principle of subrogation in favor of creditors and of sureties has undoubtedly been frequent in the courts of equity in England and the United States, and is an ancient and familiar head of their jurisdiction.

It was distinctly stated, as to creditors, in the early case of Maure v. Harrison, 1 Eq. Cas. Abr. 93, where the whole report is as follows: 'A bond creditor shall in this court, have the benefit of all counter-bonds or collateral security given by the principal to the surety; as if A. owes B. money, and he and C. are bound for it, A. gives C. a mortgage or bond to indemnify him, B. shall have the benefit of it to recover his debt.' And the converse of the rule was stated by Sir WILLIAM GRANT in Wright v. Morley, 11 Ves. 12, where he said: 'I conceive that as a creditor is entitled to the benefit of all the securities the principal debtor has given to his surety, the surety has full as good an equity to the benefit of all the securities the principal gives to the creditor.' And it applies equally between sureties, so that securities placed by the principal in the hands of one to operate as an indemnity by payment of the debt, shall inure to the benefit of all.

Many sufficient Maxims of the law conspire to justify the rule. To avoid circuity and multiplicity of actions; to prevent the exercise of one's right from interfering with the rights of others; to treat that as done which ought to be done; to require that the burden shall be borne by him for whose advantage it has been assumed; and to secure equaity among those equally obliged and benefited, are perhaps not all the familiar adages which may legitimately be assigned in support of it. It is, in fact, a natural and necessary equity which flows from the relation of the parties, and though not the result of contract, is nevertheless the execution of their intentions. For, when a debtor, who has given personal guaranties for the performance of his obligation, has further secured it by a pledge in the hands of his creditor, or an indemnity in those of his surety, it is conformable to the presumed intent of all the parties to the arrangement, that the fund so appropriated shall be administered as a trust for all the purposes, which a payment of the debt will accomplish; and a court of equity accordingly will give to it this effect. All this, it is to be observed, as the rule verbally requires, presupposes that the fund specially pledged and sought to be primarily applied is the property of the debtor, primarily liable for the payment of the debt; and it is because it is so that equity impresses upon it the trust, which requires that it shall be appropriated to the satisfaction of the creditor, the exoneration of the surety, and the discharge of the debtor. The implication is that a pledge made expressly to one is in trust for another, because the relation between the parties is such that that construction of the transaction best effectuates the express purpose for which it was made. It follows that the present case cannot be brought within either the terms or the reason of the rule; for, as the property, in respect to which the creditors assert a lien, was not the property of the principal debtor, and has never been expressly pledged to the payment of the debt, so no equitable construction can convert it by implication into a security for the creditor.

It is urged that the logic of the rule would extend it so as to cover the case of all securities held by sureties for purposes of indemnity of whatsoever character and by whomsoever given. But this suggestion is founded on a misconception of the scope of the rule and the rational grounds on which it is established. Of course, if an express trust is created, no matter by whom, nor of what, for the payment of the debt, equity will enforce it, according to its terms, for the benefit of the creditor, as a cestui que trust; but the question concerns the creation of a trust, by operation of law, in favor of a creditor, in a case where there was no duty owing to him, and no intention of bounty. A stranger might well choose to bestow upon a surety a benefit and a preference, from considerations purely personal, in order to make good to him exclusively any loss to which he might be subjected in consequence of his suretyship for another. In such a case, neither co-surety nor creditor could, upon any ground of priority in interest, claim to share in the benefit of such a benevolence.

There may be, indeed, cases in which it would not be inequitable for the debtor himself to make specific pledges of his own property, limited to the personal indemnity of a single surety, without benefit of participation or subrogation; as, when the liability of the surety was contingent upon conditions not common to his co-sureties, and which may never become absolute. Hopewell v. Bank of Cumberland, 10 Leigh, 206.

We are referred by counsel to the case of Curtis v. Tyler, 9 Paige, 432, as an instance in which the rule has been extended to securities in the hands of a surety not derived from the principal debtor. But the fact in that case is otherwise. The question was as to the right of an assignee of a mortgage to the benefit of the guaranty of one Allen to make good any deficiency in the mortgaged property to pay the mortgage debt. This bond had been given to one Murray, a prior holder of the mortgage, who had assigned to the complainant. The court say, in the opinion, (p. 436:)

'In the case under consideration, Murray had assigned the     bond and mortgage given to him, and had guarantied the      payment thereof to the assignee. He, therefore, stood in the     situation of a surety for the mortgagor, when the latter      procured the bond of Allen as a collateral security, or as a      guaranty of the payment of his original bond and mortgage. The present holders are, therefore, in equity entitled to the     benefit of this collateral bond, in the same manner and to      the same extent as if it had been given to Murray before he      assigned his bond and mortgage, and had been expressly      assigned by him to Beers, and by Beers to the complainants.' It thus distinctly appears that the bond of Allen, which was the collateral security in controversy, was procured by and derived from the original mortgagor, the principal debtor. We have been referred to no case which forms an exception to the rule as we have stated it.

But the claim of the complainants fails for another reason. The right of subrogation, on which they rest it, is merely a right to be substituted in place of each of the co-sureties in respect to the other, in order to enforce the mortgages given by them respectively according to their terms. But the conditions of those mortgages have not been broken, and the very fact which is supposed to confer the right upon the creditor to interpose-the insolvency of the sureties-has rendered it impossible for either to fasten upon the other a breach of the condition of his mortgage. As neither can pay his own proportion of the liability they agreed to divide, neither can claim indemnity against the other for an overpayment. It is entirely clear, therefore, that neither of the sureties could be, under the circumstances as they appear, entitled, as mortgagee, to foreclose the mortgage against the other. The condition of each mortgage was that the mortgagor would perform his part of the agreement and indemnify the mortgagee against the consequences of a failure to do so. Unless one of them had been compelled to pay, and had in fact paid, an excess beyond his agreed share of the debt, there could have been no breach of the conditions of the mortgage, and consequently no right to a foreclosure and sale of the mortgaged premises. And the amount which the mortgagor could be required to pay, as a condition of redeeming the mortgaged premises, in case of foreclosure, would be, not the amount which the mortgagee, as between himself and the common creditor, was bound to pay on account of the debt, but the amount which, as between himself and his co-surety, the mortgagor, he had paid beyond the proportion which, by the terms of the agreement between them, was the limit of his liability. The mortgages were not created for the security of the principal debt, but as security for a debt possibly to arise from one surety to the other. As to which of them has there been as yet any default? Plainly none as to either. And yet the complainants assert the right to foreclose them both; a claim that is self-contradictory, for, by the very nature of the arrangement, it is impossible that there should be a default as to both. The fact that one mortgagor had failed to perform his part of the agreement could only be on the supposition that the other had not only fully performed it on his part, but had paid that excess against which his co-surety had agreed to indemnify him. There is, therefore, no right to the subrogation insisted on, because there is nothing to which it can apply.

It results, therefore, that the complainants were not entitled toparticipate in the benefit of the mortgages in question, nor to share in the proceeds of the sale of the mortgaged premises; but that the same should have been applied to the payment of the other judgment and mortgage liens upon the premises, in the order of their priority.

The decree of May 29, 1879, therefore, being the one from which the appeal was taken, is reversed, and the cause remanded with directions to take such further proceedings therein, not inconsistent with this opinion, as justice and equity require.

title: Hampton v. Phipps/Opinion of the Court


text: Talk:Hampton v. Phipps/Opinion of the Court


text:
Basket v. Hassell (108 U.S. 267)

See S.C.. ante, 415.

[268] P. Phillips and W. Hallett Phillips, for petitioner.

[Argument of Counsel from pages 268-269 intentionally omitted]

[269]

djQ MATTHEWS, J.

title: Basket v. Hassell (108 U.S. 267)


text: Talk:Basket v. Hassell (108 U.S. 267)

title: Talk:Basket v. Hassell (108 U.S. 267)


text:
Basket v. Hassell (108 U.S. 267)/Opinion of the Court

It is now urged that the indorsement and delivery of the c

nevertheless good as a will of personalty under the laws of

Tennessee, and, passing the title as such, entitled the appellant

to a decree for the payment of the money. But the conclusion is

not justified by the assumption, for a will of personalty in

Tennessee does not take effect until probate, (St. Tenn. 1871, §

appointed previously, as in case of intestacy, to whom the decree

in this case awarded it. The petition is, therefore, denied.


text: Talk:Basket v. Hassell (108 U.S. 267)/Opinion of the Court


text:
Rountree v. Smith

[Syllabus from pages 269-270 intentionally omitted]

[Statement of Case from page 270-274 intentionally omitted]

W. E. Carter, for plaintiff in error

C. B. Lawrence and Francis H. Kales, for defendants in error.

MILLER, J.

title: Rountree v. Smith


text: Talk:Rountree v. Smith

title: Talk:Rountree v. Smith


text:
Rountree v. Smith/Opinion of the Court

Smith and Lightner, plaintiffs in the circuit court, recovered against Rountree, plaintiff in error, a judgment for $5,614.46 for services rendered and money advanced by them, as brokers and members of the board of trade of Chicago, for Rountree at his request. The case was tried before a jury, the parties being the principal, if not the only, witnesses, and their testimony, with some correspondence by letters and telegrams, was all the evidence. The record presents but two questions necessary to be decided.

It was alleged by the defendant that on the eleventh of March, 1879, he had notified the plaintiffs in writing that thereafter he would advance them no more margins, and would not be responsible for any losses on contracts made by them in his name. To which their answer was a denial of such instruction, and an allegation that, if it had been given, it was subsequently withdrawn and waived by other instructions and actions of defendant. Specific questions on this subject were submitted by the court to the jury, under the practice allowed by the Wisconsin statute. Some objection is made to the form of some of these questions, which we do not think necessary to consider here, for the fourth question and the answer of the jury to it render the other questions and answers immaterial. That question and answer is as follows:

'Fourth. If you find there was such a contract or     understanding between the parties as is mentioned in the last      question, did the defendant, by his subsequent acts,      declarations, directions, or conduct, waive the same and      become liable for further losses incurred over and above the      money so placed in plaintiff's hands? Answer. Yes.'

It was undoubtedly competent for defendant to withdraw, waive, or countermand his former order on this subject, and this could be done verbally or by actions and need not be in writing, and the fact found by the jury that he did so renders his former notice wholly immaterial to the issue. The counsel for defendant resisted recovery against him, on the ground that the sales and purchases made for him by plaintiffs were gambling contracts on the prices of the various articles of produce to which they related, never designed to be actually performed by delivery, but the damages were to be adjusted, and payments made and accepted, according to the difference between the contract price and market price at the date fixed for delivery. And on this subject he asked certain instructions of the court which were refused. The court also charged the jury that there was no evidence on this subject which they could consider. An exception was taken to this ruling, and a bill of exception purports to embody all the testimony. The evidence of the defendant on this point was that he gave the instructions to buy. He says: 'I could not say that I had any understanding on the subject of the nature and character of the board-of-trade deals,-whether the property was to be actually delivered or whether it was to be settled for.' It is obvious, therefore, that so far as plaintiff, one of the parties to all these contracts, which he now impeaches, is concerned, they were not gambling contracts, and that he had no understanding or agreement, express or implied, that they were bets upon the future price of the article.

The other party to these contracts, or rather parties, (for the contracts were numerous,) are not produced, nor their testimony given, and there is no direct evidence that any of them either bought or sold with any other purpose than to perform the agreement as its terms bound them. The plaintiffs, in answer to questions on this subject, say that in no instance had they any agreement with the parties to the contracts made by them for Mr. Rountree; that performance was not expected or intended, but a mere adjustment of differences; and they say that actual delivery of the article was made in some of them. So that as to these contracts, in regard to which the services were rendered and money advanced by plaintiff for defendant, there is no evidence whatever that they were not bona fide contracts enforceable between the parties, and made to be performed.

Evidence was given that a very large proportion of all the contracts made for the sale of produce at the board of trade of Chicago were settled by payment of differences, and that nothing else was expected by the parties to them, and the number of these in proportion to the number of bona fide contracts, in which delivery was expected and desired, is said to be so large as to justify the inference that it was so in these cases. But since the plaintiff testifies that he had no such understanding, since nothing is proved of the intention of the other parties, and since the contracts were always in writing, we do not think the evidence of what other prople intended by other contracts of a similar character, however numerous, is sufficient of itself to prove that the parties to these contracts intended to violate the law, or to justify a jury in making such a presumption. It is also to be observed that the plaintiffs in this case are not suing on these contracts, but for services performed and money advanced for defendant at his request, and though it is possible they might, under some circumstances, be so connected with the immorality of the contract as to be affected by it if proved, they are certainly not in the same position as a party sued for the enforcement of the original agreement.

Without pursuing the subject further, we are of opinion that there was no evidence on this subject which ought to have been submitted to the jury, and the court was right in withdrawing it from their consideration. We see no error in the record, and the judgment of the circuit court is affirmed.

title: Rountree v. Smith/Opinion of the Court


text: Talk:Rountree v. Smith/Opinion of the Court


text:
Little Miami Company v. United States

''Wm. M. Ramsey'', for plaintiff in error.

''Sol. Gen. Phillips'', for defendant in error.

WAITH, C. J.

title: Little Miami Company v. United States


text: Talk:Little Miami Company v. United States


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

This was a suit begun by the United States on the twenty-ninth of March, 1875, to recover of the Little Miami & Columbus & Xenia Railroad Company a tax of 5 per centum on alleged profits of the company 'carried to the account of any fund or used in construction,' provided for by the act of June 30, 1864, c. 173, § 122, (13 St. 284,) amended by the act of July 13, 1866, c. 184, (14 St. 139.) A jury was waived and the trial had by the court. The case comes here on a finding of facts. From this finding it appears 'that during the period covered by the petition, viz., from the first day of July, 1864, to the thirtieth day of November, 1869, inclusive, the defendant, in good faith, regularly made returns of earnings, profits, income, and gains, and of profits carried to the account of any fund, or used for construction, arising or accruing to it during said period, intended and believed by it to embrace all such profits, incomes, and gains, and all such profits carried to the account of any fund, or used for construction, which by law it was bound to return; which returns were received and accepted, and for the amount of which assessments from time to time were made of the taxes payable thereon, which taxes were regularly paid by it to the officer lawfully authorized by law to collect the same.' In addition to this it also appears 'that over and above the amount so returned, on which taxes were paid as aforesaid, the defendant did in fact make additional earnings, which by it were carried to the account of some fund, or used for constructon during said period, amounting in all to the sum of $168,707.22, on which no tax has been paid.' The finding also shows that during the year 1869 the defendant carried to the debit of profit and loss on its books various items, amounting in all to $184,395.06. In this way the books show no profits between July 1, 1864, and November 30, 1869, beyond the amount on which taxes were paid in the regular course of business. Of the sum so charged up, one item of $51,155.44 was for loss and depreciation on book-accounts and other choses in action, acquired by the company prior to July 1, 1864, and which had been standing on the books until 1869 at their par value; another item of $22,000 was for the depreciation in the value of bonds purchased after July 1, 1864; another item of $106,014.62 was for the depreciaton in value of what was known as the 'street-connection track;' and another item of $5,225 was for losses on a purchase in 1867 of shares of capital stock in a cotton-press company. Upon these facts, so found, the company claimed that, in ascertaining the amount of profits liable to taxation, there should be deducted from the earnings, during the period for which the tax was claimed, these several items of loss and depreciation; but the court ruled, as a matter of law, 'that for the purpose of taxation the defendant is not entitled by law to make the deduction as claimed,' and gave judgment for 5 per cent. on the whole sum of $168,707.22.

In our opinion there was error in this ruling. The tax in question is not upon earnings 'carried to the account of any fund or used for construction,' but upon profits. Earnings used to pay interest or dividends are taxable, whether actual profits or not; but earnings used for construction, or carried to the account of a fund, are not to be taxed, unless they represent profits of the company in its business as a whole; that is to say, the excess of the aggregate of gains from all sources over the aggregate of losses. The law evidently contemplated an annual statement of accounts, and in this way an annual striking of balances between gains and losses. When, in such statements, it appeared that a part of the excess of gains over losses had been used for construction or added to some fund, then a tax was to be paid on what had been so used or appropriated. This was part of the system adopted for the taxation of the 'profits, income, or gains' of railroad corporations, which, as was said in Railroad Co. v. Collector, 100 U.S. 598, it was the object of this statute to provide. A tax was put on dividends, interest paid in the ordinary way, and profits used for construction or carried to some fund. This was a classification of the income of the corporation for the purposes of taxation.

In the present case there has been no assessment of a tax, but the United States have sued to recover such sum as, upon an investigation of the accounts of the company, it shall appear ought to have been paid. The burden of proof is upon the government. No more can be recovered than is shown to be due. In presenting the evidence no attempt seems to have been made by the United States to state annual accounts and ascertain the amount to be paid on that basis. The court has found that between July 1, 1864, and November 30, 1869, earnings to the amount of $168,707.22 had been used for conconstruction or carried to the account of some fund; but it has also found that between the same dates the company lost $22,000 by depreciation in its investments in bonds, and $5,225 by depreciation in the stock of a cotton-press company. In the view we take of the law, these sums should have been deducted from the earnings as ascertained before fixing the amount of profits on which the tax was to be paid. It is not stated with certainty in the finding at what dates the losses actually occurred which are represented by the items of $51,155.44, depreciation in the value of book-accounts and choses in action, and $106,014.62, depreciation in the value of the street-connection track. For this reason we are unable to decide whether these losses, or any part of them, should be deducted. As the omission to make the finding sufficiently specific in this particular undoubtedly arose from the fact that the court ruled as a matter of law that no deductions could be made on account of losses of this character, we will remand the cause, so that further inquiry may be had on that point. This we have authority to do under section 701 of the Revised Statutes, which allows a cause to be remanded for 'such further proceedings to be had in the inferior court as the justice of the case may require.'

The judgment of the circuit court is reversed and the cause remanded, with instructions to deduct from the amount of earnings, as ascertained upon the former trial, the items of $22,000, depreciation in the value of bonds, and $5,225, depreciation in the value of cottonpress stock, together with such other sums included in the items of $51,155.44, depreciation in book-accounts and choses in action, and $106,014.62, depreciation in value of the street-connection track, as, upon further hearing, shall be found to represent losses accruing to the company between July 1, 1864, and November 30, 1869, and to render judgment only for such an amount of tax as shall appear to be due upon that basis.


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


text:
Wright v. United States (108 U.S. 281)

''R. McP. Smith'', for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

WAITE, C. J.

title: Wright v. United States (108 U.S. 281)


text: Talk:Wright v. United States (108 U.S. 281)


text:
Wright v. United States (108 U.S. 281)/Opinion of the Court

This was an action on a distiller's bond, to recover the difference between tax assessed according to the producing capacity of the distillery and those calculated on the reports of production. The defense was that a copy of the official survey had not been served on the distillers. Section 3264 of the Revised Statutes provides for a survey of the distillery by the collector and a written report thereof in triplicate, 'of which one copy shall be delivered to the distiller, one copy shall be retained by the collector, and one copy shall be transmitted to the commissioner of internal revenue, and the survey shall take effect upon the delivery of such copy to the distiller.' In Peabody v. Stark, 16 Wall. 240, it was held, following the rulings of the commissioner of internal revenue, that the distiller was not liable for the capacity tax until a copy of the survey had been delivered to him.

In the present case it appeared that no copy of the survey had ever been delivered to the distillers, but when the bond sued on was executed the distillers signed the following indorsement, written on the report of the survey which had been made: 'We hereby accept the within survey, and consider the same as binding upon us on and after this date, September 12, 1873. JOHN B. WRIGHT. THOMAS TUCKER.' The court below decided that this indorsement was in law a waiver of a delivery of a copy of the report to the distillers, and that the tax was consequently collectible. To this we agree. The language of the act is that 'the survey shall take effect upon the delivery of such copy to the distiller.' This is equivalent to saying that the survey shall be binding on the distiller when the copy is delivered to him. When, therefore, the distiller in this case accepted the survey and stipulated that it was binding on him, he in effect said that he would consider the survey as having effect without the formal delivery of a copy. This he might do. The judgment is affirmed.


text: Talk:Wright v. United States (108 U.S. 281)/Opinion of the Court


text:
Lewis v. City of Shreveport

[Syllabus from pages 282-283 intentionally omitted]

[Statement of Case from pages 283-284 intentionally omitted]

James Grant and''Whit. M. Grant'', for plaintiffs in error.

[Argument of Counsel from pages 284-286 intentionally omitted]

B. F. Jonas, for defendant in error.

WAITE, C. J.

title: Lewis v. City of Shreveport


text: Talk:Lewis v. City of Shreveport

title: Talk:Lewis v. City of Shreveport


text:
Lewis v. City of Shreveport/Opinion of the Court

This was a suit brought to recover the amount of certain coupons cut from bonds issued by the city of Shreveport, Louisiana, which appear on their face to have been issued 'in aid of the Texas and Pacific Railroad Company.' In point of fact, the bonds were used to buy lands to be donated to the railroad company as a site for depots and machine-shops.

We have had occasion at this term, in the case of City of Ottawa v. Carey, ante, 361, to repeat and apply a rule which has always been recognized and adhered to in this court, to the effect that, unless power has been given by the legislature to a municipal corporation to grant pecuniary aid to railroad corporations, all bonds of the municipality, issued for such a purpose, and bearing evidence of that fact on their face, are void even in the hands of bona fide holders, and this whether the people voted the aid or not. Every purchaser of such a bond is chargeable in law with notice of the want of power in the municipal authorities to bind the body politic in that way. This principle is elementary.

In the present case it is not pretended that any such power was expressly granted to the city of Shreveport, and we find no provision of the charter from which anything of the kind can be implied. The authority to purchase and hold property of all kinds relates only to such property as is needed for municipal purposes. It is a matter of no importance that the city employed agents to sell the bonds, or that its law officer gave an opinion in favor of their validity, or that they have been recognized in official statements as binding obligations, or that taxes have been levied to pay either principal or interest. Corporate ratification, without authority from the legislature, cannot make a municipal bond valid which was void when issued for want of legislative power to make it. These bonds carried on their face full notice to every purchaser that they were issued for a purpose not authorized by law; that is to say, to aid a railroad corporation. This whole subject was so fully considered in City of Ottawa v. Carey, supra, that we deem it unnecessary to discuss the subject further now.

In Edey v. Shreveport, 26 La. Ann. 636, which is relied upon as establishing the power of the city to issue the bonds, the question was whether the vendor of the land, which had been only partly paid for out of the proceeds of the bonds, could enforce his mortgage and vendor's privilege on the land to recover the balance of purchase money due him, and it was decided that he could. This is no more than was in effect held by this court at the present term in City of Parkersburg v. Brown, 1 SUP. CT. REP. 442. All that was said by the supreme court of Louisiana must be construed in connection with the question then up for decision. There is not a word about the validity of the outstanding bonds, nor of the right of the holders to recover upon them in a suit against the city. The whole effect of the decision is that the city could not keep the land as against the vendor without paying for it. That the court would have held the bonds void, if it had been called on to decide that question, is shown beyond all doubt in the case of Wilson v. Shreveport, 29 La. Ann. 673, where the power to issue bonds, apparently of a much less objectionable character, was expressly denied.

The judgment is affirmed.


text: Talk:Lewis v. City of Shreveport/Opinion of the Court


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Farlow v. Kelly

While the Cincinnati, Sandusky & Cleveland Railroad was being operated by John S. Farlow, a receiver appointed by the circuit court of the United States for the northern district of Ohio, in a suit for the foreclosure of a mortgage on the road, Sylvanus Kelly, a passenger on the of the trains, was injured by the collision of a car in which he was riding with a freight car standing on a side track. Kelly thereupon petitioned the circuit court for leave to sue the receiver in the court of common pleas of Sandusky county, Ohio, to recover for the injuries he had sustained. This was denied. He then asked leave to file his complaint against the receiver in the suit for foreclosure. This was granted, and the receiver ordered to make his defense. Kelly thereupon filed in the circuit court his complaint, in which he set forth his claim growing out of the alleged carelessness and neglect of the receiver and his agents, and prayed that an inquiry might be had as to the amount of his damages and the receiver ordered to pay the same. The receiver answered, denying that the injury* complained of was occasioned by his negligence, or that of his servants or agents, and averring that it was 'caused by the negligence and want of care by the said Sylvanus Kelly in improperly exposing himself to injury while riding on said car, by so placing his arm in an open window of said car that it projected outside thereof, and thereby came in contact with said standing car.' After the issue was thus made up, the matter was referred to a special master, on the application of Kelly, 'to hear the matters set forth in said complaint, answer, and replication, and such evidence as the parties may offer relevant and pertinent to the issues therein made, and determine and report whether, under the law, the said receiver is liable for the injuries complained of by the said Sylvanus Kelly; and, if so, the amount of compensation which said Sylvanus Kelly shall be entitled to receive for the same; * * * and that he report his findings, together with the evidence and costs of his proceedings, to this court as soon as possible, at the January term thereof.' Under this order the master heard the case and reported in substance the following facts:

Bellefontaine is a station on the line of the road at which     passenger trains stop and pass each other. Immediately south     of the town is a side track of about 1,000 feet in length,      with a switch at each end, uniting it with the main track. This side track has a descending grade from north to south of     about four feet in the whole distance of one thousand. On the     morning of the twenty-third of August, 1877, three freight      cars were standing on the side track, two of them near the      north switch, and one about 135 feet from the south switch. Kelly was a passenger on a passenger train going north on the     road that day, and had a seat about midway of the car near an      open window. Having a severe headache, shortly before the     train reached the south end of the side track he placed his      right elbow on the sill or base of the open window and rested      his head on his right hand. The train on which he rode was to     pass another going south at Bellefontaine about noon of the      day. The train going south arrived at the north end of the     side track about 20 minutes before that on which Kelly was      riding reached the south end.

The train from the north was switched from the main track     onto the side track at the north end, and to make room for      itself pushed the two freight cars southward, putting them in      motion toward the south end of the side track on the down      grade. The brakes on the freight cars were not attended to,     and the impulse given them by the incoming train caused them      to move the single car standing near the south end of the      side track to a point so near the main track that the train      from the south could not pass without contact. This freight     car remained in that position from five to ten minutes before      the train from the south arrived. While the freight car stood     in this dangerous proximity to the main track, the train from      the south came up at more than ordinary speed, and the      forward right-hand corner of the coach in which Kelly was      riding struck the freight car and jarred his elbow from the      window sill, outward over the window sill and outside of the      car, bringing his forearm in contact with the freight car,      while his arm above the elbow was pressed against the side of      the window. The train in which Kelly was riding being in     motion, his arm was crushed and broken below and above the      elbow in such a manner as to require amputation near the      shoulder.

As conclusions of law from these facts, the master found that there was negligence in the management of the railroad in allowing the freight car to stand so near the main track when the train from the south came up, and in not keeping the train from the south under control as it approached the station. He also found that Kelly was not in fault under the circumstances for resting his elbow on the sill of the open window. To this report exceptions were filed by the receiver, (1) because the master found as a fact that the elbow of Kelly rested on the sill or base of the window until it was thrown outside by the force of the collision; and (2) because he found as a conclusion of law that it was not an act of negligence for Kelly to ride with his elbow on the sill of the open window. The court overruled the exceptions and ordered the receiver to pay Kelly for his damages the sum of $5,000. From this order an appeal was allowed by Mr. Justice SWAYNE, at that time a justice of this court and assigned to the sixth circuit, which includes the northern district of Ohio.

S. A. Bowman, for appellant.

R. P. Buckland, for appellee.

WAITE, C. J.

title: Farlow v. Kelly


text: Talk:Farlow v. Kelly

title: Talk:Farlow v. Kelly


text:
Farlow v. Kelly/Opinion of the Court

The questions argued here are those presented by the exceptions below. After examining the testimony reported by the master, we are entirely satisfied with his findings of fact. There can be no doubt whatever of the culpable neglect of the managers of the road in leaving the freight car to stand on the side track so near the main track as to make a collision with the approaching train from the south inevitable, and in our opinion it was not contributory negligence for Kelly, under the circumstances, to ride with his elbow on the sill of the open window.

The judgment is affirmed.

title: Farlow v. Kelly/Opinion of the Court


text: Talk:Farlow v. Kelly/Opinion of the Court


text:
Ensminger v. Powers

''Wm. B. Gilbert and Nathl. Wilson'', for appellant.

''Wm. M. Randolph'', for appellee.

BLATCHFORD, J.

title: Ensminger v. Powers


text: Talk:Ensminger v. Powers

title: Talk:Ensminger v. Powers


text:
Ensminger v. Powers/Opinion of the Court

In May, 1867, a bill in equity was filed by the board of mayor and aldermen of the city of Memphis and Bridget Powers against Marmaduke L. Ensminger and J. J. Sears, in the circuit court of the United States for the western district of Tennessee. The bill was sworn to by John C. Powers as agent for Bridget Powers. The substantial allegations of the bill were that the city then owned in fee 75 acres of land in Memphis, known as the navy-yard, which land, after having been dedicated by its owners, in 1844, to the government of the United States, in fee, for naval purposes, was ceded to said city by the government, in fee; that the city, in February, 1866, leased lot 10, part of said land, to said Bridget Powers, for 20 years, and she took possession of it; that Ensminger, and Sears as his agent, were setting up a claim to said lot, as having been purchased by Ensminger at a sale of it by the United States direct-tax commissioners in June, 1864, and had procured said commissioners to issue a writ of possession on April 30, 1867, to put Ensminger in possession of said lot; that the tax sale was void because (1) the act of congress under which the sale was made was unconstitutional; (2) the assessment was excessive and unauthorized; (3) the enforcement of the act was premature in time; (4) the act was not followed as to advertising the sale in a newspaper, or as to the length of time of the advertisment; (5) the sale was made on a day subsequent to that for which it was advertised. The bill prayed for a decree declaring the sale void, and for an injunction restraining the issuing or execution of any writ dispossessing the plaintiffs. A temporary injunction was issued.

Ensminger answered, setting up his tax title, as evidenced by a certificate of sale, alleging the validity of the sale and denying the allegations of the bill. The cause was heard on pleadings and proofs, and on the twenty-seventh of December, 1873, the court entered a decree that the injunction be dissolved; that lot 10 was duly sold to Ensminger, and the acquired thereby a title to it in fee-simple; that he should have a writ to the marshal to put him in possession; that there be a reference to a master to take an account of the damages to Ensminger from the injunction, for which purpose only the bill should be retained; and that the plaintiffs pay the costs of the suit. The city and Bridget Powers appealed to this court. John C. Powers signed the appeal bond for costs as surety. There was no supersedeas bond. On the thirteenth of December, 1875, the cause came on for hearing in this court, and, it appearing that the appellants had failed to file and docket the cause in this court in conformity with its rules, the appeal was docketed and dismissed by this court with costs, execution was awarded against the plaintiffs for the costs of the defendants in this court, and the cause was remanded to the circuit court for execution and further proceedings. The mandate of this court was filed in the circuit court, and on the nineteenth of June, 1876, that court made a decree that the reference as to the damages from the injunction proceed, and that the referee also report the damages to Ensminger from the loss of rents and profits of the land; and under its order an alias writ of possession was issued by it, on July 8, 1876, to the marshal to put Ensminger in possession of lot 10.

On the ninth of September, 1876, the said John C. Powers, describing himself as the husband of the said Bridget Powers, and the said Bridget Powers filed a bill in equity against the said Ensminger and the said Sears and the said city in the said circuit court. The bill prays for a decree that the plaintiffs, or the plaintiff Bridget, have a right to the leased premises for the term of the lease; that the sale to Ensminger be declared void; that the said decrees of December, 1873, and June, 1876, be reviewed and set aside; and that Ensminger and Sears be enjoined from collecting rent from the plaintiffs, or either of them, for said lot, and from interfering with their possession of it. Ensminger and Sears having demurred to the bill, the court gave leave to the plaintiffs to file said bill as a bill of review, and then the demurrer was heard and overruled, with leave to the defendants to embody in their answer the matters of the demurrer, and a temporary injunction was granted according to the prayer of the bill, and the bill was dismissed as to the city, and the other defendants were allowed to answer the bill. They answered, there was a replication, the case was heard on pleadings and proofs, and in December, 1878, the court rendered a decree adjudging that the said decrees of December, 1873, and June, 1876, in the first suit be reversed, vacated, set aside, and canceled, and the plaintiffs, as against the defendants, be restored to all they had lost under and by virtue of said decrees and the process which had been issued thereunder; that the plaintiff Bridget has a good title as against the defendants for the term of her lease from the city to said lot 10, subject only to said lease; that Ensminger be perpetually enjoined from setting up any title to said lot under said tax-sale certificate; that the said temporary injunction be made perpetual; that a writ issue to put the plaintiffs in possession of said lot; and that the plaintiffs recover from the defendants the costs of both of the suits, and have execution therefor. Sears having died after the cause was submitted, the suit was ordered to be abated as to him, and Ensminger took an appeal to this court from said decree.

The bill in this suit sets forth that the land for the navy-yard, after having been dedicated by its original proprietors, in 1828, for a landing for public purposes of navigation or trade forever, was conveyed to the government by the city of Memphis, in 1844, for a navy-yard, without lawful authority, because it had been dedicated to public purposes by the original proprietors, and the city had accepted the dedication; that in 1854, by an act of congress, the government ceded the land to the city, for the use and benefit of the city, and after that the rights of the public remained the same as before the conveyance to the government; that the city leased lot 10 to the plaintiff Bridget for the term from February 28, 1866, to December 31, 1886, for a yearly rent of $127.19, payable half-yearly; that the lot was vacant and she agreed with the city to put buildings on it, with the right to her to remove them as her own property at the end of the lease; that Ensminger and Sears had compelled John C. Powers to take a lease of the lot from Ensminger in order to enable the plaintiffs to avoid being turned out of possession, and also, as a condition of remaining, to give his five notes for $25 each as rent for five months from July 19, 1876, one of which notes he had paid; that the plaintiff Bridget had put buildings on the lot, which were now on it, at a cost to her of $9,000 or $10,000; that after the plaintiffs had constructed much the larger part of the buildings they learned of the claim of Ensminger, and the plaintiff John C. applied to the city attorney to protect the plaintiffs, and he filed the bill in the first suit, not making John C. a party; that Ensminger answered, setting up his tax title; that no cross-bill was filed, nor was the answer made a cross-bill, nor was any affirmative relief prayed in the answer; that some proof was taken and the cause was treated as at issue, though no replication was filed; that the decree entered was not entered on a hearing of the case by the judge who held the court, although the plaintiffs in the suit asked for a hearing, but the judge allowed the counsel for the defendants to enter the decree at his peril, subject to the right of the plaintiffs to bring a bill of review; that the plaintiffs excepted to such ruling and the judge signed a bill of exceptions; that the appeal to this court was dismissed because the city refused to pay the necessary money for filing the transcript of the record which had been made, and docketing the appeal; that the marshal was proceeding to execute the alias writ of possession when the plaintiff John C. accepted said lease and gave said notes, and the plaintiffs remain in possession; and that the said decree and proceedings did not bind either of the plaintiffs, because Bridget was a married woman and her husband was not a party. The bill alleges that the former decrees, so far as they undertook to decree the validity of the title of Ensminger to the premises, or to award a writ of possession to him, or to do anything more than dismiss the bill of the plaintiffs, departed from the established practice of the court, and were void or erroneous; and that the decree was erroneous, if not void, because it was not the deliberate judgment of the court upon the facts in the record, and because the cause was not at issue or ready for hearing. The bill then sets forth various reasons why the purchase and title of Ensminger were invalid. Among other things the bill says:

'These plaintiffs further state and show that in the year     1861, and from thence up to the date of the lease aforesaid,      the said premises were not and had not been leased by the      city of Memphis to any one, or, if any such lease had been      made, the same had been abandoned and forfeited, and was not      for any part or period of the same time in force or      subsisting as a valid and effectual contract. The plaintiffs     further state and show that, by a special act of the general assembly of the state of      Tennessee, in force in the year 1861, the said premises were      not taxable by the state of Tennessee, or the United States      of America, the same not being under a lease from the city,      and, for that reason, that the said sale was void. And the     plaintiffs further state and show that the title to the said      premises in 1861, and before and since that time, was in the      city of Memphis, which held the same as public property, for      municipal or public purposes, as provided by law, and,      therefore, by the law of the state of Tennessee, the said      premises were not, in the year 1861, or before or since,      liable to a direct tax by the government of the United      States, and for that reason the said sale was void.'

The bill also prays that the lease taken and the notes given by John C. be canceled. The decree granted this relief also.

The answer of Ensminger and Sears asserts the validity of the title of Ensminger under the tax sale; that the decree in the first suit was an adjudication in his favor as to all the allegations in this bill; that none of the alleged objections to the tax sale proceedings are tenable; that, although the lease to Bridget was not made until 1866, the property had been divided into lots and offered for lease by the city before the assessment of said tax in 1864, and at one time before that date a lease of lot 10 had been made by the city, which was not carried into operation because of the failure of the lessee to comply with it; that the property was not exempt from taxation under any act of the legislature of Tennessee, and was not in 1861, or before or since, held for municipal purposes; that the said Bridget has no right to the improvements she put on the land; that the former suit was commenced at the instance and request of John C., and he swore to the bill and prosecuted it in conjunction with Bridget; that said suit, under which all of the plaintiffs' rights were fully considered and passed upon by the court, was a final adjudication of all of the questions and rights therein set up, and the decision, being upon the same facts and rights as are claimed by the plaintiffs in this suit, and between the same parties, is res adjudicata as to this suit; and that the defendants plead the same as a complete bar to this suit. The answer then sets up as a defense most of the matters which had been so set up in the demurrer.

After the decree of June, 1876, in the former suit, the reference as to the damages from the injunction in that suit proceeded, and in November, 1876, a report was made awarding to Ensminger, as damages, $12,962.10. The city of Memphis excepted to the report, and on the eleventh of January, 1878, the court made a decree that it had no jurisdiction to assess the damages from the injunction, and that the bill be dismissed without prejudice to a suit at law on the injunction bond.

The first question to be considered is as to whether the decree of December, 1873, can be considered as a decree of the court for any purpose. The bill in the present suit sets forth certain facts as having occurred in court when the case came up for hearing, and refers to a bill of exceptions embodying such matters as having been signed by the judge who was holding the court, and ordered to be filed and to form a part of the record of the cause, and alleges that the decree was erroneous because it was not the deliberate judgment of the court upon the facts in the record. The decree states that the case was heard on the bill, answer, exhibits, agreement of counsel, and proof, and had been fully argued, and the court had duly deliberated thereon, but it also says: 'It is further ordered that the bill of exceptions tendered and signed by the court be filed as part of the record, which is done accordingly.' There is in the record a bill of exceptions filed the same day the decree was made. This bill of exceptions states that the cause came on to be heard before the judge holding the court—

'Under the following circumstances, to which counsel for the     city of Memphis excepted, and prayed a bill of exceptions to,      upon the record of the facts below, stated as they occurred:      First. Duncan K. McRae, Esq., of counsel for the claimants     of the tax titles, stated that he had been instructed by his      honor H. H. EMMONS, lately presiding at this term of said      court, but who had then left the city of Memphis, where said court      is held, to enter decrees in the series of causes in said      court known as the United States Tax-title Cases, in all such      of these cases as fell within the purview of the decision of      his honor, rendered in certain of those cases tried before      the said Judge EMMONS before that time, and that said decrees      were to be entered in those cases which the said counsel      thought came within his decision aforesaid, but to be so      entered at the peril of said parties, because said judge      would, upon a bill of review, set aside said decrees if it      appeared to him by such bill of review that the case did not      properly fall within his said decision; that he had, at the      further suggestion of said judge, published a notice in the      city papers that on Saturday, the twentieth of December      aforesaid, he would proceed to take such decrees, when the      counsel interested in the several cases could appear; which      said newspaper notice is hereto attached. Secondly. The said     counsel then proceeded to read from a list the cases, and to      designate such as he desired to enter decrees in and such as      he would pass or continue. When the above-entitled cause was     called, the counsel for the city objected, and stated that      the city attorney would insist that this cause did not come      within the class of causes to which Judge EMMONS referred,      and stated that the city would contend that the property of      its municipality was not liable to taxation; that it was      exempt under an act of the legislature; that the proof showed      the city was entitled to a decree. The counsel for the     claimants of the tax titles, the said McRae, insisted that he      was to be the judge of the cases in which he was entitled to      take decrees, and was to take them at his peril, subject to a      bill of review, and that if the city attorney would convince      him, before the decree was entered, that the case was not one      proper for a decree, he would not enter it. The counsel for     the city insisted that the presiding judge here present was      to determine that question. Wherepon the presiding judge     remarked 'that he did not know what Judge EMMONS decision      was, nor the scope of it; that he had promised said justice      to have entered decrees in such cases as fell within the      decision, and that he understood that it was left to counsel      for the claimants of the tax titles to determine which were such cases; and that he would enter decrees in such      cases as the said counsel should designate, with the      understanding that such proceedings were at his peril.'      Thereupon counsel for the city inquired if Judge EMMONS'      decree or decision, or the order under which these      proceedings were had, were of record, and the counsel for the      tax-title claimants informed the court that such order was      not of record, but that it would be entered of record before      the decrees were entered.

'And thereupon B. M. Estes, Esq., who was of counsel and     argued the cases in opposition to the tax titles, stated to      the court that Judge EMMONS' written opinion had been lost or      mislaid, having been rendered some time ago and then      withdrawn for revision, since which time it could not be      found; that in it he had only decided that the acts of      congress under which the sales were made were constitutional,      and the proceedings of the commissioners thereupon regular;      that prior to the final determination of the case by the      judge, and while he had it under advisement, the case had      been compromised, and hence no decree had ever been entered. Counsel for the city then objected to a decree in this case,     because it involved other questions than the      constitutionality of the acts of congress and the regularity      of the proceedings of the commissioners appointed under them,      and asked to have those other questions argued. Whereupon     counsel for the tax-title claimants insisted that if the case      contained other questions the city could show it on bill of      review and the decree would be set aside under Judge EMMONS'      order; to which counsel for the city objected that a bill of      review would not lie, and insisted on a determination of the      question by the court, whether this case came within Judge      EMMONS's order for the entry of decrees. And thereupon the     court decided that the counsel for the claimants should enter      decrees in such cases, as he designated, as, under the      undertaking with his brother EMMONS, he had only to direct      such decrees to be entered as the counsel should determine. To all of which counsel for the city excepted, and prayed     that by bill of exceptions the city should be allowed to show      the proceedings in court as they occurred and its exceptions      thereto. And now, accordingly, the said city here tenders     this bill of exceptions, and objects to the said decree and all said      proceedings as heretofore on the hearing they were objected      to, and prays that said bill of exceptions may be signed and      sealed by the judge presiding and made a part of the record,      which is done accordingly.'

Under this state of facts the bill of exceptions must have the same effect as if the narration it contains of what occurred were incorporated in the body of the decree. Thus considered, it appears that, against the objection and exception of the counsel for the city, who represented both of the plaintiffs in the suit, the plaintiffs were denied by the court a hearing of the case on the merits, and the judge holding the court refused to decide whether the case fell within the prior decision or order of Judge EMMONS, and allowed the counsel for the defendant to determine that question. Notwithstanding the statements in the decree that the case was heard on the pleadings and proofs and fully argued, and that the decree was the decree of the court, these statements are contradicted by the bill of exceptions, forming virtually part of the same decree. It is quite apparent that the judge intended that what occurred should be spread before this court on an appeal, so that its effect on the validity of the decree might be considered. There can be no doubt that it could be so considered; and, if on appeal, it must have a like effect on a bill of review, as it is to looked at as forming a part of the decree. What, then, does it show, except that the proper forms of the administration of justice were disregarded, the functions of the judge were abnegated, there was no hearing or decision by the court, and the counsel for the defendant was allowed to prepare and enter such a degree as he chose? Words need not be multiplied to argue that a decree rendered under such circumstances must, on a bill of review, by held for naught and as if it did not exist. Though not the case of actual fraud practiced on the court or on the opposite party, what was done operated as a legal fraud in respect of the rights of such party, through the illegal co-operation of the judge with one of the parties. In McVeigh v. U.S. 11 Wall. 259, an information had been filed by the United States against certain property belonging to McVeigh, to forfeit it. He appeared and put in a claim and answer. The district court struck it out because McVeigh resided within the confederate lines and was a rebel, and condemned the property by default. This court, on a writ of error, reversed the judgment, on the ground that McVeigh was denied a hearing and the first principles of the due administration of justice were violated. Equally in the present case, the plaintiffs in the suit were denied a hearing, and their answer might as well have been stricken out. In addition to this, there was no judicial action by the court, and the defendant was allowed virtually to decide the cause in his own favor.

For these reasons it must be held that the decree in question cannot, in this suit, be regarded as a decree adjudicating any rights between the parties to the former suit, and that it forms no obstacle to the consideration of the issues raised in the present suit, provided the bill was filed in time, as a bill of review. It was not filed within two years after the decree of December, 1873, was rendered. But the plaintiffs in that decree appealed from it to this court, it being a final decree. A bill of review must ordinarily be brought within the time limited by statute for taking an appeal from the decree sought to be reviewed, where, as here, the review sought is not founded on matters discovered since the decree. Thomas v. Harvie's Heirs, 10 Wheat. 146; Whiting v. Bank of U.S. 13 Pet. 15; Kennedy v. Georgia State Bank, 8 How. 609; Clark v. Killian, 103 U.S. 766. But the appeal to this court was perfected by the giving of a bond for costs in January, 1874, and, although this court, in December, 1875, dismissed the appeal for the failure of the appellants to file and docket the cause in this court, yet the cause was out of the court below, and in this court until within two years before the bill in this suit was filed. The pendency of the appeal by Bridget Powers would have been a valid objection to the filing of a bill of review by her for the errors in law now alleged; and, inasmuch as the appeal was not heard here on its merits, but the prosecution of it was abandoned, we are of opinion that the bill of review was filed in time. While the appeal was pending here, although there was no supersedeas, the circuit court had no jurisdiction to vacate the decree, in pursuance of the prayer of a bill of review, because such relief was beyond its control The time during which that control was suspended to await the orderly conduct of business in this court in regard to hearing the appeal, is not to be reckoned against Bridget Powers in this case, although she joined in the appeal. She was exercising a right in doing so; and, as the city of Memphis was the principal plaintiff and appellant, and was endeavoring to protect its title in fee, and thus her right as a lessee, it may very well have been, as is alleged in the bill, that the appeal fell because the city refused to pay the necessary money for filing the transcript of the record. Being thus left to the protection of her own rights, she may well have concluded that a bill of review was preferable to the further prosecution of the appeal, when she had such good cause for that course, as now appears, although the same error might have been corrected if the appeal had been heard on the merits. This bill of review is properly brought, therefore, because of the error on the face of the decree which has been considered, and, the decree being set aside, as it must be we are free to examine the question as to the validity of the tax title set up by Ensminger.

Although the sale of the lot for taxes preceded the lease to Bridget Powers, the sale was invalid as to her if the lot was not subject to be sold for taxes. By section 13 of the act of congress of August 5, 1861, (12 St. at Large, c. 45, p. 297,) providing for a direct tax and for its assessment on land, there was exempted from tax all land permanently or specially exempted from taxation by the laws of the state wherein it was situated, at the time of the passage of that act. The same section provided that, in making such assessment, due regard should be had to the latest valuation under the authority of the state. The exemption of land exempted from taxation by the laws of the state is repeated in section 1 of the act of June 7, 1862, (Id. c. 98, p. 422,) and it is there provided that the direct taxes shall be charged on lands and lots of ground as the same were enumerated and valued under the last assessment and valuation thereof made under the authority of the state before January 1, 1861. Section 7 of that act, which makes the certificate of the sale of the land for the tax prima facie evidence of the regularity and validity of the sale, and of the title of the purchaser, provides that the certificate may be affected, as evidence of the regularity and validity of the sale, by establishing the fact that the property was not subject to taxes. These acts of 1861 and 1862 governed the sale in question. By section 9 of the act of the legislature of Tennessee, which took effect February 20, 1860, (Priv. Acts 1859-60, c. 70, p. 284,) it was enacted 'that all buildings and grounds owned by said city of Memphis and used exclusively for public purposes, such as for fire companies and fire engines, city water-works, markets, and market houses, and their grounds, and such parts of the navy-yard as are not leased to private parties, be and the same are hereby declared free and exempt from all state and county taxes so long as owned by the city, and so used for public purposes.'

The lot in question is shown by the testimony in the present suit to have been part of the navy-yard, and to have been the property of the city of Memphis from before the passage of the act of 1861 until after the sale of it for taxes. It is not shown to have been leased to any private party between those dates. The decree in the first suit and the tax-sale certificate refer to the lot as 'assessed to G. McLean in 1860,' and the evidence shows that it was assessed to G. W. McLean in 1860, 1865, 1866, and 1867. The lease to Bridget Powers provides that she shall save the city harmless from any damages 'to be claimed by the original lessees of said lot.' But there is no legal evidence whatever of any subsisting lease during the period named. The bill alleges that there was none, and the answer substantially admits this averment, by saying that at one time before the assessment of the tax in 1864 a lease of the lot by the city had been made, 'which was not carried into operation by failure of the lessee to comply.' This is equivalent to saying that there was no subsisting lease when the tax was assessed for which the lot was sold. There is the evidence of a witness for the plaintiff familiar with the premises, and residing near them, that he never knew of any assertion of any claim to the lot by any lessee, and the case is one where, on all the facts, and in the absence of affirmative proof by the defendant of the existence of such lease, the evidence that there was none must be held sufficient.

We do not perceive that any of the objections set up by demurrer and repeated in the answer are tenable. The decree of the circuit court is affirmed in all respects, except in so far as it erroneously gives the date of July 19, 1876, to the decree of June 19, 1876, and recites erroneously the contents of said decree; and except in so far as it may be construed as enjoining the defendant Ensminger from setting up any title to said lot 10 as against the city of Memphis, or as quieting or confirming the possession of the plaintiffs as against the city of Memphis under the said lease from said city; and except in so far as it adjudges that the lease made by the defendants to the plaintiff John C. Powers, and the five notes executed by him, be delivered up and canceled. As to this last-named lease, the plaintiff John C. Powers, having voluntarily entered into it, no ground is shown for setting it aside. It was correct to charge Ensminger with the costs of both suits. The decree of this court in the first suit imposed on the plaintiffs herein only the costs of the appeal to this court. The costs of the present appeal must be paid by the appellant.


text: Talk:Ensminger v. Powers/Opinion of the Court


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Starin v. The Jesse Williamson

[Syllabus from pages 305-306 intentionally omitted]

R. D. Benedict, for appellant.

[Argument of Counsel from pages 306-308 intentionally omitted]

H. J. Scudder, for appellee.

BLATCHFORD, J.

title: Starin v. The Jesse Williamson


text: Talk:Starin v. The Jesse Williamson

title: Talk:Starin v. The Jesse Williamson


text:
Starin v. The Jesse Williamson/Opinion of the Court

This is a suit in rem, in admiralty, to recover damages for a collision, brought in the district court, where the libel was dismissed. The decree was affirmed by the circuit court, on appeal, and the libelant has appealed to this court. The amount of damages claimed in the libel is $27,000. The collision occurred on the second of November, 1875. The libel was filed on the fifth day of the same month, and the vessel was attached, under process, on the same day. On the 9th, Richard H. Seward, describing himself self as master of the schooner sued, filed a claim to her, in which he stated that he intervened, as agent of the owners of the schooner, 'for the interest of Daniel Marcy, William H. Sise, and others, owners of said schooner,' in her, and made claim to her, and averred that he was in possession of her when she was attached, and that 'the persons above named and others are the true and bona fide owners' of her, and that no other person 'is' her owner. The master signed the claim as 'agent,' and made oath to it 'that the owners of said schooner reside in Portsmouth, New Hampshire, and Kittery, Maine, and that this deponent is duly authorized to put in this this claim in behalf of the owners of the said schooner,' etc. On the twelfth of November, the value of the schooner was fixed by appraisement at the sum of $2,100, and a stipulation for value in that amount was entered into pursuant to the rules and practice of the district court, signed 'W. H. Sise & Co., by R. H. Seward,' and also signed by two sureties, not claimants. A stipulation for costs, entered into on behalf of the claimants, on November 9th, pursuant to the rules and practice of the district court, recites that a claim had been filed in the cause 'by Daniel Marcy, William H. Sise, and others, owners of said vessel,' etc. The answer, which was sworn to December 18, 1875, purports to be the answer of 17 persons, (two of whom are Daniel Marcy and William H. Sise,) whom it states to be 'claimants of the schooner' and 'respondents,' and the answer speaks of the vessel as the 'respondents' schooner.' The oath to the answer is made by a person who swears that he is 'agent for the schooner,' 'and transacts business for her owners,' and 'that the owners are not, nor is either of them, or the master thereof, within this district.'

The appellees moved to dismiss the appeal for want of jurisdiction in this court to entertain it, on the ground that the matter in dispute does not exceed the sum or value of $5,000, exclusive of costs, as required by section 3 of the act of February 16, 1875, (18 St. at Large, c. 77, p. 316.) We have held, at this term, on a full review of the subject, in Hilton v. Dickinson, [ante, 424,] that while we have jurisdiction of a writ of error or appeal by a plaintiff below when he sues for as much as or more than our jurisdiction requires and recovers nothing, the actual matter in dispute in this court, as shown by the record, and not alone the damages alleged or prayed for in the declaration, must be looked to in determining the question of jurisdiction. We have also held, in Town of Elgin v. Marshall, 106 U.S. 578, [S.C.. 1 SUP.CT. REP. 484,] that the required valuation is limited to the matter in dispute in the particular suit in which the jurisdiction is invoked; that any estimate of value as to any matter not actually the subject of that suit must be excluded; and that there cannot be added to the value of the matter determined in that suit any estimate in money, by reason of the probative force of the judgment itself in some subsequent proceeding. As is remarked in the latter case: 'The value of the judgment, as an estoppel, depends upon whether it could be used in evidence in a subsequent action between the same parties.'

In the present case, although the libelant may recover $27,000 against the vessel, because he demands that amount against her, it is plain that he cannot recover, on the stipulation for value, which represents her, more than $2,100, and cannot recover against the sureties in the stipulation more than that amount. Therefore, this being a suit in rem only, the value of the vessel, represented by the stipulation, is all that is in dispute, because that is all the libelant can obtain, or the stipulators can lose, in this suit.

The libelant contends, however, that a decree for him for $27,000 against the vessel would establish the liability of the claimants for that amount. But it could not be contended that this would be so in any case but one where the claimants were alleged and shown to have been the owners of the vessel sued, at the time of the collision. In the case of The Enterprise, 2 Curt. 317, the record showed that the claimant of the vessel was an owner of her during the voyage for which the wages sued for were claimed, and that by his answer he contested in that character the right to wages. For these reasons it was held that the decree in the suit in rem bound him personally, as res adjudicata; that a libel in personam against him would lie to execute that decree; and that the matter in dispute in that case was not the vessel or the existence of a lien on her. The proceeds of the sale of the vessel were $13.90, the decree was for more then $50, and $50 was the amount necessary for jurisdiction on an appeal. Under these circumstances an appeal was allowed.

There is no allegation in the libel in this case, as to who were the owners of the vessel at the time of the collision, and nothing is set forth therein as a foundation for any ultimate recovery against any particular persons, as such owners, of so much of the $27,000 claimed as may exceed the appraised value of the vessel. Rule 15, in admiralty, provides that 'in all suits for damage by collision, the libelant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone, in personam.' This rule, as is well settled, excludes the joining in one suit of the vessel and her owners; but it does not prevent the introduction into the libel of allegations as to the ownership of the vessel at the time of the collision, with a view to a proceeding to obtain such ultimate relief in personam, on the basis of a recovery in rem, as the libelant may be entitled to. Nor is there in the record in this case anything which can be held to establish, as against the claimants of the vessel, though they were her owners when the claim was filed, that they were her owners at the time of the collision, and so in a position to be liable to respond in personam for the damages suffered by the libelant, in a proper proceeding in personam.

If the libelant had recovered more than $5,000 in this case, in the circuit court, against the vessel, the claimants could not have appealed to this court, because, for the reasons above set forth, the amount in dispute would have been only $2,100, on the record as it stands. As we held in Hilton v. Dickinson, ubi supra, the statute does not give to the plaintiff an advantage over the defendant, under the same circumstances.

The appeal is dismissed for want of jurisdiction.


text: Talk:Starin v. The Jesse Williamson/Opinion of the Court


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Tutton v. Viti

''Sol. Gen. Phillips'', for plaintiff in error.

Edward Shippen, for defendants in error.

GRAY, J.

title: Tutton v. Viti


text: Talk:Tutton v. Viti

title: Talk:Tutton v. Viti


text:
Tutton v. Viti/Opinion of the Court

This is an action of assumpsit to recover back an excess of duties paid upon seven marble statues imported from Italy. The importers contend that these statues were liable to pay a duty of only 10 per centum ad valorem; but the collector exacted payment of 50 per centum ad valorem. The decision of the case turns upon the true construction of those provisions of the customs act which impose upon 'all manufactures of marble, not otherwise provided for, 50 per centum ad valorem;' and upon 'paintings and statuary, not otherwise provided for, 10 per centum ad valorem. But the term 'statuary,' as used in the laws now in force, imposing duties upon foreign importations, shall be understood to include professional productions of a statuary or of a sculptor only.' Rev. St. § 2504, Schedule M.

The material facts, as found by the special verdict returned in the circuit court, are as follows: Of the seven statues, two were of boys, taken out and sculptured from antique original models, the author of which is unknown. The other five statues were taken out and sculptured from original models-two of angels, made by Achille de Cori, and three, representing summer, autumn and winter, made by Carlo Nicoli, both of whom were professional sculptors of good reputation, and who had won at the Royal Academy of Fine Arts at Carrara the prize of a government pension at Rome; and they were the first productions from those models. All the seven statutes were executed by Giovanni Padula and Allesandro Gemignani, professional sculptors, in the studio and under the direction of Pietro Salada, who has been a professional sculptor in Carrara for the last 34 years. The cost of the statues of the two boys was 300 lire, or $58 each; of those of the two angels, 690 lire, or $133.40 each; and of those of the three seasons, 480 lire, or $92.80 each. Judgment was given for the plaintiffs upon the special verdict, and the only question presented by the record is whether this judgment is right.

The evident intent of congress in putting a much lower duty on statues which are 'professional productions of a statuary or of a sculptor' than on other 'manufactures of marble,' is to encourage the importation of works of art, by distinguishing between the productions of an artist and those of an artisan or mechanic; between what is done in a sculptor's studio, by his own hand or under his eye, and what is done by workmen in a marble-shop. In the same spirit, congress has exempted from all duty the importation of 'paintings, statues, fountains, and other works of art' which are either 'the production of American artists,' or are 'imported expressly for presentation to national institutions, or to any state, or to any municipal corporation.' Rev. St. § 2505.

There is nothing in the acts of congress to limit the professional productions of a statuary or sculptor to those executed by a sculptor with his own chisel from models of his own creation, and to exclude those made by him, or by his assistants under his direction, from models or from completed statues of another sculptor, or from works of art, the original author of which is unknown. An artist's copies of antique masterpieces are works of art of as high a grade as those executed by the same hand from original models of modern sculptors. The instructions of the treasury department (pursuant to which these duties were imposed) and the argument for the appellant proceed upon the ground that the statues were made by men not really professional sculptors, though calling themselves such, and were not real works of art, but mere manufactures of marble by good artisans. If this court were at liberty to consider the testimony sent up with the record, it might, perhaps, not reach the conclusion at which the jury have arrived. But the insurmountable difficulty in the way of the appellant is that by the special verdict the jury have found in the most explicit terms that all these statues were executed in the studio of a professional sculptor, and under his direction, by two other professional sculptors. These facts being conclusively settled by that verdict, the law requires that the judgment be affirmed.

title: Tutton v. Viti/Opinion of the Court


text: Talk:Tutton v. Viti/Opinion of the Court


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Howard v. Central Nat Bank

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

John D. Stevenson, for plaintiff in error.

W. M. Williams, for defendant in error.

HARLAN, J.

title: Howard v. Central Nat Bank


text: Talk:Howard v. Central Nat Bank

title: Talk:Howard v. Central Nat Bank


text:
Howard v. Central Nat Bank/Opinion of the Court

The Tebo & Neosho Railroad Company was authorized by its charter to construct and operate a railroad from some point on the Pacific Railroad, between the west bank of the Laramie river and Muddy creek, in Pettis county, in a southerly or southwesterly direction through Henry county, to some point on the state line between the north-west corner of Jasper and the south-east corner of McDonald county. It was also expressly authorized 'to extend branch railroads into and through any counties that the directors may deem advisable.' For the purpose of aiding in the construction by that company of a road from the junction of the main line with the Pacific Railroad, extending in a north-easterly direction, to Boonville, through the county of Howard, the county court of that county, in its behalf and after a favorable vote by the people, made a subscription to the capital stock of the company, and issued county bonds therefor. One-half of the bonds were sold by the county and the proceeds paid to the company, while the remainder were delivered in full payment of the balance due on the subscription. The subscription was made and bonds issued in pursuance of a provision in the company's charter which made it 'lawful for the county court of any county in which any part of the railroad or branches may be, or any county adjacent thereto, to subscribe to the stock of said company, * *  * and for the stock subscribed in behalf of the county may issue the bonds of the county to raise the funds to pay the same, and to take proper steps to protect the interest and credit of the county court; may appoint an agent to represent the county, vote for it, and receive its dividends.' Act Jan. 16, 1860, §§ 6, 8; Act Nov. 21, 1857, Charter of Osage Valley & Southern Kansas R. Co., Laws of Mo. 1857, adjourned session, 62.

The railroad was constructed through Howard county as proposed, and has been in operation ever since. The county court levied and sollected a tax to pay the interest on the bonds for seven years, regularly paid the semi-annual interest until March, 1878, redeemed a number of the bonds, voted the county's stock at several meetings of stockholders, and when, in 1874, the road so constructed north-easterly through Howard county was sold to the Missouri, Kansas & Texas Railroad Company, the county received 4,000 shares of the stock of the latter company in exchange for its stock in the Tebo & Neosho Railroad Company. Counsel for the defendant in error states that the county sold its stock in the Missouri, Kansas & Texas Railroad Company for $140,000. But no such fact appears in the findings. But it does appear that the county, when the case was tried below, still held that stock. And now it is contended in behalf of the county-and no other question is presented for determination-that there was no legal authority for this subscription or issue of bonds. The argument in its behalf is that the main road of the company was established on a line south of the Pacific Railroad; that Howard county could not, by subscription, aid in the construction of the main line; and could not, by subscription, aid in the construction of a road from the junction of the main line north-easterly through that county, because such a road would not be a branch road, but only an unauthorized extension of the main line.

We are of opinion that the road constructed through Howard county was, within the meaning of the statute, a branch of the original or main line. The defense cannot be sustained. The judgment is affirmed.


text: Talk:Howard v. Central Nat Bank/Opinion of the Court